Do cops need a warrant to stalk you using your cellphone records? US Supremes to mull it over

After years of contradictory appeals court decisions, the US Supreme Court will finally hear a case about how private your cell phone location should be. At the heart of the case is a simple question: should the cops be required to get a warrant to obtain your location record from your mobile phone company? That question has …

[Anonymous Coward]

This will probably be another unanimous decision, and the 'law and order' politicians that think police should have unlimited ability to grab information from all possible sources will point to London and angrily declare we shouldn't take away tools law enforcement needs. We might even be treated to something from the tweeter-in-chief, providing Fox News mentions the ruling so Trump knows about it.

[Eddy Ito]

I don't think it will be unanimous. Alito is an easy pick to be more in favor of police powers as the lone dissenter in the 2014 case and I wouldn't at all be surprised if Breyer also sided with the cops. Depending on the arguments I could also see Thomas and Roberts going pro police but that would take some impressive work on behalf of the prosecutor so I'm going to call it 7-2.

[Mike Moyle]

Is there any way to find out, without searching the phone itself, if the suspect had "location services" -- or however the various platforms refer to it -- turned on? If it's on, then they clearly do not consider their location private information.

[Adam 1]

I think you might be somewhat confused over the meaning of private. My medical history is private. That means that I have the right of control over how that information is used and to whom it can be shared. I might choose to share it with my doctor because I trust them* and I am comfortable that it is beneficial to me. I might permit my doctor to share that information with a specialist. I might permit the specialist to share a very small portion of that information with my employer to assert fitness to work. Add my health insurer or hospital or ..... As you can see, it is no longer a secret, but it is still private. There may even me some reason to share this information with apps on your smartphone. Healthcare claim apps, flappy birds, it doesn't make a difference whether you think the app has a reason to know. The question is about informed consent and control. No more no less. So if someone chooses to let Google track every time they are at home or work or school or the shops or a place for their bowel movements, as long as they are providing informed consent, who are you or I to tell them they can't. Sharing with that company may be unwise, but that doesn't mean they don't have the right to choose who to share their private information with.

*that is independent of whether that party is deserving of that trust.

[Anonymous Coward]

"My medical history is private."

...in an ideal world. This is not one of those.

[Adam 1]

>> "My medical history is private."

> ...in an ideal world. This is not one of those.

I get where you're coming from, but privacy is an attribute of the information that is not lost but rather violated. The infamous icloud "hack"/"our passwords are crap" saw many private photos exposed to people that the subjects of those photos did not approve. They don't become non private just because someone dumps them on pastebin. The owner may no longer have a practical way of a asserting their right to privacy but that doesn't mean they don't have that right.

[Anonymous Coward]

Location services isn't binary

At least on iOS, you can turn it on or off individually for different apps. I can give the Maps app my location info, since it is kind of useless without it, without giving it to Facebook.

However, that's irrelevant because what the cops are accessing has nothing to do with your phone's settings, they're using the cellular company's tower triangulation information. That works even if you reject all smartphones and are rocking an old school Nokia candy bar phone.

Saying that "oh, because you decided to enable location services for Maps you don't consider that info private" is just plain ignorant. You can give your social security number and last couple years tax returns to a bank when applying for a mortgage, but still consider that info private. You can confess a crime to your wife, your lawyer or your priest without the cops feeling entitled to snoop upon one/all of them hoping to catch you doing so.

[David Nash]

Re: Location services isn't binary

Is iOS maps really kind of useless without location info?

I don't use iOS but I routinely refuse to give location info to Google Maps. I often want to check a route or look up something on the map or see the way to somewhere. I know where I am or where I intend to start from so I just zoom to it in a couple of seconds manually, or search.

[Adam 1]

Re: Location services isn't binary

> At least on iOS, you can turn it on or off individually for different apps.

You can do that on android marshmallow or newer. You can also install (on any android version) a fake GPS app and convince the app you are elsewhere. Quite handy for testing your geofencing software feature works whilst simultaneously showing the pointlessness of geofencing on a device you don't control.

[handleoclast]

Chief Justice John Roberts said

Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans 'the privacies of life.'

Given that Roberts is heavily biased towards the GOP "Laura Norder" camp, my assumption is that he has some seriously embarrassing stuff on his cellphone.

The same is true of many of us. But Roberts and his ilk don't give a shit about the masses, only about themselves. Congress has been known to create legislation which has specific exemptions for Members of Congress. The Supreme Court doesn't have the luxury of interpreting laws in such a way that the justices are exempted, hence...

Seriously embarrassing.

[Anonymous Coward]

This is a tough one...

There needs to be a system in place to allow cops to locate someone quickly (using their cell phone) in the case Kidnapping/crimes in progress. But, be restrictive enough to prevent abuse... in other words involves a judge.

My first thought would be to funnel the requests through the FBI from local law enforcement. The FBI looks up the information from the phone companies immediately, and gets the information back to the cops. All the requests get reviewed my a judge within 24 hours, and the FBI is responsible for following up on anything that gets flagged as possible abuse of powers. FBI works with Internal Affairs to determine if an abuse occurred and determine the punishment.

I think that's a reasonable scenario once the bugs are worked out... The main thing is to make sure the judge isn't rubber stamping everything without proper followup.

[Alistair]

@boohoo4u

Not a tough one at all in any case.

MPR/kidnapping/Emergency calls, etc will have documentation (i.e criminal report #) for this the cell companies do an (oh crap) location listing.

Investigating a criminal event and you want to know where the *criminal's* phone *was* - go get a warrant.

Oh.. damn. Look at that, common sense perhaps?

[a_yank_lurker]

Re: @boohoo4u

@Alistair - First an upvote. The problem is the local Stasi are too lazy and bloated with donuts to fill out the necessary paperwork to get warrant. If they have the phone, it's not going anywhere. If they can convince a judge they need a warrant, which more like a speed bump, they are in.

[Adam 1]

> The police went to mobile phone operators and retrieved four months' worth of location data that showed Carpenter was near each of the locations when they were robbed (or, more accurately, his phone was).

And what about all the other customers whose location data was uncovered during this fishing exercise? Why do they not deserve protection against unreasonable searches? I like the guilty being caught and charged as much as the next guy, but there is good reason why we don't give law enforcement a free for all, why we establish limitations on their powers to search or compel data. Balancing the right to not be interfered with in your day to day life against the necessity of catching the bad guys is the very reason that we have things like warrants.

[tom dial]

It is not clear that any other customer's metadata was "uncovered" by the police request. According to the ACLU report on US v Carpenter, the request was for records relating to the accused, Timothy Carpenter and Timothy Sanders. It does not seem to have been a "fishing exercise."

It would be reasonable in circumstances similar to those in Carpenter for police to obtain a warrant. There was an ongoing investigation, and they clearly suspected Carpenter, Sanders, or both, and might well have been able to get a warrant based on probable cause without a great deal of difficulty. Superficially, though, this case also seems similar to Smith v Maryland, in which the Supreme Court found a warrant for metadata unnecesary, but also somewhat dissimilar in that the location data sought in Carpenter was a given in Smith, and did not exist in the same sense. Metadata now is much more extensive and problematic than it was in 1976, and a different answer in this case will not necessarily overturn Smith.

If Carpenter wins, he and maybe his accomplice are likely to get no better than a retrial without the phone company location data, and may yet be convicted on the other evidence available to the prosecutor.

[Alistair]

@ Adam 1

Although we retain golden copy data, what is extracted and handed out from our platform includes only non PII of any connection other than the target/requested data.

[Richard Jones 1]

What a Mess

What is next, objecting to the use of number plate location data to prove a vehicle was at a location? Or an image of someone's face captured during a break in or a witness statement that they saw AAA do YYY?

I am not an American but I find it hard to believe that the founding fathers envisaged a constitution designed to protect criminals at the expense of the innocent, though come to think of it the Criminal Protection Service, (CPS) in the UK often appears to do just that.

[Anonymous Coward]

Re: What a Mess

Your cart is before your horse there. Of course any legal system must protect the innocent from criminals, but it must not do so at the expense of the innocent being unjustly and arbitrarily regarded as criminals.

This is the essential point of "probable cause" - it means you have to have built a case against someone before you can go gathering private information about them, rather than just going fishing for information that may or may not suggest criminality. The latter is far easier than the former, so of course it's the favoured solution of hard-pressed, overworked law enforcement officers. It's a damn difficult circle to square, which is why, finally, the right thing has happened and it's gone to the Supremes.

[Fatman]

Re: What a Mess

<quote>... must not do so at the expense of the innocent being unjustly and arbitrarily regarded as criminals.</quote>

SHIT!! You understand the modus operendi of most USofA police forces. It is 'the Thin Blue Line' against the hordes.

[Anonymous Coward]

Re: What a Mess

Actually, Benjamin Franklin is quoted in his use of Blackstone's formulation as saying, "it is better 100 guilty Persons should escape than that one innocent Person should suffer." So, yes, I'd say they did envisage a constitution that protected criminals, though as a side effect of protecting the innocent. And that is the point of the 4th amendment.

[silverfern]

Re: What a Mess

Yeah, except that, in practice, the police in the US don't agree with that that philosophy and apply it in the converse.

Remember that justice and penal policy concentrates on punishing the guilty.

[silverfern]

Re: What a Mess

This is a bit late. Sorry.

I'm not a lawyer but this throws up a broader question: what about the right to not be obliged to incriminate yourself?

Don't misunderstand me: I have no wish to defend the guilty.

[M7S]

Question

How is using the data on the location of a phone from the cellphone towers a greater invasion of privacy than, for example, the detectives having a chat with Huggy Bear who tells them that "the word on the street, Man" is that this dude was seen near each of the crimes.

The latter would be regarded as good old fashioned police work. The former is simply a more efficient method of the same, and could also be used to exclude a number of potential suspects from further enquiry, or at least their telephones.

https://charlieschinderwolf.files.wordpress.com/2009/12/huggy-bear3.jpg

[thomasallan80]

Re: Question

Well, first off there is no such thing as 'location' data from cell phone towers. A mobile tower has three arrays that point in different directions and CAN NOT tell you how far away the call was made or do anything anywhere as close as GPS coordinates. Cell site data can say you were in a general direction and that is it.

Phone experts have managed to skip cell towers (i.e. the tower the phone has connected to for a call can have another tower in between it and the mobile due to how busy the middle tower is) especially when mobile phones were first introduced and towers were designed for maximum coverage so saying that cell site x received a signal doesn't mean jack unless all other cell sites in the area have signal data for that same mobile (i.e. they are specifically targeting that mobile). In which case you have 10 towers with different signal values over time and then you can say with 90% certainty (or whatever number it is) that this mobile was in this very small area at this specific time and then you have your 'location' data.

Second as for the word on the street, that can then be traced back to someone who can give independent information (i.e. Leg work brings up a witness who says, I was across the road when the place was robbed....) and can be cross examined. Where as a cop saying I queried a database and it looks like this phone was in the area of all crimes I'm looking at so it must be this person and I didn't look at anyone else because this looks good enough is seriously not on.

The whole point about police work is they first INVESTIGATE and then PROVE not the other way around. Judge, there is a known four man robbery crew in the area which from analysis of height and build could match surveillance data of the crimes and we would like to query the mobile providers to see if these four numbers were in the area of the robberies. Oh shit, it looks like those four peoples mobiles were near every site robbed and there is no reason for them to be there so now I'll have a talk with them at the station and if they don't have a good reason for being there they will be charged.

[Alistair]

Re: Question

@ thomas Allan -

Much of your statement is based on out of date technology. Newer cell site design, newer phones newer firmware. Please also keep in mind that the behaviour of specific hardware can be altered by proprietary sofware installed. (i.e you buy a phone with your cell co's software .. .) so make *NO* assumptions about what sort of data is transmitted in the CDRs. And you've made plenty of assumptions.

[Anonymous Coward]

Where this is going

In the near future, your driving over the speed limit, your phone will be used to determine your speed and you will get a ticket, or be an accessory to the crime (passenger).

(if you ever use google driving directions, you'll notice it shows traffic speeds in detail, that is due to phones with any google app even if it's off, reporting speed, location and direction)