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The Courts Cellphones Government Handhelds Privacy Security

Stingray Case Lawyers: "Everyone Knows Cell Phones Generate Location Data" (techdirt.com) 171

An anonymous reader writes with news that the Maryland Attorney General is arguing that anyone who has ever used a smartphone knows it's tracking them, so no warrant is needed for stingrays. Techdirt says: "Up in Baltimore, where law enforcement Stingray device use hit critical mass faster and more furiously than anywhere else in the country (to date...) with the exposure of 4,300 deployments in seven years, the government is still arguing there's no reason to bring search warrants into this. The state's Attorney General apparently would like the Baltimore PD's use of pen register orders to remain standard operating procedure. According to a brief filed in a criminal case relying on the warrantless deployment of an IMSI catcher (in this case a Hailstorm), the state believes there's no reason for police to seek a warrant because everyone "knows" cell phones generate data when they're turned on or in use.

The brief reads in part: 'The whereabouts of a cellular telephone are not "withdrawn from public view" until it is turned off, or its SIM card removed. Anyone who has ever used a smartphone is aware that the phone broadcasts its position on the map, leading to, for example, search results and advertising tailored for the user's location, or to a "ride-sharing" car appearing at one's address. And certainly anyone who has ever used any sort of cellular telephone knows that it must be in contact with an outside cell tower to function.'"
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Stingray Case Lawyers: "Everyone Knows Cell Phones Generate Location Data"

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  • by Falconnan ( 4073277 ) on Tuesday January 26, 2016 @08:41AM (#51372679)
    The mere fact that the data exists is not itself the point. It is completely reasonable to expect some degree of privacy in one's communications regardless of how easily they are intercepted (which everyone "knows"). Physical mail is easily intercepted and read too. Is this the new standard that will allow the police to randomly read an entire neighborhood's mail as well? What ever happened to "probable cause"? But then, I was born in the 20th century, so I guess I'm just old-fashioned.
    • by Anonymous Coward

      Dude, it's Baltimore. That's all the probable cause you need.

      • by Anonymous Coward

        Dude, it's Baltimore. That's all the probable cause you need.

        Dude, it's the US of A. That's all the probable cause you need.
        I wonder why the US government doesn't just imprison all its citizens. No more crime on the streets, no more terrorist attacks. No more car accidents. No more deaths. Mission accomplished as Bush would say.

        • They're working on it. They are making it a lot harder for terrorists to get in [terrorists being anyone outside of America] and making it harder for terrorists to get out [terrorists being anyone inside of America].

          Politicians are the wardens, law enforcement and the military are the guards, the wealthy are the visitors.

    • by Anonymous Coward

      They left off not only the "D" but the name.

      Brian E. Frosh (born October 8, 1946) is an American politician from Maryland and a member of the Democratic Party.

      https://en.wikipedia.org/wiki/Brian_E._Frosh

    • by msauve ( 701917 ) on Tuesday January 26, 2016 @09:43AM (#51373021)
      First, most cell phone companies have explicit privacy policies, so there is a reasonable expectation of privacy. Second, the cops have no license to transmit on cellular frequencies - so can't legally use a Stingray without a warrant, regardless. (when an individual uses a cell phone, they're transmitting under authority of the carrier's license)
      • Plus, the stingray system doesn't work within the GSM / phone standards, they break and degrade the system. They are not normal passive players in the phone system, they are rogue operators. They transmit false signals to elicit data.

    • by qwijibo ( 101731 )
      If their argument is that the data is harmless, they should be required to publish everything they collect.

      Let private citizens look through the data and have the same harmless view of police and politicians cell phone data. I'm sure there would be a big market for data about the location of every cell phone that spent more than 5 minutes in close proximity to a police station, how recently that occurred and how frequently it happens. It would be a great way to find undercover officers, speed traps, and c
    • Under existing Fourth Amendment law, you are sharing the location information with the cell company and therefore have no legitimate expectation of privacy in it.

      Under *Existing* law. There is a reason why SCOTUS is pushing back a little against Orwellian surveillance, and eventually stingray cases will get to them. Hopefully the case will be brought to them because of a good defense attorney *rather than* because it is the case of choice for the Department of Justice.

    • by mrchaotica ( 681592 ) * on Tuesday January 26, 2016 @10:46AM (#51373457)

      Even if cellphones are technically trackable, what "everyone knows" is that the government is legally required to refrain from using that information without a warrant. You know, the whole "rule of law" and all that? Any government official who has problem with that concept should be removed from office.

      • "Everyone knows" that police carry loaded handguns, so if you get shot by one after assaulting him when he came upon you in the middle of your 7-11 stickup, he's totally justified in using it on you. After all, "everyone knows" police carry, and "everyone knows" they won't hesitate to bypass your right to trial, right to attorney, Miranda rights, etc, and just dispense street justice right on the spot. It should be OK, right? After all, "everyone knows".
        • It's kind of a shame, too... If everyone DIDN'T know they were packing heat, maybe they'd be a little more hesitant to use it so as to take serious criminals in life or death situations by surprise. Oh well, what they lack in smarts they make up in sheer numbers, I suppose... Plus, uncle Sam's gifts of barely outdated military hardware has really exacerbated the problem. When you get new toys, it's only natural you're going to want to use them. Which is why we now have little bergs with a population around
          • by KGIII ( 973947 )

            A local community's police force (well, back in Maine which is my home - I'm just not there at the moment) was going to get an armored personnel carrier for their tiny police department, care of Uncle Sam. The locals found out about it, before it happened, and went ape shit and pretty much told them to go pound sand. The local police department did not get their toy.

            The local college had, for some reason, M16s issued - but no training. They had 7 of them issued, one broke, and was sent back. Again, the town

  • Missing the point? (Score:5, Interesting)

    by stoborrobots ( 577882 ) on Tuesday January 26, 2016 @08:42AM (#51372689)

    He's missing the point. Everyone knows that the post office handles all your mail, but it's still not allowed to tell the police what you're receiving without a warrant. The existence of a record does not imply the availability of that record to law enforcement or the government.

    • by houghi ( 78078 )

      We have to see what the outcome is to see if he is missing the point. I would not be surprised if they agree with him.

      They are just saying: We do things regardless if tjhey are illegal or not, who fucking cares? Apparently not enough people.

      The worst outcome for them will be a "Naughty boy." and perhaps find a new way of doing whatever they want.

      It like telling a kid not to take a cookie and then do nothing when they do. It starts with taking the next cookie. At 16, the kid is a horror to the whole neighbor

    • All mail sent and received is stored in a database by addresses sent from and received to.
    • He's missing the point.

      No, he's making a legal argument. Your ability to come up with a persuasive metaphor does not mean your metaphor will be legally useful--you also have to understand the law as it applies to the facts.

    • Actually it can, and does tell them everything.
      U.S. Postal Service Logging All Mail for Law Enforcement

    • Ignore my other post... apparently link got striped out
      Actually it can, and does tell them everything.
      U.S. Postal Service Logging All Mail for Law Enforcement [nytimes.com]
  • Post that shit online at 5 sec intervals.
  • So why the secrecy (Score:3, Interesting)

    by Anonymous Coward on Tuesday January 26, 2016 @08:49AM (#51372717)

    Then why did they keep the Stingray surveillance secret? They should immediately release all the Stringray documents into the public domain! Even now they're fighting tooth and nail to conceal not just the details of the device, but the details on when it was used!

    I also don't think people realize the depth of the surveillance problems with these smartphones, and I bet most people think dumb phones (without GPS) don't track location at all. They would be wrong, even a dumb-phone is location trackable. So his claim of full knowledge of everyone (and some sort of implicit agreement) is therefore false.

    But Stingray also tracks ASSOCIATIONS, who you call and who calls you, even if you're not the target being followed, and possibly even the calls themselves and other data. We don't really know because Stringray is just one brand and we can't see the data on what these devices are capable of, we only know that modern calls have piss poor encryption courtesy of meddling.

    i.e. it violates the freedom of association by imposing warrantless surveillance.

    It's been used against journalists to locate their whistleblower sources and against protestors to block protests, so it does not have mass knowledge+consent.

    • by NotInHere ( 3654617 ) on Tuesday January 26, 2016 @08:56AM (#51372759)

      Then why did they keep the Stingray surveillance secret? They should immediately release all the Stringray documents into the public domain!

      Everybody knows that the information that they collect cell phone data is a secret.

    • by DarkOx ( 621550 )

      it violates the freedom of association by imposing warrantless surveillance.

      I am pretty strong strict constructionist who is also willing to read in some implicit rights where I feel they are necessary to exercise the other explicit rights. The 9th amendment exists to support that interpretive action.

      For examples, if I were a SCOTUS justice I would hold that the various travel restrictions like the no-fly list are unconstitutional because there is no due process around who is on the list. We have an explicit right to association and assembly in the first amendment. One must be

      • by N1AK ( 864906 )

        One must be able to go to where the assembly is taking place, if air travel is the only reasonably way to get there due to say time constraints, the government cannot prevent a citizen from traveling by air, without due process of law.

        This seems like an arbitrary line to draw, especially as an example of why it is wrong to draw an arbitrary line counting privacy as part of the right. Surely requiring people have a driving license would breach your definition, how else could they reasonably reach a remote lo

        • by Uberbah ( 647458 )

          One must be able to go to where the assembly is taking place, if air travel is the only reasonably way to get there due to say time constraints, the government cannot prevent a citizen from traveling by air, without due process of law.

          This seems like an arbitrary line to draw, especially as an example of why it is wrong to draw an arbitrary line counting privacy as part of the right. Surely requiring people have a driving license would breach your definition, how else could they reasonably reach a remo

          • by N1AK ( 864906 )
            So you're suggesting that the government can't restrict you from being a passenger in a vehicle in case stop you from assembling but it can restrict you from operating a vehicle even if it that would stop you from assembling? Because the right to assemble, and other rights granted by the constitution, can be withheld if you don't have the appropriate government license?
            • No rights permit just any action to satisfy. If you're driving, you may not hit pedestrians even if they're in the way and you're late to the assembly. Nor is the government required to assist you in getting to the assembly, just as it is not required to supply you with a podium to speak from, or a printing press. The government is forbidden from impeding your travel, provided you use legal modes of travel. You may not operate a motor vehicle on public roads without a license. You may not pilot a plan

            • by Uberbah ( 647458 )

              I'm saying the comparison between driving a car and boarding a plane as a passenger as a fallacious one. You need a drivers license to drive, but you don't need a pilot's license to board a plane. Anymore than you need a license to board a bus or a train.

    • by AHuxley ( 892839 )
      Its cheaper just to collect it all. Signals intelligence is fast, makes a nice computer map, gets a voice print and tracks anyone who stopped for a talk or walked with a person.
      The only magic is never to let interesting people know how easy it is. They can always stop using a cell phone.

      Then its back to shift work and teams of officials doing surveillance. In the 1940-70's it was still the only and best option with helicopters, radio, beacons, phone taps. Mil or gov teams to track a person anywhere g
    • The secrecy is how we know that the government has made a significant effort to try to determine its legality, and they determined it to be illegal. Whether or not they're correct that it's illegal: that's tricky, but they think it's illegal.

      I wish there were some mechanism for bringing these suspected criminals to justice. I don't mean punishment; I mean trials. Prosecute one of them for violating FCC rules or for computer misuse/fraud in doing their MitM attacks, and make them show how they got a get-out

  • By their logic (Score:5, Insightful)

    by RavenLrD20k ( 311488 ) on Tuesday January 26, 2016 @08:55AM (#51372747) Journal
    By their own logic I should have just as easy of a time to be able to set up my own cell towers and siphon in all the location data that comes into it, and the government can't say boo about it. I should be able to know where everyone who connects to my personal cell tower is located at that moment, in an effort to stalk my girlfriend without her ever knowing about it. As noted in other threads already: They can't legally expect to be able to go through the mail of an entire neighborhood at the post office level, as such, they should not expect to be able to do essentially the same thing with setting up their own cell towers.
    • By their own logic I should have just as easy of a time to be able to set up my own cell towers and siphon in all the location data that comes into it, and the government can't say boo about it

      Surely you jest. Even if you were serious, you probably don't have the resources to pull it off nor you may have any ideas of how to make money off this. But all it takes is someone to plant this idea in the head of some pointy haired boss in Goldman Sachs or JPMC. There are sitting on two trillion dollars of excess capital and don't know what to do with it. They might decide to do it. Atleast with the government you might get a chance to vote against it or legislate against it. But once Goldman does it, th

    • So also by that logic, we're also allowed to track all LEO, judges, DAs, and politicians by their phones... right?
  • by tlambert ( 566799 ) on Tuesday January 26, 2016 @09:03AM (#51372793)

    Removing the SIM doesn't change the IMEI.

    Hailstorm tracks by IMEI; SIM data is incidental. Someone should demonstrate tracking him with his SIM removed. I expect he might be ... disturbed.

  • Everyone knows that the windows of the Stingray lawyers generate visual data. That's why it's OK to put surveillance drones at each of the windows of Stingray lawyers. Also, everyone knows that sound is just vibrations, which is why it is also OK to use a laser's reflection off the windows of the Stingray lawyers to record what they're saying. Everyone knows it's really easy to intercept mail and anyone who really wanted to could do it, which is why it is OK to read the Stingray lawyers mail.

  • by Anonymous Coward

    So the /. readership is mostly comfortable with Shodan because, although the webcam owners aren't broadcasting, if you broadcast a signal into someone's home, you might get a signal in return.

    However, if that person walks out of their home with a device that broadcasts all the time no matter where it is, the /. readership is uncomfortable with that signal being received.

  • by Anonymous Coward

    Why get upset? Everyone knows it's happening. Therefore you must expect it and tolerate it when the police do it.

  • Everyone also knows that those who built the phones intentionally made it so we cannot disable that little "feature" without rendering the device inoperable.

    Since we have no means of disabling it, other protections must be in place to safeguard the data. Thus, just flashing a badge or a NSL isn't sufficient. ( nor lucrative government contract deals )

    Target a specific device with a warrant and few will have any issues with it. ( other than the government )

    Keep up the mass surveillance and this house of ca

  • by Munchr ( 786041 ) on Tuesday January 26, 2016 @11:43AM (#51373937)
    Hello, Maryland AG's Mother, and thank you for appearing in front of us today as an expert Mother. Your son has argued that everyone knows cell phones create, store, and broadcast location data all the time so no warrant is needed for tracking them. Did you know that your phone is reporting your location to the phone company 24 hours a day? Did you know your son wants to know where you go every hour of the day, and believes he has the right to do so without a warrant?
  • Sure everyone knows they generate location data.... but that location data is *NOT* automatically public information unless the public actually has a direct way to receive and analyze it. Obtaining it for another person typically requires the explicit cooperation of a third party. Therefore, it should require a warrant.
    • Sure everyone knows they generate location data.... but that location data is *NOT* automatically public information unless the public actually has a direct way to receive and analyze it. Obtaining it for another person typically requires the explicit cooperation of a third party. Therefore, it should require a warrant.

      Furthermore, phones don't always broadcast location information. I usually keep the GPS chip off on my phone to save power. Sure, my location can be generally determined from tower and IP information - depending on how I'm connected - but I'm not broadcasting that information.

  • "everyone who lives and breathes knows they're being tracked so it's legal. even if we keep it completely secret, hidden from the courts, and defendants so they can't defend themselves."

    fucking retarded chomos. williambinney.com [williambinney.com]

  • If the continuing argument from the government is going to be "if we can technically do it then we should be able to legally do it"... then the solution is to make it so that you can't technically do it.

    happy now?

    That's apparently where this has to go.

  • I know that multiple people in my life has seen me naked. Parents, girlfriends, etc. The fact that one or more other people have been given access to that information - my naked body - does not give the government the right to access to that information.

    Moron should be fired for knowing nothing about how the US constitution works, how warrants are supposed to work, etc.

  • Someone should host a publically accessable website that geolocates law enforcement officers in those cities to test their convictions on this issue.
  • How can this guy seriously make the argument that something should be legal simply because people knew it was happening (likely illegally) before hand. Taking this line of reasoning, it could be argued that being illegally searched without probable cause is now legal simply because people expect it to happen anyway (even if they don't agree or like it).

    While he's at it, why not apply this argument to every clause in the Bill of Rights and have the whole constitution repealed! Law enforcement have been 'gett

  • Let's just turn over all the cell towers to law enforcement if they don't need warrants to intercept cell communications. At least then we'll know for certain that they are spying on us everywhere, all the time.

  • by Anonymous Coward

    Some local lady investigated why her phone acted funny and the guys listening in were accidentally talking out through her call. She was quoted as asking the other person she meant to be on a call with if they could also hear the male voices talking. Then the phone clicked a bit and the voices were off. The article said she got a phone that is pretty good at detecting and she can see her 4g connection turn to 2g and gets a warning that her phone can no longer switch towers. The device takes your phone ov

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