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Newest Gov't Tracking Threat: Cell-Site Data Without a Warrant 107

Posted by Soulskill
from the by-hook-or-by-crook dept.
An anonymous reader writes "Earlier this year, the Supreme Court put an end to warrantless GPS tracking. Now, federal prosecutors are trying to get similar data from a different source. A U.S. District Judge has ruled that getting locational data from cell towers in order to track suspects is just fine. '[Judge Huvelle] sidestepped the Fourth Amendment argument and declined to analyze whether the Supreme Court's ruling in Jones' case has any bearing on whether cell-site data can be used without a warrant. Instead, she focused on a doctrine called the "good-faith exemption," in which evidence is not suppressed if the authorities were following the law at the time. The data in Jones' case was coughed up in 2005, well before the Supreme Court's ruling on GPS. "The court, however, need not resolve this vexing question of Fourth Amendment jurisprudence, since it concludes that the good-faith exception to the exclusionary rule applies," (.PDF) she wrote. ... With that, prosecutors are legally in the clear to use Jones’ phone location records without a warrant.'"
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Newest Gov't Tracking Threat: Cell-Site Data Without a Warrant

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  • by John Hasler (414242) on Wednesday December 19, 2012 @09:17AM (#42335751) Homepage

    And therefor her ruling is irrelevant to cases in which the tower data was acquired since the Supreme Court GPS ruling.

    • by SirGarlon (845873) on Wednesday December 19, 2012 @10:01AM (#42336009)
      I read TFS the same way. If we're right, I certainly don't see how this counts as a "new" threat as the headline says, since the good-faith exemption only applies to old cases.
      • I still have a problem with "good faith exception" when, in fact, government's actions were in clear, and I mean clear, violation of the Constitution.

        It shall be presumed wrong for government to gain access to anything without a warrant until argued otherwise.

        If one were setting up a nation, isn't hat what you'd do? Americans have a congenital distrust of actions of the government.

        • by Obfuscant (592200)

          It shall be presumed wrong for government to gain access to anything without a warrant until argued otherwise.

          Really? They can't look at you without a warrant? They can't get security camera tapes from a bank that was held up without a warrant? They can't gain access to information about who is driving your car without a warrant? I think it should be presumed there are lots of things a government can get access to without a warrant.

          If one were setting up a nation, isn't hat what you'd do?

          That might be what I'd do were I setting up a nation today, but we're talking about one that has already been set up. One that includes the word "unreasonable" in connection with sear

          • "They can't get security camera tapes from a bank that was held up without a warrant? They can't gain access to information about who is driving your car without a warrant? I think it should be presumed there are lots of things a government can get access to without a warrant. "

            I think you're looking at it the wrong way.

            Consider land-line phones. The wires are publicly accessible. It takes no special equipment (I know this for a fact) in order to hook up to someone's phone line and listen to their conversations, even though those conversations are being transmitted through public property and through a third party. Without knowing who is calling whom, your location can't be tracked. But certainly, the phone company has a record that a call was made from that number (that locati

            • by Obfuscant (592200)

              They probably, and quite reasonably, expect a similar level of privacy.

              You're holding a radio device, using a service that MUST know your approximate location in order to be able to work. Your expectation of "privacy" MIGHT be reasonable for the content of your conversation (since another party is involved, too), but as for your location, sorry, there is no reasonable expectation. Unreasonable, yes.

              In the judge's own words, the legal standard is "the amount of privacy a reasonable person would expect".

              And "ignorant" doesn't mean "reasonable".

              I submit that the majority of the public expects their location information to be private.

              I submit that you are absurdly incorrect, because the vast majority of the public is used to seeing phone books with their address liste

              • "You're holding a radio device, using a service that MUST know your approximate location in order to be able to work. Your expectation of "privacy" MIGHT be reasonable for the content of your conversation (since another party is involved, too), but as for your location, sorry, there is no reasonable expectation. "

                Repeat: it doesn't matter what YOUR expectation is. What matters, under the law, is what the AVERAGE reasonable person, who is not an expert or a techie, expects. And my bet is that the average person expects that information to be private.

                " And 'ignorant' doesn't mean 'reasonable'."

                On the contrary: in some circumstances, that is exactly what it means. The law is modeled after the average reasonable person. It doesn't matter if the average person is ignorant of how a piece of tech works. It is what that average person expects, regardless of any tech

                • To clarify a bit more: the phrase frequently used in legal circles is "a reasonable person of average intelligence".
    • by Hatta (162192) on Wednesday December 19, 2012 @10:21AM (#42336143) Journal

      If and only if the SCOTUS ruling on GPS tracking applies to cell phone tracking. In the GPS tracking ruling, the police physically affixed a GPS tracker to the exterior of the suspects vehicle without a warrant. With cell phones, you voluntarily carry the bug. That's a significant difference which might make the GPS ruling inapplicable.

      • by BitterOak (537666)

        If and only if the SCOTUS ruling on GPS tracking applies to cell phone tracking. In the GPS tracking ruling, the police physically affixed a GPS tracker to the exterior of the suspects vehicle without a warrant. With cell phones, you voluntarily carry the bug. That's a significant difference which might make the GPS ruling inapplicable.

        Exactly. If you're going somewhere you don't want to be tracked, you can always turn your cellphone off. But a hidden GPS tracking device attached to your car by police is harder to turn off.

      • I'm sure they'll try to use that argument. The problem is that if we allow the government to do that kind of thing, they'll just outsource all of their spying to private companies and come and retrieve the data when they want it. Any evidence they obtain without a warrant needs to be tossed out.

    • by Anonymous Coward

      Damn straight she is.

      If you think getting cell site data ought to require a a warrant, you are racist.

  • While it is in the government's interest to sidestep those pesky ten amendments wherever and whenever possible, it is certainly in the citizen's interest to allow their removal only from his cold, dead hand. The Supreme Court's ruling means all is not lost. It's not that law enforcement would be entirely reluctant to keep using these "formidable weapons against terror & drugs", since I'm certain some of them learned ethics from Horatio Cain and Andy Sipowitz, but at least they are aware what they're d
  • by girlinatrainingbra (2738457) on Wednesday December 19, 2012 @10:08AM (#42336051)
    Good-faith exception [wikipedia.org] to the exclusionary rule [wikipedia.org]: means that as long as the police thought that they had a valid warrant, their behavior is acceptable and that such illegally obtained evidence may be presented rather than excluded. But the point of the exclusionary rule is to stop police/prosecutor misconduct by not rewarding inappropriate behavior. A good faith exception means you can be sneaky and side-step the law by having a detective obtain a search warrant in bad faith (by providing or proclaming certain facts which are known to be untrue) and then by having separate police officers "act in good faith" by carrying out that warrant.
    .
    Why is it that for civilians/non-law-officers the concept is "ignorance of the law is no excuse"? Police instead get the "well as long as you intended/meant to do good, it's alright..." Regular people are held to the letter of the law even if they are not aware of the existence of the law. Why should police/detectives/prosecutors be rewarded for gaming the system or for an illegal search warrant? [warning, IANAL and this post strongly follows the story line of something from Law and Order about one or two years ago... :>) ]
    • by greggem (1044620) on Wednesday December 19, 2012 @11:40AM (#42336823)

      This is not actually true. If the warrant in your example was obtained based on a deliberate deception it would be invalid and the evidence from the search would not come in. If what you suggest was the case, there would be basically no point to the exclusionary rule since the police could freely lie in affidavits and have the warrants (or at least the evidence obtained from their execution) upheld.

      The good faith exception is easy to apply if you consider the purpose of the exclusionary rule. The exclusionary rule exists to deter unlawful police conduct.

      Consider the situation where the police request a warrant in good faith, and it is issued by a detached and neutral magistrate. On appeal, the affidavit is found to lack probable cause. Should the evidence be suppressed? The Supreme Court says no, because the police acted in complete good faith. There was no misconduct involved and applying the exclusionary rule in situations like this would not further its purpose since there is no unlawful conduct to deter. This is the proper application of the good faith exception.

      By contrast, excluding evidence obtained by lying in an affidavit for a warrant would have a very pronounced effect on reducing unlawful behavior by the police. Thus, no good faith exception for your dishonest detective. (Actually, he may be looking at a perjury prosecution.)

      Law school ruined Law and Order for me. My wife can't stand me explaining why everything on the show is wrong. Also she hates it when I yell "Objection!!" at the screen every few minutes during the second half of the show.

      • by Hatta (162192)

        Also she hates it when I yell "Objection!!" at the screen every few minutes during the second half of the show.

        I have the same problem, and all I did was play Phoenix Wright.

      • "If the warrant in your example was obtained based on a deliberate deception it would be invalid and the evidence from the search would not come in."

        That is ONLY true if the deception is detected.

        "Thus, no good faith exception for your dishonest detective. (Actually, he may be looking at a perjury prosecution.)"

        But again, ONLY if the deception is detected. That is hardly something you can assume will happen.

        • by Obfuscant (592200)

          That is ONLY true if the deception is detected.

          If the deception isn't detected, then a good faith exemption isn't necessary and is, in fact, irrelevant.

          But again, ONLY if the deception is detected. That is hardly something you can assume will happen.

          Yes, one has to assume that the defense council is capable and actually doing his job. If he is, the deception will be uncovered in the course of discovery and the next motion filed will be to exclude that evidence.

          • "If the deception isn't detected, then a good faith exemption isn't necessary and is, in fact, irrelevant."

            The exemption would not be necessary, agreed, but I would hardly call it "irrelevant". It is very relevant. It has happened. Far more than once, or even a few times.

            "Yes, one has to assume that the defense council is capable and actually doing his job. If he is, the deception will be uncovered in the course of discovery and the next motion filed will be to exclude that evidence."

            That's a really HUGE assumption, and I do not agree that it is anywhere near that simple.

          • by Qzukk (229616)

            Yes, one has to assume that the defense council is capable and actually doing his job.

            Yep, it's all the fault of them damn lazy nonpsychic public defenders not doing their job.

  • Current Trend (Score:2, Informative)

    by Anonymous Coward

    This has been going on for years in law enforcement. For a minimal fee, agencies or officers fax a request or use an online-portal to access the requested information from the provider...all without a warrant. Info that is commonly available is tower data, phone calls, texts, tapping, and a "special request" section. This is all given up to an officer without a warrant. All major cellular carriers participate.

    • by Obfuscant (592200)
      Yes, and lives have been (and could have been) saved by this.

      The Shue family lost in southern Oregon is an example, which is also the reason why it happens more often. Family lost in the snow while taking a shortcut. Husband dead. IIRC the wife and two kids were rescued. He died because he left them to try to find help.

      A cell tech in California saw the news and thought "if they have a cell phone, I bet we can find them from tower data", and pushed his bosses to allow it.

      It's now one of the first things

      • "It's now one of the first things done in any lost person situation."

        Then there should be no problem at all calling that "probable cause" and obtaining a warrant to do it. In practice, that can usually be done in less than an hour.

        • by Obfuscant (592200)

          Then there should be no problem at all calling that "probable cause" and obtaining a warrant to do it. In practice, that can usually be done in less than an hour.

          People who get lost in the wilderness are usually not in a municipality with an office full of prosecutors who can draft up warrant requests and then find the only judge for the county to sign it.

          It's lunacy to say that a situation where someone's life is in danger and their location data can save it requires a warrant before that information can be obtained. First of all, how do you imagine this location data is going to be used in a court of law in the first place? What jeopardy does getting this inform

          • "People who get lost in the wilderness are usually not in a municipality with an office full of prosecutors who can draft up warrant requests and then find the only judge for the county to sign it."

            That hardly matters, since it isn't people in the wilderness who will be going out to find them. It will be those people in that office (or one near it), putting on warm clothes and getting out their snowmobiles.

            Further, people lost in the wilderness are seldom within range of cell phone reception.

            "What jeopardy does getting this information put someone in?"

            The jeopardy is if the people in question are actually NOT lost in the wilderness. Authorities will have obtained location data on an innocent (and not endangered) party. That may not be a big deal to you, but

  • This isn't a case of a judge just tossing out the 4th Amendment. The situation is that the cops had a court order allowing them to grab the location data from the cell towers. It wasn't a warrant, but IANAL and I don't really understand what the difference is between the two. At any rate, the courts knew what the police wanted, and gave them the go-ahead.

    What the judge did in this case is duck the 4th Amendment issue completely, and seemingly intentionally. She ruled that since the cops had a court order, t

    • Re: (Score:3, Informative)

      by EmagGeek (574360)

      The difference is that a court order need still comply with the 4th Amendment. A court order is not a warrant.

      A warrant is a specific legal document with a specific legal purpose - to allow government to set aside your right to be secure in your person, papers, and effects, when there is probable cause to believe you have committed a crime; and with the express purpose of allowing that right to be set aside only for the express purposes outlined in the warrant - to search a specific place for a specific thi

  • by crazyjj (2598719) * on Wednesday December 19, 2012 @10:22AM (#42336157)

    No, seriously. Is there ANYTHING left that requires a warrant anymore, that can't just be bypassed with some "We thought he might be an immediate threat/terrorist" line?

  • by fearofcarpet (654438) on Wednesday December 19, 2012 @10:45AM (#42336333)

    Apparently the Fourth Amendment has all sorts of exclusionary clauses that us mortals can't see. Secure in papers and possessions? Well, email isn't really paper... No searches without warrants? It's ok if the police thought they had one. And tracking you without your knowledge isn't really a "privacy" issue. The Second Amendment, however, is clearly iron-clad, exception free, future-proof, and literal except that "militia" really means "individuals." Interestingly, though, I still can't own a plastic gun because undetectable guns are illegal--though perhaps all the loopholes in the Fourth Amendment supersede the Second Amendment? I can't wait to see how SCOTUS views equal protection when it comes to sexual orientation. Is it an iron-clad, literal right or are there more invisible exceptions that only special people in black robes can see? Or maybe it will suddenly be states rights issue this time (but not drugs, no the commerce clause clearly covers those.)

    • The Second Amendment, however, is ... literal except that "militia" really means "individuals."

      At the time, the "militia" consisted of practically every able-bodied male of military age, so "individuals" is essentially literal. That aside, however, the right itself has little to do with the militia:

      A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

      "A well regulated Militia, being necessary to the security of a free State..." is obviously just an introductory clause, explaining (in part) why the amendment was written. The actual right is in the second half, which clearly refers to "the right of the people", not "the right of the militia". Honestly, s

  • just think what they will be able to get away with when they disarm the population! who will stop them?

  • Why are we constantly having to ask for a simple warrant to track criminals? Politicians that support this are building a level of distrust.
  • I would hear stories about how poorly cellphones sent clear text data over the airwaves and how routine testing and goofing around with the equipment to intercept these signals allowed many a solider to find out his wife was banging someone else. I worked in IT, the guy nexto me worked with the radios. So I do not have first hand evidence of this, but I know ham operators have most of the knowledge neccissary to read the signals and that they had no to poor encryption for the longest time.

    You can bet action

  • I miss the days of having a pager. I'll turn on my cell phone if I want to make my location known to call a person back.

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