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Supreme Court Agrees To Decide Major Privacy Case On Cellphone Data ( 82

An anonymous reader shares a report: The U.S. Supreme Court on Monday agreed to hear a major case on privacy rights in the digital age that will determine whether police officers need warrants to access past cellphone location information kept by wireless carriers. The justices agreed to hear an appeal brought by a man who was arrested in 2011 as part of an investigation into a string of armed robberies at Radio Shack and T-Mobile stores in the Detroit area over the preceding months. Police helped establish that the man, Timothy Carpenter, was near the scene of the crimes by securing cell site location information from his cellphone carrier. At issue is whether failing to obtain a warrant violates a defendant's right to be free from unreasonable searches and seizures under the U.S. Constitution's Fourth Amendment. The information that law enforcement agencies can obtain from wireless carriers shows which local cellphone towers users connect to at the time they make calls. Police can use historical data to determine if a suspect was in the vicinity of a crime scene or real-time data to track a suspect.
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Supreme Court Agrees To Decide Major Privacy Case On Cellphone Data

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  • Forth Amendment doesn't apply to records held by a (non-lawyer) third party, does it?
    • by TWX ( 665546 ) on Monday June 05, 2017 @11:07AM (#54551469)

      It may depend on if they determine that the records are owned by the subscriber and only being warehoused by the carrier, or if they're owned by the carrier.

      This is also arguably new caselaw, in that this wanders into the same arena as when law enforcement plants GPS trackers on suspects' vehicles, which I believe was ruled as requiring a warrant. If we have a fundamental right to privacy from our government then it would follow that the government would need a demonstrable reason to track our movements or to look up any available movement history, and that such a look would need to be sufficiently narrow in-scope. Additionally this isn't a case where police start monitoring a subject and do so for a duration, it's going back through records. So it seems to have aspects of both, but also not be the same as either.

      If you look at the actual wording of the beginning of the Fourth Amendment to the Constitution it reads, "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[...]" The language, "persons, houses, papers, and effects," seems pretty broad, like the intention was to be as literally as broad as possible, especially with the inclusion of, "effects," as a catch-all. If the police themselves were making records as they observe a subject then that would be creating their own records, but they're accessing someone else's records instead of their own. Perhaps these records about the person, created without the person's understanding of the technology involved, would count as, "effects," even if they don't necessarily count as, "papers."

      • by Jason Levine ( 196982 ) on Monday June 05, 2017 @11:19AM (#54551543) Homepage

        My (admittedly non-lawyer) interpretation would be that "The right of the people to be secure in their persons... against unreasonable searches and seizures" means that a person should be free to move as they please without the government "searching and seizing" their locations. If the police want this data (and there can be very good reasons why they would need it), then the path is simple:

        1) Convince a judge that this is needed.
        2) Get said judge to issue a warrant.
        3) Use the warrant to get the location data.

        It's that simple. No Supreme Court case required and a proper balance struck between police ensuring safety and citizens' rights.

        • There was a court case about needing a warrant to hook up a GPS tracker to a car. I think their opinion set a good precedent.
          • by MobyDisk ( 75490 ) on Monday June 05, 2017 @11:34AM (#54551659) Homepage

            But that case was based on the fact that the police had to physically touch the car to install it. So the precedent is very narrow. If they could track the car without physically touching it, then they have a way around the limitation. Given the prevalence of license plate scanners, traffic cameras, cell towers, drones, and camera-laden aircraft, it seems like that case won't have teeth for very long.

            • by TWX ( 665546 ) on Monday June 05, 2017 @11:56AM (#54551805)

              That may be another area that will require the courts to make decisions in the future.

              In the past it has been perfectly legal for the police to follow a subject that is in-public throughout that person's movements, and the argument was that since anyone could observe the subject in-public, police were free to do so as well. Those kinds of observation required officers to do the observing though, present at the site, themselves.

              The use of the GPS tracker is employing a tool as a tracker without a person doing the observing. We already have precedent that while police are allowed to enter the curtilage of private property to knock on the door to speak with the occupants, they are not allowed to employ tools beyond their own natural senses to look for crimes while doing so. It would not be a stretch that some middle-ground in tracking a subject's movements would require officers to be personally observing a subject in-public in order to do so without a warrant, or if they are allowed to employ tools, they must be simple in nature and must be personally operated by the observing individual on-scene. That would probably preclude most forms of autonomous observation without a warrant.

              Don't forget with license-plate scanners, the license plate does not belong to the car owner, but belongs to the state. It may be a bit of a hollow argument, but perhaps the state has the right to look at their own property.

              • Besides plate scanners, lots of the North East use EZ-Pass for toll collection and also employ sensors scattered around to also collect the ID information. Theoretically it is used for traffic flow understanding, but that could certainly be "expanded" depending on case-law, and the EZ-Pass is an optional, leased piece of property.

                • by TWX ( 665546 )

                  Yep, and the argument can be made that the EZ-Pass subscriber could have paid for the trip across the toll gate in another way, like with currency, so the use of EZ-Pass is not mandatory, so it's an even greater argument as to the logs from EZ-Pass being usable by the government because unlike license plates, it's not compulsory.

                  • by Anonymous Coward

                    Except that more and more toll roads are removing the option to pay using anything except an electronic transponder.

                    Sometimes the slippery slope is real.

              • by MobyDisk ( 75490 )

                the license plate does not belong to the car owner, but belongs to the state. It may be a bit of a hollow argument,

                OMG, are you serious? That is pretty weak! If that is their basis, then someone could make a replica license plate that looks just like theirs, but isn't. Then could that person claim that they can't take the pictures?

                • by q4Fry ( 1322209 )

                  If that is their basis, then someone could make a replica license plate that looks just like theirs, but isn't. Then could that person claim that they can't take the pictures?

                  Perhaps they could, but if they replaced it on their vehicle, they'd also be stopped by a constable. This poor fellow would have to explain over their protestations that one may not drive with a replica licence plate and, for doing so, one is subject to at least a fine and perhaps a revocation of the original licence plate.

        • by TWX ( 665546 )

          I agree with you, especially in an era when it appears that it is not that difficult for the police or the district attorney to create a convincing argument as to why the warrant is necessary.

          What a court case may do though, is to establish the conditions in which warrants should be asked-for and the conditions for the judge to evaluate whether or not to grant, and even possibly conditions necessary to unmask who the subscriber for a given handset belongs to and if there are any other frequent contacts with

        • by perew ( 1664869 )
          One does wonder why the carrier didn't reply to the police by saying, "We have the data you want and we're making sure it's not being deleted. But, for all of our sakes, please go get a warrant. That way we're all assured that this is being handled in the proper way."
          • It's not the carrier's job to ensure the police are following the law. That's the police's job. And, when they don't do so, it's the court's job to stop it.

            • by lsllll ( 830002 )

              I was going to mod you down, and then decided I'd respond instead since I haven't modded this discussion yet.

              It's not the carrier's job to ensure the police are following the law.

              Are you demented? It is the carrier's job, as custodian of my data, to follow proper procedures of the law and require the police to produce a warrant for the said information. What's next? Police can get my call records without a warrant? Police can walk into a hospital and get my medical records without a warrant?

      • by Archangel Michael ( 180766 ) on Monday June 05, 2017 @11:22AM (#54551573) Journal

        I would suggest that the idea of "papers" is expanded to include all forms of "electronic records" owned or controlled by the Citizen. If My letter to my wife is on paper or electronic version thereof, the effect is the same. The media shouldn't matter.

        Cell Phones are "papers" in effect, even if they aren't made of literal paper.

        • by TWX ( 665546 )

          That would make sense to me, especially when popular understanding of data and partition structures is literally coached in the vernacular of "files" and "folders" these days. People already see this data in this light.

        • 'Citizen'? You mean, 'people' right?

          • American Subjects to be specific. 4th Amendment doesn't apply anywhere else. Though other places may have similar structure to their government laws.

            As a Libertarian, I would want my Federal Government to honor its highest laws universally, when dealing with anyone. However that is not currently the standard, and it bothers me greatly that we don't apply the stricter(limiting) standard to our government officials no matter where they operate in the world.

        • I would rather include protecting "location" data as being secure in your Person. They can physically follow you, or identify you off of cameras you have no control over. But your Phone that you purchase (or lease) should not be useable as a beacon to track your location without a warrant. The other data on your phone and other computing devices would fall under a modern interpretation of "papers".
          • by TWX ( 665546 )

            If I understand right, being secure in your person is referring to your body.

            I would rather this sort of thing, specifically data generated through the use of electronics, fall into, "effects" that might actually help protect the person's electronics more widely.

    • by Anonymous Coward

      Actually there is some doubt about it.

      An argument can be made that there is no such thing as a third party. Those records are made by the telephone company and they can claim it is proprietary information of THEIRS, so the government needs a warrant to get it, without the telephone company's permission.

      All it would take is a telephone company to put warrant required in some kind of 'premium' phone plan, and suddenly it will be offered in all family plans.

      But even beside that, the third party rule is kind o

      • I just assumed this was already the correct way to view the situation. Like T-Mobile could as a general principle require a warrant for turning over any data, but decide to freely handover any relevant data to law enforcement after a terrorist attack or something (i.e. equivalent to the decisions a person might make).
  • In a way, I'm somewhat (day 10%) okay with this, but ONLY if it's additional information to corroborate what is already known. Like "We have security cameras that captured the suspect's image, we have fingerprints at the scene of the crime, and we have cellphone data to corroborate." But in that case, if it's corroborating, then they would have time to get warrants. But at the same time, I say "Oh hells no," if that's where you're going first because without other data, it's all circumstantial. Okay, so
  • depending upon the definition of past.
  • by gurps_npc ( 621217 ) on Monday June 05, 2017 @11:04AM (#54551455) Homepage

    1) Should police obtain this kind of data. The answer to that is YES, they should.

    2) Separate issue is should they get a warrant first. That is also a yes.

    Basically what it comes down to is this. Anything a normal citizen could get arrested for should be require a warrant for the police to do.

    The reason for this simple, police are human beings and according to most surveys are 96% honest. But normal citizens are 95% honest. That means police are more honest than other people, but only by a little bit. So we need to limit their ability to abuse their authority, just as we limit regular citizens.

    In other words, if you can't trust your neighbor to have the right to do something, then neither should you trust the police to do it.

    • If I make a call to my carrier's local office and ask to have a look at their data, I won't be arrested. They won't likely give me access, but it's not illegal to ask. Similarly, a police officer can call and make the same request, and the carrier can choose to grant them access. Per your test, there's no warrant required.

      The key assumption I'm making though is that I'm asking for "their" data. To my knowledge, there is no precedent for precisely who owns personal location data that a third-party generated

      • by mark-t ( 151149 )
        Does your doctor own your medical info, or do you? The answer to this question leads you to the answer to yours.
        • Does your doctor own your medical info, or do you? The answer to this question leads you to the answer to yours.

          No it doesn't, because there are specific laws that apply to medical records. If medical records were the same as any other records, then those laws would be meaningless.

          • by mark-t ( 151149 )
            I didn't say that medical records were the same as other records.... I only said that you could reasonably infer which party owns your records by looking at who owns records that you already can reasonably expect to be confidential.
        • by Sarten-X ( 1102295 ) on Monday June 05, 2017 @12:16PM (#54551929) Homepage

          Funny you should ask, since I used to work in medical data.

          Your doctor owns the data, but it's protected by explicit PHI laws, most notably HIPAA. Under HIPAA, your doctor's practice has significant freedom in how they can use or release that data to HIPAA-compliant partners. Your acknowledgement of that practice is one of the many forms they have you fill out prior to receiving treatment.

      • If you call up and ask for a specific person's location, they won't just refuse, they will contact the police and you should expect a visit. And you damn well better get a lawyer to explain what you are doing.

        Also, the police don't just call and ask, they demand. That's a big difference.

        • Precisely what law do I break by asking? The police might come by and ask what I'm doing, especially if the carrier office suspects illegal activity like stalking, but that's not probably cause for any further action.

          Also, the police are only asking. Without a warrant or court-approved subpoena, there's no consequence for denying their request.

          Despite the claims of Slashdotters, America still follows the rule of law. Without following a predefined procedure, there's no requirement for a particular behavior

        • Sometimes police demand. Sometimes they ask. Sometimes police ask if they can search you, or your property, and you can often decline that search if they do not have a warrant. In fact I believe they are required by law to *ask* rather than demand (even if they might do so in a demanding tone). Not ((asking and receiving permission) or (getting a warrant)) for a search might lead to a situation where they are unable to get a conviction that hinged upon evidence gathered during that search.
      • If I make a call to my carrier's local office and ask to have a look at their data, I won't be arrested.

        This is a strawman argument. No one is saying that making the request is illegal. I do believe, however that my carrier will not hand out that data to any requester. Go try it some time. For extra lulz, ask for the data of your Senator or some other politician.

        Now, if they won't hand out that data to a random person off the street, it isn't public data. Shouldn't the police be required to get a warrant to

    • by Anonymous Coward

      "1) Should police obtain this kind of data. The answer to that is YES, they should."

      Incorrect. Police should be barred from this kind of data, warrant or not. The relationship you have with your phone is not unlike that which you have with your lawyer, doctor, or spouse. A 24-hour record of your whereabouts is one of those you wouldn't even necessarily trust disclosing in a privileged relationship - that's how sensitive it is.

      Clearly there needs to be legal privilege established for personal electronic devi

  • by HalAtWork ( 926717 ) on Monday June 05, 2017 @11:33AM (#54551651)

    Why the fuck is the past location data even kept? That should be a focus.

    • Re:Wait what? (Score:5, Informative)

      by ShanghaiBill ( 739463 ) on Monday June 05, 2017 @12:10PM (#54551883)

      Why the fuck is the past location data even kept?

      Marketing. If the data shows you go into a barbershop every other Tuesday, then Monday evening would be a great time to popup a coupon for a competing barber.

      If you want the convenience of popup ads on your mobile device, then you have to accept police surveillance along with it. I think we can all agree that the tradeoff is worth it.


      • LOL. I can't believe this was moderated Informative rather than Funny. Reading the last paragraph, I'm pretty sure the poster was going for Funny.
    • It's my understanding that the only location data is that the person used a particular cell tower. It isn't the GPS location of the phone. Each cell tower stores who accessed it, and possibly for a minimum of some number of years. If this information isn't stored, the counter argument will be that the consumer will say they didn't make a particular call. This is proof they did. I honestly don't see a way around storing this information unless people are given the ability to "opt-out" coupled with the u
      • That point might become moot as voice calls become less of a factor in billing. Many plans come with unlimited voice, texting and data. Even plans that don't come with unlimited data, the utility of records which track bytes transferred as a means of corroborating billing accuracy are limited.

        I think they could reasonably throw all this data away, if they really wanted to protect their customers data even from searches that had a warrant. But I suspect that even carriers with a desire to protect data are

  • Bad Feeling (Score:4, Interesting)

    by Khyber ( 864651 ) <> on Monday June 05, 2017 @11:57AM (#54551815) Homepage Journal

    I have the feeling that the USSC will 'narrowly' rule that since the private company gave up the data voluntarily to the police without coercion that no rights were violated. I doubt there's anything in the cellular contract that actually protects the customer, knowing how businesses run these past several decades.

  • by shellster_dude ( 1261444 ) on Monday June 05, 2017 @11:58AM (#54551821)
    For all the Trump hate in this thread, Gorsuch has historically been pretty skeptical of 4th Amendment overreach (way more than Scalia ever was). For the first time in a long time, there is actually a pretty good chance that this could swing towards more 4th Amendment protection.
    • by schwit1 ( 797399 )
      Scalia was a staunch defender of the 4th amendment. []

    • I haven't seen much Trump hate in this thread aside from the very top. My general impression of the past supreme court justices has been that even when they are political ideologues (i.e. they always vote the conservative or liberal position), they are at least consistent in their ideology. They don't tend to change their ideology to help particular parties or people. If a conservative position happens to help the progressive side of a case or vice versa then so be it.

  • by WillAffleckUW ( 858324 ) on Monday June 05, 2017 @12:48PM (#54552081) Homepage Journal

    Both in Canada and the US, the Constitutions preclude these unwarranted searches and seizures of people who just happen to be in the vicinity (many many miles) of a cell tower, or a fake cell tower in this case.

    And the lies that they exclude your information if you're not the target have been proven over and over again.

  • This time it's snitching your location to authorities. Last time it was stealing your money and distracting your driving. Somehow the math still works for 99% of us. Somehow worth it.

  • I'm not overly optimist on this one. I don't see a lot a wins for privacy anymore.

Machines certainly can solve problems, store information, correlate, and play games -- but not with pleasure. -- Leo Rosten