Slashdot is powered by your submissions, so send in your scoop

 



Forgot your password?
typodupeerror
Privacy Cellphones Communications The Courts The Internet Your Rights Online

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."
This discussion has been archived. No new comments can be posted.

DC Court Rules Tracking Phones Without a Warrant Is Unconstitutional

Comments Filter:
  • by xxxJonBoyxxx ( 565205 ) on Thursday September 21, 2017 @06:32PM (#55241473)
    As usual, TFA is useless. Why didn't the cops get a warrant in this case?
    • by hey! ( 33014 ) on Thursday September 21, 2017 @07:08PM (#55241627) Homepage Journal

      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.

      • by Anonymous Coward

        " 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 ?

        • by hey! ( 33014 )

          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.

    • 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,

      • 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)

      by MrKaos ( 858439 ) on Thursday September 21, 2017 @11:21PM (#55242409) Journal

      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.

    • by stooo ( 2202012 )

      Phones = People
      DC Court Rules Tracking People Without a Warrant Is Unconstitutional

      You need a court for that in your country ?

  • 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."

    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

    • by HeckRuler ( 1369601 ) on Thursday September 21, 2017 @06:44PM (#55241525)

      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.

      • by mi ( 197448 )

        They're not a suspect. There's no warrant.

        Huh? The two aren't tied together.

        If they had cause to suspect someone, they could probably go get a warrant.

        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.

        Are you ok with the city cops keeping a database of everyone's [cellular phone -mi] location at all times?

        I certainly prefer not to think about it, but I don't see, how

        • 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.

          • by mi ( 197448 )

            Pervasive surveillance used to require a warrant. A stingray is pervasive surveillance.

            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.

            Police in public places limited to things they can see and hear

            Citations?

            • 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

              • 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.

            • by dissy ( 172727 )

              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

              • by mi ( 197448 )

                Using a stingray is akin to arresting

                No, it is not. Nobody was arrested or even talked to.

                Stingrays track every single last innocent and unsuspected citizen

                How is this different from police following every single and unsuspected citizen in an area? Or, indeed, video-recording everything with security-cameras?

                • by dissy ( 172727 )

                  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

                • 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."

          • 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

        • 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

      • I believe you definitely pointed out the crux of the issue. It isn't the fact that it can not be used in a court of law without a warrant, it is the fact they are using it all the time. IMO, this is pretty much akin to any other monitoring device implemented by the legal system AFTER a conviction.
    • by TWX ( 665546 )

      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

      • by AHuxley ( 892839 )
        Re carrier
        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
    • No, it's consistent with previous rulings regarding GPS trackers without a warrant, which was ruled unconstitutional. They can get a warrant fairly easily if they actually have suspicion and are not on a fishing expedition, in some jurisdictions it can be done over the phone via an on-call local magistrate or judge. Same for GPS trackers. It's not that terribly large of a limitation actually.
      • No, it's consistent with previous rulings regarding GPS trackers

        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:

        In United States v. Jones, we held that “the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search.’ ”. We stressed the importance of the fact th

        • the pocket of my pants where I keep the phone is private property, the data kept on the phone is private property, the computing environment on the phone used to access the data is private property.
          • by mi ( 197448 )
            Yep. And none of it was “physically occupied” by the government...
        • 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

    • by AHuxley ( 892839 )
      Expect a lot of good faith exception, exigent circumstances terms getting more use soon.
  • Great expectations (Score:5, Insightful)

    by Impy the Impiuos Imp ( 442658 ) on Thursday September 21, 2017 @06:52PM (#55241559) Journal

    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.

    • 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

      • Once law enforcement has a capability, never in a million years are you going to get them (or the courts for that matter) to restrict the use to the most serious crimes. Case in point, the PATRIOT Act. It was sold to us as a vital tool to fight terrorism, giving police these strong new powers to stop the next 9/11. Fastforward a couple years, and terrorism makes up a low single digit percent of PATRIOT Act usage, and it's around 80% of the time used for routine drug cases. And all these new laws designed to
  • by Anonymous Coward

    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

    • "Stingray" is not an adequate description of the technology in use, and to specifically talk about one brand's (is Stingray indeed a brand name?) family of tools would be to ignore other use of the underlying technological concepts, potential or real. Yes, this is about Stingrays, but it makes more sense to talk about "cell simulation technology" in legal proceedings. Think of it like this: if you were trying to ban tobacco, you wouldn't limit yourself to Marlboro reds, or even to pre-rolled cigarettes. At
  • Trump's Supreme Court will reverse this.

    • by Anonymous Coward

      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?

      • 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.

  • by MrKaos ( 858439 ) on Thursday September 21, 2017 @07:46PM (#55241743) Journal

    Actually, about fucking time.

    • by Eldaar ( 5056619 )
      Agreed! Glad to see there are still courts and judges that respect the Bill of Rights and the importance it plays in our legal system. The founders of this country knew that people with authority often abuse it, and wanted to be sure police have legitimate reasons to be tracking citizens.
  • They won't need a warrant.

    All they need to do is show the phone to the suspect and find incriminating evidence.

Good day to avoid cops. Crawl to work.

Working...