Forgot your password?
typodupeerror
Cellphones Privacy

Fifth Circuit Upholds Warrantless Cellphone Location Tracking 149

Posted by Unknown Lamer
from the cops-concerned-you-never-leave-home dept.
First time accepted submitter mendax writes "The New York Times is reporting, 'In a significant victory for law enforcement, a federal appeals court on Tuesday said that government authorities could extract historical location data directly from telecommunications carriers without a search warrant. The closely watched case, in the United States Court of Appeals for the Fifth Circuit, is the first ruling (PDF) that squarely addresses the constitutionality of warrantless searches of historical location data stored by cellphone service providers. Ruling 2 to 1, the court said a warrantless search was 'not per se unconstitutional' because location data was 'clearly a business record' and therefore not protected by the Fourth Amendment.'' The article pointed out that this went squarely against a New Jersey Supreme Court opinion rendered earlier this month but noted that the state court's ruling was based upon the text of the state's constitution, not that of the federal constitution."
This discussion has been archived. No new comments can be posted.

Fifth Circuit Upholds Warrantless Cellphone Location Tracking

Comments Filter:
  • by Qzukk (229616) on Wednesday July 31, 2013 @09:15AM (#44434823) Journal

    the court said a warrantless search was 'not per se unconstitutional' because location data was 'clearly a business record'

    Not a person when the federal government feels like it.

    • by blcamp (211756) on Wednesday July 31, 2013 @09:22AM (#44434907) Homepage

      This has nothing to do with the concept of "corporate personhood", whether you agree with it or not.

      This is a 4th Amendment issue. Searches and seizures of anything are protected for personal effects and papers. Electronic records are arguably that, but this court did not agree. It needs to be settled by SCOTUS.

      • Re: (Score:2, Insightful)

        by Anonymous Coward

        RIght, but if corporations are people, then their business records are clearly "personal effects and papers," no?

        • by jittles (1613415)

          RIght, but if corporations are people, then their business records are clearly "personal effects and papers," no?

          IANAL but that's exactly what I was thinking. You can't have your cake and eat it, too. So I guess someone in that jurisdiction needs to start suing their mobile provider to get them to delete all this location data once their bill has been paid. After all, they need the location data for billing purposes. Once the bill has been settled, they no longer need those records, only the settled invoice itself. And since I prepay, have unlimited everything, and have no roaming capabilities, there is no need to

          • Re:LOL Corporations! (Score:5, Interesting)

            by pixelpusher220 (529617) on Wednesday July 31, 2013 @09:45AM (#44435213)
            While the ruling is troubling on a number of levels the concept itself is fine.

            A 'business record' whether held by an individual or a corporation (person or otherwise) is a '3rd party' record and as such isn't protected by YOUR 4th Amendment rights. It would be no different if you paid your neighbor to record your movements and they asked them for your data.

            That said, the troubling aspects are we've made the jump from business records (how the business runs its operations) to user generated records housed and recorded by the business. The law makes no distinction, but the latter has massive privacy implications.

            I suppose if there were truly a free market (I hate that word btw) we'd have entries into the mobile wireless business doing what VPNs have for a while. I.e. no logging 'at all'.

            If the gov't in any way compels a business to keep records (and there lots of valid reasons for this) then those records are not considered 'business records' and need applicable warrants, etc.
            • A 'business record' whether held by an individual or a corporation (person or otherwise) is a '3rd party' record and as such isn't protected by YOUR 4th Amendment rights. It would be no different if you paid your neighbor to record your movements and they asked them for your data.

              Except that makes no sense (not surprisingly). Again, the text of the 4th Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be vi

              • Except for one problem. How do you classify data created and stored by Verizon as 'your' papers?

                The Constitution is vague on purpose...it's a feature not a bug.
            • "While the ruling is troubling on a number of levels the concept itself is fine. "

              There is another aspect to it that is being ignored here, and by the court as well.

              Other courts (I don't have a specific citation at hand, but it's been in the news) have ruled that while collecting specific data may not be a search, aggregating data over time can constitute surveillance or a search subject to 4th Amendment protection.

              I think it is pretty clear that cell phone location data is aggregated over time, and can reveal things about one's life that even a direct search (or police "tail") mig

              • I should have adeed: this court seems to have been paying attention to the letter of the law, while ignoring the whole reason the 4th Amendment exists.
            • by enjerth (892959)

              Because your personal data (the information which may indicate the position of your PERSON at a particular time and place) is constitutionally unprotected when it's possessed by a non-person entity? It's suddenly impersonal data?

              My right to be secure in my person (which extends to every time and place of my being, past, present and future) and effects is not violated by means of wresting that information unconstitutionally from a business? How is that not two offenses against the law?

              If the information soug

          • After all, they need the location data for billing purposes.

            Many people prepay for their minutes. For those customers there is no business reason for the telco to be collecting this information.

          • "After all, they need the location data for billing purposes."

            I would argue over whether they even need this much... to a degree anyway.

            On a typical plan, all they need to know is: "Is it 'native', or roaming?" and "Is it long distance, or local?"

            Because most plans only distinguish between home area and roaming, and long distance or local. And some unlimited plans do not even do that. Further, most cell plans don't even distinguish between local and long distance anymore, as long as it is within the U.S.

            So the location data in most cases can be broadened to s

        • RIght, but if corporations are people, then their business records are clearly "personal effects and papers," no?

          The amendment doesn't work if the "person" willingly hands their data over.

      • Please no. I know how they'll vote and it will create an absolute prescedent.

      • by Greyfox (87712) on Wednesday July 31, 2013 @09:50AM (#44435279) Homepage Journal
        It NEEDS to be EXPLICITLY settled by Congress. With clear language the courts can't ignore. Congress as a whole only understands one thing and that's the risk to their jobs.So until they start losing them over stuff like this, nothing much will get done. Until then if you don't like being tracked every waking moment, you'll have to not carry a cellphone or leave the battery out of it unless you need to make a call.
        • That will NEVER happen any time soon since as soon as the next terrorism incident happens, anyone who any way voted against any surveillance program will be hoisted up on a pike in the next election.

          • by Nerdfest (867930)

            The surveillance is one thing, doing without any oversight is another. It needs to done with a warrant.

    • Re: (Score:2, Interesting)

      by camperdave (969942)
      By extension, the records of a Private Investigator following someone are clearly a business record as well. So the cops can just hire PIs to follow suspects around, record their conversations, etc. without search warrants. Sigh! Why bother with a constitution at all?
      • by rickb928 (945187)

        But that's the crux of this. The police don't really have to 'pay for' all this location data. It;'s already collected, and the incremental cost is negligible.

        So they ask for it ONLY because it exists, and is EASY to get.

        One solution to this may be to make it cost-prohibitive for government to retrieve this data. Maybe set fairly low pricing on a limited number of retrievals, and then crank up the fees to both reflect the true cost of staffing the function, and most important, compensate ME for taking MY

  • and the US courts drop another Brooklyn Third

  • Fourth Amendment (Score:5, Insightful)

    by blcamp (211756) on Wednesday July 31, 2013 @09:19AM (#44434875) Homepage

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

    - Fourth Amendment to the US Constitution

    What? Emails, text messages and other electronic communications are not "papers", you say? Well, "electronic signatures" are taken as just as legal and binding as if it were an actual signature in ink on a piece of paper.

    This needs to be taken to SCOTUS, extra pronto.

    • Re:Fourth Amendment (Score:4, Informative)

      by EmagGeek (574360) <<gterich> <at> <aol.com>> on Wednesday July 31, 2013 @09:23AM (#44434919) Journal

      You need to read the Commerce Clause and supporting case law, which says that anything having an effect on Interstate Commerce is a business record and not a "Paper" or personal effect.

      Bank Statements, emails, and so on, are all fair game.

      • So is anything that has crossed state lines. Don't live in a state with paper production? Well, there goes the rest of your papers too.
      • Re: (Score:2, Insightful)

        by spire3661 (1038968)
        Yes, but the commerce clause is utter bullshit as interpreted. WHile your argument may be legal, its still wrong and needs to be changed.
        • I agree that it is utter bullshit as interpreted, but the question is not whether it needs to be changed but how we make that change become reality. We can argue shoulds and musts all day long, but until it comes to pass, it is but words.

          • It starts with people recognizing and discussing how wrong it is. It has taken me years to feel confident enough to say the commerce clause is bullshit.
      • You need to read the Commerce Clause and supporting case law,

        Just remember, abuse of the Commerce Clause really got going when FDR found that his New Deal was mostly unconstitutional, and he had to find some new way to justify it.

        Which "new way" involved threatening to pack the Supreme Court till they gave in and let him do what he wanted, then using the Commerce Clause to justify...anything.

        • by Talderas (1212466)

          Wickard vs Filburn is the case which basically started the bullshit interpretation of the Commerce Clause.

    • by operagost (62405)
      And the fact that the decision was based on NJ law, not the US Constitution, still doesn't fly because the supremacy clause clearly holds, looking at both the 14th and 4th amendments. Claiming they're "business records" is stupid. Yes, they're business records. This just means that the business doesn't get to claim privacy rights to them. However, it's my information, so I do!
      • And the fact that the decision was based on NJ law, not the US Constitution, still doesn't fly because the supremacy clause clearly holds

        NJ is free to offer its citizens more protection than the General Government does - that doesn't constitute a conflict under the Supremacy Clause. Properly viewed, the Supremacy Clause only applies to the enumerated powers of the Constitution anyway - it should not even apply in cases where States' powers are being infringed, unless one of the Bill of Rights protections a

    • by spacepimp (664856)

      I agree with you on this. That the nature of it being digital does not imply that there are no expectations of privacy. The logic i have heard is that you need to have a third party involved. Since that third party has knowledge the idea of privacy is non existent. therefore they can get their grubby hands on it. However,. If I send a package/letter it involves a third party. Why is that different?

    • This needs to be taken to SCOTUS, extra pronto.

      Yes, and.... if the SCOTUS ruling concurs with this one, what are you, poor devils of American citizens that you are, going to do then ??

      • by fnj (64210)

        if the SCOTUS ruling concurs with this one, what are you, poor devils of American citizens that you are, going to do then

        Well, you are presuming future events which haven't occurred yet, but to answer your question, corrupt dickheads in the supreme court can be impeached by the house and tried by the senate, with immediate removal from office without appeal the penalty following conviction. Look, I know I'm running the risk of being laughed out of the room for even suggesting this, but after all, it is the

    • by Froggels (1724218)
      Unfortunately the SCOTUS would in all likelihood agree with federal appeals court decision, ripping open the already gaping hole in the Constitution even further. The concept of checks and balances cannot work as intended in the current US system where the legislative executive and judicial branches of government are all serving the same greedy corporate interests. The current system is rotten at every level all the way to the core and there is nothing that anyone can do about it until it's too late. In the
    • by Hatta (162192)

      This needs to be taken to SCOTUS, extra pronto.

      Where they can rubber stamp whatever law enforcement wants, extra extra pronto.

    • What? Emails, text messages and other electronic communications are not "papers", you say?

      The question is whether they are *your* papers. If they aren't then the 4th amendment doesn't apply. It is not entirely obvious whether phone records should count as your property nor is it clear whether you have a reasonable expectation of privacy regarding them. (For the record *I* think they should be treated as yours and not available to law enforcement without a warrant - but that's just my opinion) If they are yours, then the question becomes whether the search is unreasonable. But if they aren't

      • I've often wondered why privacy lawyers don't frame it differently. It's not about the papers, it's about the person. Location tracking necessarily implies that the surveillance target is no longer secure in their person.
    • This needs to be taken to SCOTUS, extra pronto.

      Careful what you wish for. Relying on Alito, Roberts, Scalia (and his shadow), and Kennedy randomly flipping his coin to insure your mere human rights is sketchy at best.

      The more I think of these a-holes, the more I think of all the 30s era German judges that rubber-stamped the Chancellors' laws.

  • by bill_mcgonigle (4333) * on Wednesday July 31, 2013 @09:20AM (#44434881) Homepage Journal

    The Court was unanimous in /US v. Jones [politico.com]/ - it's hard to see how they'd backpedal because their concern was over the surveillance nature of modern technology, not merely the source of said data. By their logic in /Jones/, this case's data gathering would also be a search.

    I'd feign shock that the 5th Circuit couldn't understand the /Jones/ decision, but it's so much more realistic to believe that those judges just wanted to give government power another bite at the /Jones/ apple.

    • I agree with your reasoning. I'm just not as confident as you are in the consistency of the Supreme Court. That said, I think the 5th Circuit has willfully ignored the constituion and the intent of its clauses.

    • by Hatta (162192) on Wednesday July 31, 2013 @09:54AM (#44435317) Journal

      Wasn't the issue in Jones that the police affixed the GPS tracker to the vehicle without a warrant? When you willingly carry a tracking device, the expectation of privacy is entirely different.

      • Yeah, Jones is tricky. In fact, after SCOTUS threw out the GPS data, they had a retrial [wikipedia.org], and the prosecution used cell tracking data instead of the GPS data. The district court said that was OK. It never went back up the line to the Supremes, though, because Jones took a plea deal rather than keep fighting.

        The problem is that while the justices voted unanimously in Jones, they did so for different reasons. A number regarded the placement of the GPS device as a personal trespass, which would not apply to

      • When you willingly carry a tracking device, the expectation of privacy is entirely different.

        The NJ Court's opinion is that people *don't* willingly carry a tracking device - that that information is incidental to the provision of the service and not part of the customer/provider bargain.

        That's how everybody I know views the service they're paying for. And there's no business reason related to the provision of that service for the telcos to retain nonymous location data either, so it's entirely a governme

    • by Chuckstar (799005)

      Please read the Jones opinion.

      The supreme court ruled the way it did only because the FBI had to encroach upon the vehicle in order to place the tracking device. The court even acknowledged that there are ways to introduce such a device into a vehicle without violating the 4th amendment. There was a previous case where a radio beacon was introduced into a suspect's car by hiding it in a container which he accepted voluntarily from an informant. The court reaffirmed the contitutionality of that type of tr

    • For anyone who isn't aware, the 5th circuit is generally taken to be conservative while the 9th is generally taken to be liberal

  • by MrL0G1C (867445) on Wednesday July 31, 2013 @09:22AM (#44434899) Journal

    So if MS' s XBone records you and saves the data on its corporate servers, it 'clearly' becomes business data and the government can then spy on you without pesky lawsuits or constitutional hassles.

    Judge is a twisting cunt and just shafted all Americans big time.

    • by gl4ss (559668)

      more importantly anything you store on the cloud that is somehow billed for by someone then it's interstate commerce?

      sounds like bullshit.

      (technically storing your email and it's access data is quite similar to this data)

      • by fnj (64210)

        sounds like bullshit.

        ... and looks like ... and swims like ... and quacks like.

  • Hm. (Score:5, Insightful)

    by Anonymous Coward on Wednesday July 31, 2013 @09:22AM (#44434913)

    Then, in the spirit of an open government, I would like to have all historical location data of all the elected politicians please.

    • You know, that's the world we live in. If some politician finds out that his privileges have been nullified and his or his family's travel is now a matter of public record, they'll vote to pull back executive power. Slightly OT, but there was a small town around KC on a highway that commuters used. Their cops routinely wrote spurious tickets and pulled commuters over for absolutely anything and sometimes for made up reasons (touching the yellow or white line, driving too fast, driving too SLOW, in some c

    • by steelfood (895457)

      Preferably visualized in this [www.zeit.de] form.

      Not just elected politicians either. Every high-level government worker, for their government-issued phones and pagers.

  • by timeOday (582209) on Wednesday July 31, 2013 @09:22AM (#44434915)
    Even if the carriers can legally share their "their" data (about you) without a warrant, nothing says they have to, unless there is a warrant. It seems a provider would have nothing to lose, and could gain, by promising confidentiality unless there is a warrant. Do any of them have any meaningful sort of privacy policy about this?
    • by Anonymous Coward

      I don't know how the hell they can put "it's business" in front of "your rights" but they did. Now all we need to do is start a business that hires folks to walk around neighborhoods, keeping tabs on home address, car tags on the property, time. We don't have to stop at homes either, this could go all the way to businesses, government buildings. And it doesn't have to stop at citizens either, we can do this to police/city vehicles/personnel as well. See the thing to bring to light here is the fact that

    • by pixelpusher220 (529617) on Wednesday July 31, 2013 @09:55AM (#44435325)

      nothing says they have to

      Actually, lots of the Patriot Act and such recent legislation is making them do exactly that. They don't have grounds to oppose a subpoena since it isn't incriminating of 'them'.

    • Nothing to lose? You realize the government can lean on companies that don't cooperate right? Make all kinds of things more difficult, more costly, and sometimes even impossible. From spectrum deals to taxes to grants to visa applications, our various federal departments are far too interconnected to claim that they have "nothing to lose" by refusing to cooperate.

    • by MobyDisk (75490)

      We need data protection laws. They should not be able to share such data without a warrant.

  • by ArcadeX (866171) on Wednesday July 31, 2013 @09:30AM (#44435023)
    if you are using a cel phone, and paying a carrier to provide service to your phone, it's a 50/50 relationship. as crappy as it is, you shouldn't have an expectation of privacy. same reason i like to pay cash, i have no expectation of privacy when visa / mastercard keep records of all the transactions performed by them on my behalf.
    • by CanHasDIY (1672858) on Wednesday July 31, 2013 @09:56AM (#44435353) Homepage Journal

      if you are using a cel phone, and paying a carrier to provide service to your phone, it's a 50/50 relationship. as crappy as it is, you shouldn't have an expectation of privacy.

      Hmm, let's apply that mentality to a few other arenas, and see how well it works:

      If you are sending a package, and paying a carrier to deliver it, it's a 50/50 relationship... you shouldn't have an expectation of privacy; UPS can just rip open your package and go through it.

      If you are traveling, and paying a service to move you (taxi/airline/etc), you shouldn't have an expectation of privacy; Taxi drivers can strip search passengers.

      If you use electricity, and pay a service to provide it, you shouldn't have an expectation of privacy; the utility company can go through all your shit to see what you're using the electricity for.

      Applied to pretty much any other service available/necessary, that sort of thinking obviously does not fly; so why would it be OK with communications?

      • by ArcadeX (866171)
        if you send a sealed package, you have the expectation of that package staying sealed. you have no expectation that UPS won't keep track of where they picked up the package, and where it was delivered to; that data belongs to them. you have an expectation that the cel carrier won't read your text (not much of one), but where they pick up the text and who they deliver it to is not data that belongs soley to you.
        • if you send a sealed package, you have the expectation of that package staying sealed. you have no expectation that UPS won't keep track of where they picked up the package, and where it was delivered to; that data belongs to them. you have an expectation that the cel carrier won't read your text (not much of one), but where they pick up the text and who they deliver it to is not data that belongs soley to you.

          OK, so that explains tracking in/outbound call origin/destination information... but not location tracking or any of their other questionable practices. Besides, you said that we "shouldn't have an expectation of privacy" when it comes to carrier services in general, a philosophy I not only disagree with, but find incredibly dangerous were it to become the status quo (yea, yea, I know, don't remind me).

          you have an expectation that the cel carrier won't read your text (not much of one)

          Say hello to 2 years ago [cnn.com]

      • by steelfood (895457)

        If you are sending a package, and paying a carrier to deliver it, it's a 50/50 relationship... you shouldn't have an expectation of privacy; UPS can just rip open your package and go through it.

        Actually, this was settled with mail via the USPS a while ago. Stuff inside the envelopes were considered confidential, while any markings on the outside (address, return address, etc.) were not.

        I believe this was used to justify the legality of collecting certain types of "metadata" not so long ago.

        • If you are sending a package, and paying a carrier to deliver it, it's a 50/50 relationship... you shouldn't have an expectation of privacy; UPS can just rip open your package and go through it.

          Actually, this was settled with mail via the USPS a while ago. Stuff inside the envelopes were considered confidential, while any markings on the outside (address, return address, etc.) were not.

          I believe this was used to justify the legality of collecting certain types of "metadata" not so long ago.

          And if the government could prove to me that the metadata was all they had access to, I probably wouldn't be nearly as upset about it.

          However, when pressed they respond "we don't have to tell you," well, that doesn't inspire a lot of confidence. Not to mention, given the track record of the federal government, we'd be stupid to take them at their word.

    • by Holi (250190)

      Well that's where you and I differ. I don't think having a business relationship with a company is enough to require me to give up my expectation of privacy. I expect them to use my usage data to bill me, not to give to the government.

      If the government wants something it should be the de facto standard to need a warrant. They should not be allowed to side step the constitution by having a 3rd party collect the data.

  • ...there is no such thing as a well-functioning judicial system in the USA, dixit Jimmy Carter. I tend to concur.
  • by webbiedave (1631473) on Wednesday July 31, 2013 @09:46AM (#44435225)
    ... and the rest of Amish went along their day, unaware of how right they are.
  • The moment you write a document like the constitution, somebody is looking for how to game it. Over time they find technicality after technicality that allow them to push the envelope in new ways, until the entire spirit and intent of the original document is so shreded that it barely resembles what it was intended to.

    How do we read amendments like the 4th and 5th so narrowly? Is it really ok that minor technological changes allow technicalities to be used to extend government powers in ways never before envisioned?

    How does anyone seriously and honestly look at the constitution, then look at what is going on here, and not see that the only reason this doesn't get prohibited under them is minor technicalities that never could have been seen before they happened? Its a violation of the very spirit of the document!

    • by MobyDisk (75490)

      What we should learn from this is that a constitution needs to be a living document. Perhaps constitutional conventions should be required every 20 years or so.

      Instead of having courts arguing over the wording of it, the people should just correct the words. Is "persons, houses, papers, and effects" not clear anymore? Change it. Do we honestly think that nuclear weapons aren't "arms?" Let's just fix that so there's no question.

      • by zzsmirkzz (974536)
        It IS a living document now that can be changed. However, the methods for changing it, properly, are hard and those in power are to lazy to do it, especially when the people aren't forcing them to. Of course, if they were to do it the proper way, they actually need the support of the vast majority which in most of these cases they do/did not have.
    • by steelfood (895457)

      The moment you write a document like the constitution, somebody is looking for how to game it.

      They're called lawyers, and this idea applies to all written documents.

      The judges are supposed to keep that sort of behavior in check, but they are pressured by various forces, including the other two branches of the government as well as the people, to do the popular thing instead of the right thing. Their own biases also come into play, but good judges either try to set that aside, or recuse themselves if they are unable to.

  • Not only are business people, with the freedom so speech and the ability to contribute unlimited funds to elections, but now, people are businesses with no 4th Amendment rights.

    The transformation is complete. The fascist dream of merging corporate power with state power has been achieved *by turning people into businesses.*

    That's how they win. They come at you in a way you never imagined.

  • by Beer_Smurf (700116) on Wednesday July 31, 2013 @10:54AM (#44436067) Homepage
    Then is should be perfectly legal to hack your phone to give false location data.
  • The court is composed of seventeen active judges [wikipedia.org] and is based at the John Minor Wisdom United States Court of Appeals Building in New Orleans, Louisiana.

    Many of the judges were appointed by Bush and Regan. Go figure why this didn't pass :|

    (doesn't quite paste correctly from the link so use you imagination)

    # Judge Duty station[4][5] Born Appointed Chief Appointed by
    71 Carl E. Stewart Shreveport, LA 1950 1994 2012 Clinton
    51 Carolyn Dineen King[6] Houston, TX 1938 1979 1999

  • ...because location data was 'clearly a business record' and therefore not protected by the Fourth Amendment.''

    Yeah, it is a business record. My business, not yours, assholes.

  • DROID4 : phone off = no location tracking? I can do without texts from the GF while about my business being an existential threat to the United States.

Every nonzero finite dimensional inner product space has an orthonormal basis. It makes sense, when you don't think about it.

Working...