DC Court Rules Tracking Phones Without a Warrant Is Unconstitutional (cbsnews.com) 84
An anonymous reader writes: Law enforcement use of one tracking tool, the cell-site simulator, to track a suspect's phone without a warrant violates the Constitution, the D.C. Court of Appeals said Thursday in a landmark ruling for privacy and Fourth Amendment rights as they pertain to policing tactics. The ruling could have broad implications for law enforcement's use of cell-site simulators, which local police and federal agencies can use to mimic a cell phone tower to the phone connect to the device instead of its regular network. In a decision that reversed the decision of the Superior Court of the District of Columbia and overturned the conviction of a robbery and sexual assault suspect, the D.C. Court of Appeals determined the use of the cell-site simulator "to locate a person through his or her cellphone invades the person's actual, legitimate and reasonable expectation of privacy in his or her location information and is a search."
Why no warrant? (Score:3)
Because US law is archaic. (Score:5, Informative)
Presumably the cops thought they didn't need a warrant.
A lot of the legal framework in the US around these matters dates back to the time of the Bill of Rights. In general courts have viewed police suspicion as something that doesn't violate your rights as a citizen. For example if a plainclothes cop decides you look suspicious and tails you for awhile, that's perfectly OK. He doesn't need a warrant.
The problem with technology is that we can now automate that process, and that often changes its character. A cop trailing you to see where you goes is a self-limiting process. It'd be too expensive and time consuming to do to everyone. But since everyone carries a phone now, the police actually can follow them everywhere, all the time, and it would cost them practically nothing. That's way more intrusive, even though on a case by case basis you're doing the exact same thing: keeping tabs on where someone goes.
And here's another wrinkle. Since you divulge your position to the phone company, under US common law it's not your private information. If the phone company decides to relay your position to the cops, it's completely kosher unless that disclosure is forbidden by statute or the court gets creative.
What technology allows the police to do obviously violates the spirit of the Constitution; so what the court has done is what courts sometimes done in similar cases (like contraception): try to infer underlying principles from the Bill of Rights and extrapolate them to the current situation under the 9th Amendment.
Re:Because US law is archaic. (Score:4, Informative)
OK, that's a good starting point.
But what if the common man in the street could, in principle, buy information on someone else? Or could in principle assemble that information if he had sufficient time and resources?
You see, a government that is limited to what the common man in the street can do can be far more intrusive because they have more resources -- ditto for corporations. You have to limit government more than you limit the common man in the street. And you probably have to limit what very rich men in the street can do too.
Re: Because US law is archaic. (Score:1)
" Since you divulge your position to the phone company, under US common law it's not your private information. "
Would be a big difference if the end user actually had the ability to turn this " feature " off.
Imagine if everything you bought came with a tracking feature you couldn't disable. Would that concern you or not ?
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Kind of hard when the phone company needs to which cell tower you are communicating with. And depending on your network, they may have radiolocation capabilities in order to provide E911 without using the phone's GPS.
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Yes, I'm aware of this, but it's not clear to me whether the GPS coordinates are transmitted continually to the tower or only during a 9-1-1 call. It could be either, and to know for sure you'd have to look at the technical documentation. However even without GPS the companies have the capability of locating a handset by radiolocation techniques.
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since phones already special case 911/999 calls such that they bypass SIM locks and handset locks, to the point of not even requiring a SIM in the phone to be connected it is safe to assume that even if "user disabled" the phone can turn on location for E911.
Of course as you noted, a read of the documentation is in order to know if this is or isn't the case.
We need our phones to stop being phones (Score:2)
This is the next problem. This E911 law needs to be more easily and automatically circumvented by default, if we can't get it repealed. And we can't get it repealed. I think that law is a bad idea, and yet there are some pretty obvious and irrefutable arguments in favor of it. It's ambiguously bad, and that's enough to keep it forever.
Therefore, we need our pho
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Google tried, it bombed.
The issue with your plan is fairly straightforward:
The plan increases ecosystem complexity, which increases price.
Since phones are a commodity item they are largely selected by price (look at the new iPhone 'meh' response for what happens if price is too high).
I love the idea in principal, but practice dictates that it's just not viable.
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This is the next problem. This E911 law needs to be more easily and automatically circumvented by default, if we can't get it repealed.
No.
First, if you need to call 911 for help, you want your phone to be able to do it even if you are in a place where your carrier has no service.
Second, if you don't want public safety to know where you are so they can come help you, don't call them. Or don't use the 911 number if you do. Use the regular numbers. If you are someone who doesn't want cops to know where you are but want them to come help, then I don't know how they are going to be able to help. Why bother calling in the first place?
One of
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Those are all good reasons for the capability to be there, but not for it being mandatory and incapable of being disabled.
Uhhh, yeah. You're riding with your friend in his car. There's an accident where he's incapacitated and you're bleeding out. You grab his phone and dial 911. You aren't sure where you are, and he has disabled the magic E911 location system. How wonderful for you.
You really can't think of a scenario where someone might want to call 911, but not themselves be tracked?
Of course I can. That's why I told you how to get ahold of the non-911 numbers for emergency services, and said that you should use one of those if you need help from 911 but don't want them to know where you are automatically. Sheesh, read the whol
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As usual, TFA is useless. Why didn't the cops get a warrant in this case?
I don't have enough knowledge about this particular case to speculate, but there are three typical reasons for conducting a search of some kind without a warrant: 1. Courts don't require it under a given set of circumstances. 2. The cops were too lazy or in too much of a hurry to bother. 3. They simply thought they didn't need one because they are incompetent.
This actually sounds like a combination of the three, but more #1 than #3; other courts have previously allowed lots of warrantless phone tracking,
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I believe that you are *close*
The case for #1 is more along the lines of: any time the defence has brought it up the cops have withdrawn their case rather than risk this precedent being set.
That has led to #3 happening because enough cases were won without the question of the stingray data coming up that they assumed it was A-Ok to use.
Re:Why no warrant? (Score:4, Interesting)
As usual, TFA is useless. Why didn't the cops get a warrant in this case?
Specifically, because this applies not just to the US, but the UK, Canada, Australia and New Zealand, Telecommunication intercepts.
First, politicians can pass laws that are unconstitutional, however they are bits of paper because they violate the constitution which are the founding principles of a nation. Effectively, they aren't laws at all because they are unconstitutional.
In this context, after 9/11, a series of anti terrorism laws were passed in these countries that violated the constitution. In the US Bush by-passed the Attorney General by using his personal attorney and once the political elite of the Bush cabal saw they could pass laws this way without anybody objecting they went crazy establishing the surveillance state we are now subjected to. The reason I know this is because I read and analyzed hundreds of pages of these "laws" and wrote submissions about them.
The political elite came after Telecommunications and the freedom of speech and association that came with it around 2004. I also analyzed these laws which read like a fundamental attack on the constitutional foundations of all western democracies, or what was left of them. Of course the trick for them is not to act on the power in a big an obvious way but to inflict a death by a thousand paper cuts.
So thirteen years later, laws we saw framed under the guise of being used only for the intelligence community to track terrorists is now being used against the populous to track common criminals without using due process which people may not object to, because it's a criminal however just because the police are tracking a criminal doesn't mean they are allowed to commit a criminal act.
For further context, traditionally telecommunication intercepts were treated more seriously than search warrants by judges until anti-terrorism laws made them a moot point.
This is how politician by-pass the will of the people and erode the freedom that a nation is built on with attempt to neuter the constitutional values that are inconvenient and antagonistic to their power over the population.
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Phones = People
DC Court Rules Tracking People Without a Warrant Is Unconstitutional
You need a court for that in your country ?
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No, the phone absolutely does not work this way. The location is implied by the tower. If it worked the way you say, we wouldn't have been able to use cell phones prior to GPS tech on smartphones since the phone wouldn't know where it was. How did this get modded up? ROFL. Mod moderator down.
Re: So... no more cell phones? (Score:1)
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Sure, for a cellular phone to work the phone must announce it's location to the carrier. The issue at hand though is that the phone does not have to tell the government where it is located to work. The carrier should not have to tell the government where a phone (and therefore the person carrying it) is located without a warrant. Also, the government cannot set up a fake cell site to scoop up the locations of people without a warrant.
I'm trying to think of how these fake cell sites could be used any more
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>Sure, for a cellular phone to work the phone must announce it's location to the carrier.
No.
The cell tower announces its location to the phone.
The phone announces its desire to connect to the tower.
If there's an ongoing session, a number of towers may already be informed of your phone and your phone has a session reference it can use so the new tower can grab the session from the previous tower as handover occurs.
The business of a tower inferring your phone's location came later and was all to do with se
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No. The cell tower announces its location to the phone.
No. The cell tower announces its existence to the phone. The phone doesn't care where the tower is.
The phone announces its desire to connect to the tower.
Yes. At that point, the cell tower becomes interested in where the phone is so it can optimize service. I.e., use phase array antenna systems to direct the signal toward the phone.
The cell tower uses the same phased array antennas to figure out what direction the phone is, and the received signal strength to estimate distance. It can also use time-of-flight or response time of the phone for distance. Distance
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Someone claimed you could hear an Automatic Teller Machine printing money before it was dispensed. An early troll.
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Needing the know the location is to be able to route network initiated paging to the phone.
The phone does not need to know the tower location, nor does the tower need to know the phone location for this.
Otherwise, which tower would you let broadcast it.
Are you serious? The tower to which the phone is connected. You do realize, I hope, that phones make a connection to the cell site even when you aren't actively making a call. They register with a site, which is how the phone knows who the carrier is, what services are available, and can get SMS/data.
Phased array aiming is usually done by inverting the channel, the position is never directly computed.
It may never be reported in human coordinates. I don't know, it doesn't matter. The location is,
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That worked well for law enforcement for a while. Most people did not notice the unexpected extra service quality they got with no carrier investment.
Over time app maps got created of cell networks that would show any strange new service that was not part of ongoing carrier upgrades.
Apps started mapping the powerful law enforcement
Not even to locate?.. (Score:1)
That's seems like an overreach...
It would make sense, that police can not use such methods to intercept the target's communications. But to make even locating the suspect illegal this way is an overreach. An active cell-phone is no different in this regard from a
Re:Not even to locate?.. (Score:5, Insightful)
They're not a suspect. There's no warrant. If they had cause to suspect someone, they could probably go get a warrant.
Assume that if the cops or feds don't need a warrant, they're doing it all the time to everyone and can use that against you whenever they see fit. Are you ok with the city cops keeping a database of everyone's location at all times?
If they do need a warrant, assume the cops and feds are doing it whenever they can to everyone... but can't use that in court so they find something else to nail you on. See: Parallel Construction.
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Huh? The two aren't tied together.
A warrant requires probable cause — a fairly high standard to meet. A suspicion does not — and using a lower standard [washingtonpost.com] may be justified. Or no standard at all, as is the case in TFA.
I certainly prefer not to think about it, but I don't see, how
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Pervasive surveillance used to require a warrant. A stingray is pervasive surveillance.
Police in public places limited to things they can see and hear, even with amplified means, does not require a warrant.
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I don't know, how you define the term "pervasive surveillance". But I do know, that use of stingray to target a suspect's phone is no different from following a suspect on the street. And that does not require a warrant [findlaw.com] — and never did.
Citations?
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I don't know, how you define the term "pervasive surveillance". But I do know, that use of stingray to target a suspect's phone is no different from following a suspect on the street. And that does not require a warrant [findlaw.com] — and never did.
This court disagrees, and so do I. Using stingrays should absolutely require a warrant, and is far, far different from walking down the street behind a suspect. This decision by the D.C. appeals court does indeed reverse past precedent set by other courts that have allowed unreasonable encroachment on our right to privacy, and this is a good day for anyone who values privacy and limiting the ever-watchful eye of our government. They aren't saying you can't use stingrays, i don't think, but they are implying
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that you need to get a warrant, which is not that difficult or prohibitively time consuming.
For individual suspects. Yes. That's the point.
It's supposed to be [google.com] difficult and prohibitively time consuming to go get a warrant for everyone.
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I don't know, how you define the term "pervasive surveillance". But I do know, that use of stingray to target a suspect's phone is no different from following a suspect on the street.
It is very different, so much so it's not even close enough to resemble the same thing.
This is like the police knowing for a fact a single person committed a crime (one human body on camera, covered head to toe in clothes) and they suspect that single person is your neighbor.
Using a stingray is akin to arresting your neighbor, you, and every other person that lives on your street and holding you in jail for days, simply because it takes that long to question your neighbor.
Stingrays do not and can not physic
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No, it is not. Nobody was arrested or even talked to.
How is this different from police following every single and unsuspected citizen in an area? Or, indeed, video-recording everything with security-cameras?
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No, it is not. Nobody was arrested or even talked to.
Re-read what I said then and try to comprehend analogy.
Because you are incorrect, my example explicitly involved one person being arrested.
Here was my example:
arresting your neighbor, you, and every other person that lives on your street and holding you in jail for days, simply because it takes that long to question your neighbor.
The very first three words involve an arrest in that example. So yes, in my example, someone was arrested and even talked to (that is what "question your neighbor" means, talking
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That's right, only respond to the one hyperbole in a thread full of valid criticism.
With selective cherry-picking EVEN YOU can stroke that ego. Bravo, you sure showed us what for.
How is this different from police following every single and unsuspected citizen in an area?
As stated:
"Wrong, stingrays follow you into your house too. And everywhere else."
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Police in public places limited to things they can see and hear, even with amplified means, does not require a warrant.
reasonable expectation of privacy (as deemed by a judge if push comes to shove). If you're in public, you don't have that. If you're in your own yard behind your own fence with no-one in sight, or in your own closed house with no open widows, it doesn't matter if the cop is in a "public place" and uses a spy satellite or a device that tracks you through a wall [extremetech.com]. That's invading your privacy. And if they don't need a warrant to violate that privacy, you can assume that they'll have continuous surveilla
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Heeeeey, you're right [wikipedia.org], the two aren't the same.
and the suspicion must be associated with the specific individual.[3]
So, if stingray were only allowed only when they could prove probable suspicion, then that'd do a lot to ease my qualm. But, as you noted, they didn't even need that. Maybe a later case will refine it to need probable suspicion rather than probable cause, maybe it won't. Either way, this is still a good change.
I certainly prefer not to think about it,
The why are you even commenting here?
but I don't see, how it is different from officers with phenomenal visual memory patrolling the streets — and sharing their observations with each other in the evening.
There are some real-world limitations in the fact that they can't employ a 1:1 citizen to police officer ratio to
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It's not even a honeypot. A honeypot requires intentional penetration of a system one knowingly is not welcome into.
This is arguably jamming and is an illegal use of spectrum that the device owner is not entitled to use.
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It's not even a honeypot. A honeypot requires intentional penetration of a system one knowingly is not welcome into.
This is arguably jamming and is an illegal use of spectrum that the device owner is not entitled to use.
No, while arguable, it is not reasonable to argue that this equates more closely to jamming than a honeypot. With new technology and new ways to exploit the flaws of old technology, it takes time for courts to agree on what is permissible and, as such, we may see conflicting decisions, like this one. This is where jurists need to be educated on the technical details and need to consider the broad intent of other laws. That's where interpretation of the constitution comes into play, since times change and ou
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An active cell-phone is no different in this regard from a person shouting, for example.
Sure it is. An active cell phone, idly waiting for an incoming call or to place one, is not detectable by human ears.
There's a legal concept calleed Plain View Doctrine [wikipedia.org]. Previously this concept has been applied to curtilage, aka the private property surrounding a house that police may have to tread-upon in order to knock at the door. Officers are allowed to take actions if they, with their natural human senses, detect a crime, but they're not allowed to use tools and if they have a clear path to the door
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A lot of the trusted telco staff with access to law enforcement request logs might not even be in the USA.
Such workers are open to their own faith, cults, other questions of their own nations national security or suggestions by outside groups.
Working with a telco that works in the USA but could be a security risk is not an option for US law enforcement.
US law enforcement will also not risk access by US court workers as court papers and warrants take time to get approved.
More secure to just ha
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GPS-trackers are different (Not even to locate?..) (Score:2)
USSC did conclude, that the use of GPS-trackers requires a warrant [theatlantic.com] (see, this is how you cite things.)
But that — unanimous — decision [supremecourt.gov] explicitly said:
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Further down though, there is the clarification that the search has to be "reasonable" which the NC Supreme Court did not address. Hence they vacated the judgement back to the lower court to address the issue as to whether attaching a GPS tracker for LIFE, not just some arbitrary time frame in this instance, is to be considered reasonable.
I could see this decision to be reversed if the NC court system demonstrates that it is reasonable as this plaintiff was a repeat-offender for the same crime, so this act
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Great expectations (Score:5, Insightful)
As your "papers", safe and secure inside your house, move online, you do indeed maintain the expectation of privacy you did in your home. And in any case, your papers are separate from your home in the expectation of privacy.
The Founding Fathers couldn't have foreseen computers tracking everybody in a dozen different ways, from cell phones to license plate recognition to face recognition to cameras on every corner, all being fed into a machine panopticon for the government to watch you. The days when "well, you have no expectation of privacy" in data handed to a corporation need to come to an end.
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As your "papers", safe and secure inside your house, move online, you do indeed maintain the expectation of privacy you did in your home. And in any case, your papers are separate from your home in the expectation of privacy.
The Founding Fathers couldn't have foreseen computers tracking everybody in a dozen different ways, from cell phones to license plate recognition to face recognition to cameras on every corner, all being fed into a machine panopticon for the government to watch you. The days when "well, you have no expectation of privacy" in data handed to a corporation need to come to an end.
Holy cow, somebody gets it! Yes, I hate to see suspects that are probably guilty get off (potentially) on what some see as technicalities, or to make the job of law enforcement agencies more difficult, but that doesn't mean we should launch ourselves headlong down a slippery slope. Interpreting the constitution to determine how its protection apply to new technological realms can and should be a contentious process, since we should never assume that we can predict or understand everything that will happen i
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They Are Called Stingrays (Score:1)
Did some rule go into effect that these cell site simulators cannot be called Stingrays in public? Because there have been plenty of topics here before about Stingrays and this is the first time at all that 'Stingray' isn't used at least once in the main topic to refer to them.
I know that the company that makes Stingrays wants NO public discussion of them. Police departmens have even withdrawn cases when the discovery process would have forced public discussion of Stingrays.
It's actually time for a teardown
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Don't worry, it will soon be fixed. (Score:1)
Trump's Supreme Court will reverse this.
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Not likely. There would be little support for this except for Alito and Thomas (who were nominated long before Trump).
Gorsuch is unlikely to support unwarranted searches given his record. You apparently didn't spend time reviewing his opinions.
Do you spend much time thinking about these things, or do you just ejaculate on this forum randomly?
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Not likely. There would be little support for this except for Alito and Thomas (who were nominated long before Trump).
Gorsuch is unlikely to support unwarranted searches given his record. You apparently didn't spend time reviewing his opinions.
Do you spend much time thinking about these things, or do you just ejaculate on this forum randomly?
I don't have nearly as much faith in Gorsuch to stand up to the conservative Right. As accomplished and consistent as he is, he seems to me to be less concerned with the underlying intent of laws on the books (including the Constitution) than his own misguided ideals. Frankly, he is a sexist, not a defender of the rights of all people, so I find it hard if not stupid to trust him.
About time (Score:3)
Actually, about fucking time.
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New iPhone (Score:1)
They won't need a warrant.
All they need to do is show the phone to the suspect and find incriminating evidence.