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Judge Nixes Warrantless Cell Phone Location Data 66

Posted by Soulskill
from the feds-can't-be-that-lazy dept.
Front page first-timer poena.dare writes "The government sought warrantless access to 113 days of location data for a Verizon Wireless customer. On Monday, a judge refused the request (PDF), ruling that cell phone users have an expectation of privacy in location information. 'There is no meaningful Fourth Amendment distinction between content and other forms of information, the disclosure of which to the Government would be equally intrusive and reveal information society values as private,' said Judge Nicholas Garaufis. Privacy advocates in DC will be cheering as soon as they climb out from under their desks!"
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Judge Nixes Warrantless Cell Phone Location Data

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  • by IonOtter (629215) on Tuesday August 23, 2011 @07:26PM (#37185480) Homepage

    May there be many more!

    Yay Judge Garaufis!

    • +1 MCP!

    • Re:FIRST BITCHSLAP! (Score:5, Interesting)

      by EdIII (1114411) on Tuesday August 23, 2011 @08:03PM (#37185816)

      Celebrations are hardly warranted here.

      This was one judge who made a correct decision and refused. However, Obama screwed us all over when he did not follow through on one his campaign promises when he let the carriers off the hook, and everyone else involved, in the warrantless surveillance of US Citizens.

      Verizon Wireless refused in this instance... but what should be far more concerning is that Verizon Wireless actually has 113 days of location data. It did NOT specify which days those were either. So far all we know, there is a Verizon Wireless database that can be used to see everywhere we have been and predict our behavior. Not to mention, also figure out what businsesses and people are at those locations at the same time.

      Basically, if you are afraid of Google indexing everything on the web and just taking pictures from the road, having Verizon Wireless being able to construct a complete profile of you based on your locations and cross-referencing other databases should be a startling revelation.

      I knew that with the e911 laws they had to isolate you within 100 meters right now (I think, different phases had different requirements), but I was not under the impression that Verizon Wireless would store data that massive. For what purpose could they possibly need historical positioning data?

      It's not anonymous data, or data that has been made anonymous, because the Feds are requesting specifics, so no demographics and usage bullshit will explain this.

      I would think everybody needs to wake up and at least realize the big picture here.

      Facebook, Google, Twitter, your ISP, and your wireless carrier can apparently be used to strip away all privacy, not just from you, but from everyone.

      So even if I don't participate and shut off the wireless phone, or go to a pre-paid with a forward so that I cannot be reliably tracked, I still need to recognize that you walking into my home creates a record that a relationship of some kind exists between us.

      Sure, call me paranoid. However, has it not been demonstrated in the past that if the tools are available, they will be used? Hoover and many other governments have proved it already.

      This is not a victory.

      A victory will be when it is illegal, punishable by prison terms, for any wireless carrier to record positioning data.

      • For what purpose could they possibly need historical positioning data?

        It's not anonymous data, or data that has been made anonymous, because the Feds are requesting specifics, so no demographics and usage bullshit will explain this.

        Need? They don't need it. But it's information with potential value, and also having it keeps the feds liking them, so they hang onto it.

        Note that even if there's fourth amendment protection, that doesn't mean there's constitutional protection to prevent them from selling it to the highest bidder. There may be legal protections, but it's a lot easier for a telecom lobby and a buyer lobby (say, insurance) to re-write the law than it is for them to re-write the constitution.

        • They aren't keeping this data for the feds. They are keeping it to sell to Google for more precisely targeted ads.

          And your specific location data will be anonymized by deleting the last digit of your phone number.

          • by EdIII (1114411)

            If it is anonymized as you say it is, then how can the Feds request specific data for a specific account?

            • They jus ask for the data for all phones with the same first digit as the one they want

              • I'm not sure how it is done where you work, but this information - location and usage - is not anonymized when you order it from the carriers with a subpoena (at least in New York). In our office, we use this data all the time to defend against auto accident litigants. (Hint: The plaintiff always swears he was not on the phone at the time of the accident.) Regardless, the stuff we get is never anonymized.
              • by EdIII (1114411)

                So 10 possible suspects?

                Whatever evidence is directly gathered from those records is inadmissible in court. I think I can certainly reasonably doubt the person's phone was at a certain place and time when the defense points out that it only means 1 of 10 possible people was there and not the defendant for certain.

                What about the rights of the 9 other people? Their privacy was invaded, and admittedly and quite obviously, they were not suspects and did not deserve to be under surveillance, or have their priv

                • No. If your phone number is for example, 980-976-5555, they send out all the location data for every phone with the number 980-9xx-xxxx.

                  It's because several of those people will be either (or both) child molesters or terrorists. Or they'll vote independent.

                  • by EdIII (1114411)

                    You know... tonight I figured out that if I twisted the right nipple counter clockwise 5 times... then let go... I could fart every single time. I mean every time. It's like The Matrix and I figured out a software bug. 100% of the time. 149 times I flipped heads.

                    Now.. I know your thinking what the fuck is this guy smoking?

                    That is how I felt reading your post.

                    Thank You, and I hope I returned the favor.

      • by dmitrygr (736758)
        Judge: > He is trying to make the point :)
      • by dmitrygr (736758)

        "The advent of technology collecting cell-site-location records has made continuous surveillance of a vast portion of the American populace possible: a level of Governmental intrusion previously inconceivable. It is natural for Fourth Amendment doctrine to evolve to meet these changes." - Judge Garaufis

        "The fiction that the vast majority of the American population consents to warrantless government access to the records of a significant share of their movements by "choosing" to carry a cell phone must be re

        • by GooberToo (74388)

          While the government's monitoring of our thoughts may be the archetypical Orwellian intrusion,

          The really sad thing is that, while that judge seemingly had a well rounded education, many schools no longer even consider teaching with Orwell's 1984. Presumably this is because the governments have decided teaching critical thinking about liberty is likely to lead to thought crimes. In another generation or so we'll very likely begin to have judges who have no such frame of reference and therefore have no clue as to the potential danger to society such contrary rulings may impose.

      • by IonOtter (629215)

        A victory will be when it is illegal, punishable by prison terms, for any wireless carrier to record positioning data.

        It has never been thus, but this is a step towards the goal. Learn to take pleasure in the small things, or you'll never reach your goal alive.

        • Yeah! We won this battle but not the war. Sure. I'm still PLEASED AS PUNCH!

          • by EdIII (1114411)

            Don't get me wrong. This is progress. I am just pointing out that I had no idea a wireless carrier was storing positional data on me for such a long time period. It's why I surf anonymously and use Google through a proxy. I refuse to be monitored in cyberspace, and you can greatly mitigate their ability to do so.

            I neither desire or will accept my actions being monitored and analyzed in meatspace either. I am an adult, not a criminal, and have given the government no legal reason to watch me, and I don't

      • by Ironchew (1069966)

        If you want privacy, don't broadcast wireless information over public land. Try turning off your cell phone, it really works.

        • by Anonymous Coward

          If you want privacy, don't broadcast wireless information over public land. Try turning off your cell phone, it really works.

          If you want privacy, don't send email over public networks. Try turning off your computer, it really works.
          If you want privacy, don't send letters via the public postal service. Try putting down your pen, it really works.
          If you want privacy, don't ever go out in public. Try staying in your house with the shades closed all the time, it really works.

          Alternatively, stop being an idiot an

        • No it doesn't. Some handsets can't be completely turned off. Take the battery out or use a foil bag.

          • No it doesn't. Some handsets can't be completely turned off. Take the battery out or use a foil bag.

            This.

            I will go so far as to say that most phones can not be completely turned off - and that's the way its been for at least a decade. And as you say, either pull the battery or put it in a shielded container (which will drain your battery really quick as your phone starts transmitting at max power trying to contact a cell tower).

            • by drinkypoo (153816)

              tape a piece of plastic to the inside of the phone that can be raised to cover the battery contacts. that way you don't need a carrying case for your battery to avoid shorting the terminals.

      • A victory will be when it is illegal, punishable by prison terms, for any wireless carrier to record positioning data.

        a real victory is when we see the lawbreakers actually GO to prison and be punished.

        making things illegal is not enough. there needs to be teeth behind it or it won't matter.

        if ceo's have a chance of truly suffering due to their lawlessness, things will change. until then, they'll dodge.

      • by adolf (21054)

        The only useful function I can conceive of for storing positional data long-term is for network analysis: Despite all the bitching and moaning that folks do about cellular services in general, it's no accident that it works as well as it does. Having some historical data available will make an engineer's job easier at improving things further.

        The privacy advocate in me says that such data, while useful, should have sufficiently large granularity that individual activities can't be discovered, but the engi

      • I've had a few this evening so please pardon me if this has been addressed. I find many of your points valid however there is a strong argument for one of your points:

        A victory will be when it is illegal, punishable by prison terms, for any wireless carrier to record positioning data.

        It's my understanding that cell phones use cell towers to relay messages, and many of these towers are operated by third parties in addition to the company. These third parties charge respective carriers for use. This is useful for many things otherwise how are you able to bill someone without knowing which user is receiving service? How do th

        • by EdIII (1114411)

          It's my understanding that cell phones use cell towers to relay messages, and many of these towers are operated by third parties in addition to the company. These third parties charge respective carriers for use. This is useful for many things otherwise how are you able to bill someone without knowing which user is receiving service? How do the messages get back to your phone if they don't know which tower you're connected to? It's like saying the server you're connected to shouldn't keep logs of people (or companies) who use their service which they charge for - what happens when you need to dispute a bill? I probably could've worded this better. I think for a good estimate of how long things are retained look no further than how long you're able to retrieve your statements from a carrier. Perhaps someone from the industry will shed more light on this.

          They don't need positional data to do that. That is like saying we need to tag each TCP/IP packet with geo-location data to know how to do "something". We don't. Everything required for billing is in the header, and more specifically, how the header causes the packet to "move".

          As for the billing part, that is pretty gosh darn simple. As far as TCP/IP is concerned, that is peering and transit agreements. When something leaves the infrastructure of one carrier and has to go to another, there are legal ag

          • They don't need positional data to do that. That is like saying we need to tag each TCP/IP packet with geo-location data to know how to do "something". We don't. Everything required for billing is in the header, and more specifically, how the header causes the packet to "move". ...

            Wireless has plenty of "tags" and "headers" for it to bill correctly. Wireless carriers have something pretty similar to peering and transit agreements. When you are roaming and connect to a tower it knows that you are not a customer. That is based on the data you are sending. It determines who it needs to bill before it even connects you, otherwise it would not allow the communication. Nothing in that process requires GPS positioning data, or triangulation data to be stored.

            Thanks for the clarification.

            That's a whole different argument here. I agree with you in principle, but unless you are a lawyer and have the time to read 250 pages, it is pretty hard to fully comprehend a TOS. That is why privacy statements should be simple, then explained further.

            Absolutely, the TOS should be aimed at their intended customers (lay persons) with privacy set to "fail safe" as in remain private.

  • AT&T was funneling network traffic directly to the Feds and walked Scot free for capitulating. Unless there are lock tight rules for suiting the s**t out of corporations that violate our privacy, a judge's "stern rebuke" means jack squat to me.

    • Re:Big Whoop (Score:5, Informative)

      by icebike (68054) on Tuesday August 23, 2011 @07:52PM (#37185720)

      Lock tight rules for suing corporations?

      You are joking, right? The law provides EXACTLY the opposite [cornell.edu]:

      (e) No Cause of Action Against a Provider Disclosing Information Under This Chapter.— No cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of a court order, warrant, subpoena, statutory authorization, or certification under this chapter.

      In the present case, they had two choices, seek a warrant, or notify the subscriber in advance if they used any lesser means (court order, administrative subpoena, etc). They apparently tried tor the lesser means and got denied. You wonder why they just didn't go for the warrant, since the criteria are almost exactly the same.

      This was a telemarketing fraud case apparently, because that's all that 18 U.S.C. 2703(c)(l), (d) deals with.

      • If I'm understanding your post, you misread mine. I'm saying there *aren't* lock tight rules...

      • by xenobyte (446878)

        Telemarketing?

        Why in the world would they need location data for that? - Whatever crime happened on the phone lines.

        If they wanted to know whether the suspect physically visited a certain location (the source of the calls perhaps?), they could ask for a list of times the suspect was in that area. This way his privacy isn't violated outside what is part of the investigation itself. Law enforcement cannot reasonably expect to be able to (ab)use location data to lead them to any co-conspirators; that would be

  • by chill (34294) on Tuesday August 23, 2011 @07:35PM (#37185560) Journal

    Let me explain something about D.C. They didn't crawl, they sprinted.

    5 minutes after the all clear was given to get back in the buildings, everyone was heading home to "make sure the kids/pets were safe". Instead of the normal traffic mess at 4:30 p.m., it started at 2:20 p.m..

    And if hurricane Irene passes anywhere this side of Bermuda, look for D.C. to be a ghost town as people "telecommute".

    • It's Wednesday today, I may do the same :-). Wait, I'm not from DC, I guess I will have to continue to work, just like a normal person.
      • by chill (34294)

        I guess I will have to continue to work, just like a normal person.

        Right. Which is it, then? Minesweeper, Solitaire or something on Facebook? :-)

  • by md65536 (670240) on Tuesday August 23, 2011 @07:42PM (#37185622)

    "Privacy advocates in DC will be cheering as soon as they climb out from under their desks!"

    in DC... under their desks...

    WHY would you rile privacy advocates by going and posting their locations?

    • No really!

      "Privacy advocates will be cheering - and here is a PDF of their current locations, expected future locations, and good sniper shot dat plus political weaknesses."

  • this is the first time in a while that I cheered for a judge. They can really suprise you sometimes

  • a geniuine outbreak of commonsense! Just because it's digital bits doesn't mean you can throw the Constitution in the trash. Bravo!

    Get a warrant! Follow due process! No more excuses about it being somehow a "new" paradigm.

  • From the opinion: (Score:4, Informative)

    by Oxford_Comma_Lover (1679530) on Tuesday August 23, 2011 @07:54PM (#37185732)

    The implication of these facts is that cellular service providers have records of the
    geographic location of almost every American at almost every time of day and night. And under
    current statutes and law enforcement practices, these records can be obtained without a search
    warrant and its requisite showing of probable cause.

    What does this mean for ordinary Americans? That at all times, our physical movements
    are being monitored and recorded, and once the Government can make a showing of less-thanprobable-
    cause, it may obtain these records of our movements, study the map our lives, and learn
    the many things we reveal about ourselves through our physical presence.

    ...

    [opinion quotes a dissent by judge Kozinski] "The Supreme Court in Knotts expressly left open whether twentyfour
    hour surveillance of any citizen of this country by means of dragnet-type law enforcement
    practices violates the Fourth Amendment's guarantee of personal privacy. When requests for
    cell phone location information have become so numerous that the telephone company must
    develop a self-service website so that law enforcement agents can retrieve user data from the
    comfort of their desks, we can safely say that such dragnet-type law enforcement practices are
    already in use. This is precisely the wrong time ... to say that the Fourth Amendment has no
    role to play in mediating the voracious appetites oflaw enforcement."

    ...

    The Maynard court noted two important distinctions between the short-term surveillance
    in Knotts and the prolonged surveillance at issue in Mavnard. First, the court concluded that
    while the individual in Katz did not have a reasonable expectation of privacy over his location
    while traveling from one place to another, the individual in Mavnard had a reasonable
    expectation of privacy over the totality of his movements over the course of a month. The court
    reasoned that the totality of one's movements over an extended time period is not actually
    exposed to the public "because the likelihood a stranger would observe all those movements is
    not just remote, it is essentially nil." Mavnard, 615 F.3d at 560. Second, the court concluded
    that people have an objectively reasonable expectation of privacy in the totality of their
    movements over an extended period because an individual's privacy interests in the totality of
    his movements far exceeds any privacy interest in a single public trip from one place to another.

    ...

    there are circumstances in which the legal interest
    being protected from government intrusion trumps any actual belief that it will remain private.
    In such cases, society's recognition of a particular privacy right as important swallows the
    discrete articulation of Fourth Amendment doctrine in Smith [indicating information conveyed to third parties is no longer protected by the Fourth Amendment] As addressed below, the court
    concludes that the "normative inquiry" envisioned in Smith is required here, and it preserves the
    reasonable expectation of privacy in cumulative cell-site-location records.

  • They were requesting "warantless" something from a Judge? If you're involving the Judge, get the warrant. Or were they trying to get a warrant and the article is being stupid and trying to call it warrantless?
    • Searches of stuff that you have an expectation of privacy for require warrants which require the Cops prove to the judge they have probable cause. cf 4th Amendment. Apparently they don't have it.

      So they are trying for a judicial order (doesn't require probable cause) under the Stored Communication Act.

      The judge says nope - the SCA is overridden by the 4th Amendment (praise the Founders!) because this request asks for 113 days of cell tower location data. That's broad enough to be considered a search.

      I hope

  • It gives people in power more reason to increase GPS accuracy to a finer detail :P
  • by retroworks (652802) on Tuesday August 23, 2011 @09:25PM (#37186414) Homepage Journal

    Earlier today I made a reference to "cookie camouflage", and got a very apt response about a program which runs in background as a browser. In this case, the solution would also be software - not software that blocks, but GPS etc. software which submits camouflage (false) data. http://slashdot.org/comments.pl?sid=2393464&cid=37178870 [slashdot.org] The thread identifies a legitimate attempt at camouflage strategy http://news.cnet.com/8301-13880_3-9950126-68.html [cnet.com]

    The point is that people's tolerance level to COMPLAIN about something is much lower than their tolerance level to DO SOMETHING.

    • by pacinpm (631330)

      Cell phones can be located even if they have no builtin GPS. You are always connected to at least one cell tower. It's enough to find your location within 100m. Not as good as GPS but probably good enough for cops to say you were in a vicinity of crimescene.

      • by Wymsey (952708)
        Keep your phone switched off until you need to make a call, off all night. You may need counseling but you will appear saner and safer for it.
  • by Laerien (92580) on Tuesday August 23, 2011 @10:09PM (#37186644) Homepage
    Gov't has been tracking cell phone locations without a warrant for years. There are quite a few cases on the books, and they represent only a tiny portion of those that are requested and denied. Check out this law review 'recent development' article [heinonline.org] from 2006, back when they were first doing this.
  • Privacy advocates in DC will be cheering as soon as they climb out from under their desks!

    That's where their GPS says they are. In fact, that's just where they toss their phones when they want to go off the grid.

  • This would have ended differently, had Judge Nicholas Garaufis been a friend of Jimmy McNulty.
  • That precedent is: "The judiciary will not always roll over and give 'law enforcement/national security actors' trolling licenses in company-held private databases."

    The lesson that community learned is: "Since the courts may say 'no', we just have to stop asking permission."

    There are plenty of ways to secure back-door and under-the-table access to the data they want. None of those risk the embarrassment and delay of some judge kicking over the traces and mistakenly deciding the Constitution matters. Any of

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