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DOJ: We Don't Need a Warrant To Track You 259

Posted by Soulskill
from the well-we-don't-need-a-warrant-to-fire-you dept.
GovTechGuy writes "The Department of Justice maintains it does not need a warrant to track an individual using location data captured from their cellphone. 'Cellphone location records are currently lumped under Title 1 and Title 2 of the 1986 Electronic Communications Privacy Act (PL 99-508), which cover stored communications and call details. Accessing those types of information typically requires only a court order, rather than a warrant, as is required for the contents of a phone call or digital message under Title 3.' That has prompted Maine and Montana to pass laws banning warrantless cellphone tracking; unfortunately, Congress doesn't appear close to doing the same."
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DOJ: We Don't Need a Warrant To Track You

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  • by ducomputergeek (595742) on Wednesday July 17, 2013 @04:25PM (#44312089)

    Ones that say that yes they do need a warrant. Meh, who am I kidding these days...

    • by ackthpt (218170) on Wednesday July 17, 2013 @04:35PM (#44312187) Homepage Journal

      Ones that say that yes they do need a warrant. Meh, who am I kidding these days...

      No! You are right, we should be fighting for our rights and these secret courts and massive intelligence gathering on the people is nothing short of what the Gestapo was engaged in back in .... ooo, is that a new Samsung GS4 Active?!? Shiny! Want!

      [NO CARRIER]

      • by chromas (1085949)

        is that a new Samsung GS4 Active?!? Shiny! Want!

        [NO CARRIER]

        AT&T?

      • by Seumas (6865) on Wednesday July 17, 2013 @08:53PM (#44314085)

        It doesn't matter. They are right. They do not need a warrant to track you. You know how we can confirm this? They have been tracking everyone. Gathering data on everyone. Violating the privacy and rights of everyone. Constitution and laws and ethics be damned. It doesn't matter. If our existing laws don't apply to them, then new laws won't, either. Make every law you want and their statement will still be correct... they will still not need a warrant to track you.

        Sort of the same way fenced-in "free speech zones" are fucking abhorrent and against the law . . . and yet deployed and enforced, anyway.

        I think any rational person sees how wrong all of this . . . but also how hopeless it is. The only option is to give up and accept it. That is exactly what they want, what they are counting on, and what will ultimately happen.

    • by Mashiki (184564) <mashiki&gmail,com> on Wednesday July 17, 2013 @04:40PM (#44312221) Homepage

      Ones that say that yes they do need a warrant.

      I think you've got that one covered already, it's called the 4th amendment. Too bad you guys have spent decades deciding that the Constitution is a 'living breathing document' instead of a foundational document which is immutable. And you have politicians who now run with that, and instead of laws being challenged against the document for a breach against the people, you use the mass of interpretations, and fine legal hair splitting so you get screwed over.

      • by Proteus (1926) on Wednesday July 17, 2013 @04:58PM (#44312425) Homepage Journal

        The 4th Amendment requires due process of law to conduct a search, and Congress has the power to define what that due process looks like. In the case of "stored data", they've decided that "due process" only requires a court order.

        Any 4th Amendment argument that a court order isn't sufficient due process is inherently one of interpretation regarding the intent of the 4th Amendment. This is one of the many reasons why the EFF is making a 1st Amendment challenge to the NSA's accessing of such metadata. The NSA followed established due process (they went to a FISC court and got a warrant), so there's no 4th Amendment claim really (unless you want to argue that the 4th's provisions were not intended to be satisfied by a secret court -- but again, that's interpretation).

        The living breathing document doctrine is not saying that the text of the Constitution is mutable, but that rather as society changes, our interpretation of what it means changes too. This has caused some problems, but it's also the root of a lot of good things, like the decision that the guarantee of "Freedom of speech" extends to all forms of expression.

        • by Intropy (2009018) on Wednesday July 17, 2013 @05:06PM (#44312511)
          Due process is the 5th. The 4th is "secure... against unreasonable searches and seizures... and no Warrants shall issue, but upon probable cause...". In short, to search you need a warrant, and for a warrant you need probable cause. Now I suppose in order to obtain a warrant once you have probable cause that could be said to require due process of law.
        • Re: (Score:2, Offtopic)

          by Anachragnome (1008495)

          Could someone do me a solid and check to see if the following website is available to you?

          http://www.george-orwell.org/1984 [george-orwell.org]

          As of this morning, it is "forbidden" from all machines in my house. I know this because I read chapter 1 last night just before bed.

          Thanks in advance.

        • by Rockoon (1252108)
          4th:

          The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

          Nothing about due process. Nothing about congress deciding what is ok and what is not ok. Nothing about laws.

          With all that said, your location data which is derived from
        • by msobkow (48369)

          Actually I don't believe that the 4th gives Congress the right to determine what "due process" is. The 4th is quite specific about a warrant being required for a search:

          The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

          • by msobkow (48369)

            Furthermore, have there not also been cases where the FBI was told they had to get a warrant before installing GPS trackers on a vehicle? How is stealing the data from a built-in GPS tracker any different?

        • by b4dc0d3r (1268512) on Wednesday July 17, 2013 @07:38PM (#44313639)

          The only time law enforcement needs a warrant is when the only person or organization that has a copy of the data says "no, you need a warrant".

          If you have a vehicle, house, or letter, and law enforcement asks if they can look about, and you say yes, you just waived your rights. If someone has your data, regardless of whether you think it belongs to you or not, and law enforcement asks to see it, that someone can say yes and they just waived their rights. Because someone else has a copy of your data, they can waive *your* rights.

          The problem here is really about how hard a group has to push back. With a National Security Letter, or visit from an agent, or any request other than a warrant, someone has to first say "no" to the request.

          The 1986 Electronic Communications Privacy Act only comes into play in these situations. I think it's important to consider that all of this hand-wringing is nowhere near the total number of requests that require hand-wringing.

      • by bmo (77928)

        >a foundational document which is immutable.

        According to Jefferson, it never was immutable.

        The idea that institutions established for the use of the nation cannot be touched nor modified even to make them answer their end because of rights gratuitously supposed in those employed to manage them in trust for the public, may perhaps be a salutary provision against the abuses of a monarch but is most absurd against the nation itself

        Yet our lawyers and priests generally inculcate this doctrine and suppose tha

        • by BlueStrat (756137) on Wednesday July 17, 2013 @07:37PM (#44313635)

          >a foundational document which is immutable.

          According to Jefferson, it never was immutable.

          The constitution is amendable by it's own design.

          That's entirely different from what the OP was discussing in the way of tortured & twisted interpretations of the existing plain language to fit an ideological/political agenda and avoid having all those pesky serfs^W^W^W^W^Wcitizens involved in the process, acting as if their will matters.

          If the US Constitution is a "living and breathing document", then "rights" of any kind have no meaning and the government's power over the citizens is effectively unrestrained.

          Strat

          • by bondsbw (888959)

            The Constitution guides the checks and balances that prevent power from accumulating outside of the will of the people. That's where its real power lies.

            But I think that one of those balances, the balance between the states and the federal government, has become eroded over time. The states don't have much real power to oppose the federal government, and that has helped create the heightened sense of distrust we are experiencing today.

            (The main check given to the states is the ability to amend the Constit

            • by danbert8 (1024253)

              The 17th Amendment was a mistake... Worst decision ever. The founding fathers already gave the people a voice in the legislature, the House of Representatives! DUH! Why the hell did anyone think it was a good idea to have the other half of the legislature be another voice of the people and a horribly unbalanced one at that? Repeal the 17th Amendment and maybe states rights will start to mean something again.

      • by Obfuscant (592200)

        I think you've got that one covered already, it's called the 4th amendment.

        The 4th amendment uses subjective words like "unreasonable". And "process of law". And the term "search". Are you really being subjected to a search when a company you do business with is giving away information about you that you didn't give them in the first place? Is it an unreasonable search of your person or property if someone tells the police "I saw Mashiki in the grocery store yesterday"?

        Too bad you guys have spent decades deciding that the Constitution is a 'living breathing document' instead of a foundational document which is immutable.

        It's very hard to claim that the Constitution is immutable when the Constitution itself contains the instructio

        • I don't care what the company does, my government should not be asking for that data in the first place. I expect them to show restraint and abide by the law we charge them with upholding. 'Thou shalt not troll for crime amongst the citizenry' should be an oath every LEO takes. O wait they already do when they swear to uphold the Constitution.... My government shouldn't be compiling lists and connections and vast meta data on its citizenry. Saying 'bad people do bad things' is not an acceptable excuse.
      • I think you've got that one covered already, it's called the 4th amendment. Too bad you guys have spent decades deciding that the Constitution is a 'living breathing document' instead of a foundational document which is immutable.

        ... part that's going to apply the 4th Amendment to cell phone calls and tapping internet communications. You know, stuff Madison et all had no clue was going to be on the horizon in the 18th century. So, you want to try again, since your "immutable" Constitution "only" mentions

    • by Anonymous Coward on Wednesday July 17, 2013 @04:41PM (#44312237)

      Warrants are meaningless.

      1. the feds just go to their secret rubberstamp court to get them
      2. this case https://en.wikipedia.org/wiki/Illinois_v._Gates made them a joke since an LEO can get one by claiming an anonymous tip.

      Here is how things happen now. Cops and feds use any kind of intrusive and illegal surveillance they want. Then if they don't like you for whatever reason get a warrant based on either national security or an "anonymous tip". Then they kick down your door, rough up your family, ransack your house, shoot your dogs (and you if you dont lick their boots or if they were just having a case of mondays). Then go to court claiming they found evidence which was really obtained through the illegal methods they used earlier.

      Then even if they get caught doing something blatantly illegal there is never any meaningful penalty for the individuals involved. At worst the taxpayers of the municipality pay out a settlement that is trivial compared to the total budget, most of which goes to the lawyers and not to the people who were wronged.

      We currently live in a police state because no practical limitations to the powers of the police.

    • by MozeeToby (1163751) on Wednesday July 17, 2013 @04:54PM (#44312381)

      Constitution trumps it anyway. The courts have already said that you can't have free speech without anonymity, I think there's an obvious argument to be made that you can't have freedom of assembly without anonymous movement. And that's even ignore the whole search and seizure thing. Apparently what we need is an amendment to specifically call out privacy, because the 1st, 4th, and 9th are not cutting it these days.

    • Yeah, because the constitution only applies to houses(?). That idea that the fourth amendment doesn't apply to digital privacy is about as ridiculous as someone saying freedom of press only applies to materials produced on a printing press. (Uh-oh, I hope no one gets any ideas.)
    • by fnj (64210)

      Like the others say, I don't think that's the way to handle it, especially since the supreme court is in the bag for this activity. Everyone involved in this activity is ALREADY in violation of their pledge to UPHOLD THE CONSTITUTION, which is written in plain language, specifically the 4th amendment. Their uppermost solemn duty is to decline to carry this out. In an unsubverted US they would all be facing severe penalties.

      A President set up the NSA unilaterally. I'm pretty sure a President could disband it

    • by msauve (701917) on Wednesday July 17, 2013 @05:14PM (#44312591)
      Their position is most likely based on Smith v. Maryland (5-3) [justia.com], which allowed the warrantless use of pen registers.

      However, pen registers only record the time, length and number called by the person being monitored. Cell phone records greatly expand the types of data gathered, adding location, incoming numbers (CID/ANI), types of "calls" (voice/SMS/data).

      In Smith v Maryland, they ruled out applying the 4th for a few reasons:

      (a) Application of the Fourth Amendment depends on whether the person invoking its protection can claim a "legitimate expectation of privacy" that has been invaded by government action. This inquiry normally embraces two questions: first, whether the individual has exhibited an actual (subjective) expectation of privacy; and second, whether his expectation is one that society is prepared to recognize as "reasonable." Katz v. United States, 389 U. S. 347. Pp. 442 U. S. 739-741.

      With regard to privacy expectations, they found:

      (b) Petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and even if he did, his expectation was not "legitimate." First, it is doubtful that telephone users in general have any expectation of privacy regarding the numbers they dial, since they typically know that they must convey phone numbers to the telephone company and that the company has facilities for recording this information and does, in fact, record it for various legitimate business purposes. And petitioner did not demonstrate an expectation of privacy merely by using his home phone, rather than some other phone, since his conduct, although perhaps calculated to keep the contents of his conversation private, was not calculated to preserve the privacy of the number he dialed. Second, even if petitioner did harbor some subjective expectation of privacy, this expectation was not one that society is prepared to recognize as "reasonable." When petitioner voluntarily conveyed numerical information to the phone company and "exposed" that information to its equipment in the normal course of business, he assumed the risk that the company would reveal the information to the police, cf. United States v. Miller, 425 U. S. 435. Pp. 442 U. S. 741-746.

      One significant difference these days is that most cell phone carriers have explicit, contractual privacy policies, which do provide a reasonable expectation of privacy (the ruling does address assumptions of privacy, but not explicit promises). And, different from that ruling, the caller does not voluntarily expose location information to the phone company. If one chooses not to have CID (or has no choice), they are not voluntarily exposing calling party information.

      • by sjames (1099)

        Even the original ruling was nonsense. I believe most people really do have the expectation that nobody knows if they dial a local number or when. They certainly have the expectation that nobody actively records it and reports it to another party not directly involved in connecting the call.

        Argumentation that people know it's possible is not a direction we want to go since we know it is possible to record a voice call and it is possible to implant a tracking device inside a person. We can easily imagine it

      • You don't have to wade very far through the legal apologia to find the key sentence:

        Second, even if petitioner did harbor some subjective expectation of privacy, this expectation was not one that society is prepared to recognize as "reasonable."

        Translation: go screw yourself, we're not going to recognize the 4th as applying to pen registers because we don't want to. The whole 'not one that society is prepared to recognize as "reasonable"' is subjective nonsense, or in less polite language, something the majority on the court pulled from their posteriors because that's the conclusion they wanted to come to.

        They don't know what society is prepared to recognize as re

        • by msauve (701917)
          The Supremes are full of such disingenuous logic. The Supreme Court is also the biggest failure of our Constitution. As a federation of States, it should have consisted of something akin to a rotating collection of State justices. The Feds deciding what the Feds can do provides no real check on Federal power. When the Supremes say that "red is green," that's what it is, no matter how obvious that error is to the people. And there's no Constitutional provision to recall or remove them for decisions which cle
          • by Zak3056 (69287)

            They've ruled that blacks aren't citizens (Dred Scott), that corporations are (Citizens United), that growing a garden is Interstate Commerce (Wickard v. Filburn), and that taking private property and giving it to another private party is "public use" (Kelo).

            I agree with your post almost completely, but I have to disagree with you on Citizens United. I'll admit to NOT being conversant with the actual opinion(s) in the case, but in the broad sense, I think it's absurd to say that, for example, you and I acting together do not have the same rights as we would if acting separately.

            To illustrate my point, I'll ask a simple question: Is the New York Times protected by the first amendment's protection of a free press?

            If corporate entities are not entitled to the same

      • by msauve (701917)
        I'll add to my comment.

        Clearly, the DOJ does think a warrant is needed - which is why they got one from a secret court. Without that, they would have had to rely upon the voluntary cooperation of the carriers to provide the information. Where a warrant is needed, the 4th applies, specifically the requirement for probable cause.

        So, what they're really arguing is that the Constitutional requirement of probable cause doesn't apply - something with no case history to support it, AFAICT.
    • by erroneus (253617)

      Either that or start getting more serious about the constitution and something known as the spirit of the law.

  • But beyond a little moaning before the TV cameras they're thick as thieves behind closed doors and we can just about forget them rolling this one back or reigning it in.

    So, it's not Bush or Obama, but Ronnie we can thank for this.

    • by fnj (64210)

      Wrong. A President instituted the NSA on his own. A President could abolish the NSA on his own.

      • by GlennC (96879)

        A President instituted the NSA on his own. A President could abolish the NSA on his own.

        A President could also ride a horse to victory in the Kentucky Derby....that doesn't mean a President is LIKELY to do so, though.

        • by fnj (64210)

          You are looking at it ass-backwards. Find an honest man with core principles who recognizes the NSA should be abolished, and is otherwise well qualified to be President, and help see him through to nomination and election. If you need a third party, add that to the list of things to do.

          Nothing worth doing is easy.

  • Soo... since it's pretty well established at this point that the DOJ does not respect the authority of the US Constitution, it would stand to reason that We, the People, should as a matter of principle and duty refuse to respect the authority of the DOJ, correct?

    Bullshit like this is why I feel an irresistible urge to pimp-slap someone every time I hear the Constitution referred to as "a living document."

  • If they do not want to obey the laws, then neither shall I.

    • by gl4ss (559668)

      would you even know the law?

      if doj thinks it's free data, how long before you're starting to get advertisements based on where you were at? I mean, generally in the west not even the phone companies are allowed to use the data for their random benefit at will.

  • by fnj (64210)

    Dear DOJ:

    And WE don't need a warrant to vote for the first presidential candidate who promises to rock your world and make sure your out of control ass gets curbed, and to prosecute everyone who failed to honor their pledge to UPHOLD THE CONSTITUTION. In fact maybe the NSA doesn't even need to exist. We won WW2 without you.

    Sincerely,
    voting citizens who have a clue and a care

    • Re:Dear DOJ (Score:4, Insightful)

      by c0lo (1497653) on Wednesday July 17, 2013 @05:06PM (#44312515)

      vote for the first presidential candidate who promises to rock your world

      *crickets*...*crickets*...

    • by MitchDev (2526834)

      Yeah, like that candidate:

      A) Exists
      B) Would even try to carry through on his promises
      C) Would be able to get corrupt congress-critters to actually pass anything that helps the problem
      D) Would make it on the ballot without being blasted by "Insane, crime-loving commie" propaganda from the big two parties...

      • by fnj (64210)

        Yeah, so let's not even try? Tyranny couldn't exist without attitudes like that, backed up by resignation.

      • by Artifakt (700173)

        When the Federal Government expanded imminent domain, eight states passed laws that restricted that power. On this issue, two states (so far) have passed laws restricting it. Lobby your state to restrict the things where the federal government overreaches. If you can get your state on the bandwagon, there can be a candidate for federal office that takes it just as seriously as you do, and as your state does. If your state will pass the laws, your state will also pick Congressmen who will work for the same l

    • Re:Dear DOJ (Score:5, Insightful)

      by CanHasDIY (1672858) on Wednesday July 17, 2013 @05:15PM (#44312607) Homepage Journal

      Dear DOJ:

      And WE don't need a warrant to vote for the first presidential candidate who promises to rock your world and make sure your out of control ass gets curbed, and to prosecute everyone who failed to honor their pledge to UPHOLD THE CONSTITUTION. In fact maybe the NSA doesn't even need to exist. We won WW2 without you.

      Sincerely,
      voting citizens who have a clue and a care

      Tried it, didn't work - remember "Hope and Change?" Hell, not only did dude fail to uphold his campaign promises, the motherfucker doubled-down on anti-Constitutional activities!

      Don't feel bad, I voted for the bastard once myself.

      • by fnj (64210)

        Funny, I could see right through him from the word go, as soon as his name came up for nomination. Once he and the dope on the R ticket were nominated it was all over.

        • Meh, was young and impressionable (plus, excited about voting for the first time).

          Didn't make the same mistake twice, and I won't ever make that one again.

        • by mark-t (151149)

          If it were really all over at that point, it would only be because a majority of voters who don't like either of the main two candidates will still only ever vote for one of them, choosing what they feel is the "lesser of two evils", and in particular, they will do this even *if* there was an independent that might have more closely represented their own views than either of the primary candidates.

          But, a combination of apathy and a rather large helping of paranoia about "the wrong guy winning" overrides

          • by vux984 (928602)

            Both the voters and the candidates are playing the game according to the rules of the game.

            Change the rules of game. That's the problem. The first-past-the-post elections are part of the problem, but there are several others.

            • by mark-t (151149)

              The rules are fairly simple in that whoever gets the most votes wins. If enough people really didn't like the "main two candidates" (which by all appearances, generally seems to generally be the case already), and weren't so deathly afraid of what everybody else was going to vote like to risk voting for somebody they might have had more in common with, but think that they don't have a chance of winning (this one's a harder problem to tackle), that the nationwide cumulative effect of enough people of peop

  • by asmkm22 (1902712) on Wednesday July 17, 2013 @04:54PM (#44312387)

    I wonder how the government would feel if someone were to put up a website that gives real-time information about the location of members of congress, based on cell-phone data? Surely that wouldn't make them feel a bit uneasy, even if there were no publicly-ill intentions, right?

    • I wonder how the government would feel if someone were to put up a website that gives real-time information about the location of members of congress, based on cell-phone data? Surely that wouldn't make them feel a bit uneasy, even if there were no publicly-ill intentions, right?

      Judging from recent events, most likely that person would be declared a traitor and enemy of the state, [wikipedia.org] and if they did not flee, [wikipedia.org] the storm troopers would come down on their ass like motherfucking Mjölnir, the hammer of Thor.

  • by Picass0 (147474) on Wednesday July 17, 2013 @04:56PM (#44312407) Homepage Journal

    I'm so glad we have a two party system where one party is so very obviously good and virtuous and the other is evil for all to see. We should keep voting blindly along party lines based on the rhetoric these people speak rather than looking at their actions.

    I must excuse myself, the Two Minute Hate is about to begin.

  • Hitler and the KGB only WISH they had balls this big...

  • How does this not violate the precedent set by US v Jones?
  • If your reasoning includes the word "lumped," you might want to re-think it.
  • by SlithyMagister (822218) on Wednesday July 17, 2013 @05:18PM (#44312631)
    Since governments in general disregard laws with impunity, what difference can it possibly make to pass laws requiring warrants? They will do what they are going to do anyway. The existence of a law will not change this behaviour. The powerful are not constrained by laws, only the weak.
    • It makes a very big difference if you have an independent judiciary that can trow cases out based on this sort of behavior.

      Which has happened.

       

  • by QuasiSteve (2042606) on Wednesday July 17, 2013 @05:51PM (#44312893)

    http://rt.com/usa/aclu-license-plate-surveillance-216/ [rt.com]

    The American Civil Liberties Union has released documents confirming that police license plate readers capture vast amounts of data on innocent people, and in many instances this intelligence is kept forever.

    According to documents obtained through a number of Freedom of Information Act requests filed by ACLU offices across the United States, law enforcement agencies are tracking the whereabouts of innocent persons en masse by utilizing a still up-and-coming technology.

  • I normally don't resort to what is basically name-calling, but given how the 4th Amendment patently requires a number of criteria they are stating they will no longer bother with, that would normally make them criminals. However, with this statement, they've removed much of the ambiguity surrounding the searching issue, and added a significant amount of intent on their part. So instead of "merely" having criminals in high places at the DoJ, we have traitorous and un-American criminals instead.

    This isn't, un

  • ... as they do unto you.

    Keep track, survey, note times, post, etc. etc.

    Are there any projects -- is there anyone 'beschäftigt'
    in this? It could be the chilling factor to put all such
    state-run activities on ice. Notes such as "At 11:34 in
    the a.m. senator ExWhyZee drank coffee" will get
    their import sooner or later. If you don't think so you're
    obliged to give a 'why' for the current surveillance-to-
    the-last-comma.

    Cheers my US compadres!

  • Is someone to post detailed location information of a key Congress member or two to the internet. Now if Snowden had collected some of that, it would really have been impressive to release it about now. It might get them moving on limiting the NsA's powers as well.
  • The DOJ assertion is so out there that the letter justifies a court order and freedom of information request to very that these people are not acting as agents of foreign nations.

    There are hundreds of courts and a hundred actions could freeze the information and eventually unearth the social network of anti americans that are involved in this plot.

    Ties to the EU, France, Germany, China and more are clearly important links....

    It is time for action... or just another beer.

  • Someone please explain to me how the location of a call isn't considered one of the "call details"? After all, the IP address of a visitor to a website is considered part of the connection details or metadata. I don't see how location could be separated from 'call details', but I'm sure the government has a special twist about that, so what is it?
  • Obama will fix this. Just keep waiting for it!

  • Your location is detectable because your phone has a transmitter inside. Unless it is free to operate, it will not transmit, and your location cannot be calculated. It requires power to operate. (For the optimists out there, it also requires not being in airplane-mode to operate.) It requires being in "free-space" to operate.

    You are therefore free to decide when, and when not, you wish your location to be known. Perhaps you know someone who can install a power-off switch in the phone (or convert the ringer

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