back to article Suspected armed robber’s privacy was not infringed by cops’ specific cellphone tower data slurp, US judge rules

The privacy and constitutional rights of a suspected armed robber were not infringed when cops trawled records from cellular towers near two robberies and spotted the presence of his phone. The case concerns Charles Anthony Walker Jr, who police have charged with armed robbery at two jewelry stores in North Carolina in 2018, …

  1. whitepines Silver badge
    Big Brother

    This is just one more reason not to carry a phone, let alone one that's turned on all the time. As public opinion blows with the wind and associated laws, with ever increasing punishments, change to meet it, it's simply not safe to have such warrant free records strewn about for easy pickings. Want to be sent to prison or blacklisted from professional work based on where you were 20 years ago, even if you were doing nothing wrong by the laws and policies of the time the record was created? By all means, keep that phone glued to your face or stuck in your pocket.

    Perhaps Orwell was simply 30 years too early in his famous work?

    1. Anonymous Coward
      Anonymous Coward

      Protestors beware your phone

      Well if you're protesting police crimes, you should realize your phone is broadcasting your data, and via a bunch of Facebook, Google and other apps, its also noting everyone you interact with.

      Trump's current using border patrol agents to snatch people off the streets, not arrest them, some sort of illegal snatch-and-detain. Some have been released, some are still missing. If you think he also isn't getting the Telco data on those protestors then you'd be very much mistaken. All limits are off now, he knows he cannot win a vote, so there won't be a vote.

      Nothing matters now, not black lives, not white lives, not soldiers in Afganistan's lives, not doctors lives, not nurses lives, not teachers lives, not elderly Republican voters lives, not blue lives even. He'll do anything to keep power.

      Carry a star and stripes flag when protesting and if you're Republican, be sure to say so on your placard. It spoils the RT/FoxNews/Sputinik/One America narrative.

      Oh and Fox News, see how far you've changed? Betsy Devos is sending kids into schools during an epidemic, her brother was offering mercenaries to Putin, Putin is killing US troops, and you're defending it all. The change was bit by bit till you become a news channel attacking the USA and you were do locked into defending 'team red' you never really noticed what's you'd become.

    2. Throatwarbler Mangrove Silver badge
      Paris Hilton

      "This is just one more reason not to carry a phone"

      You're planning on carrying out armed robbery?

      1. whitepines Silver badge

        Um, no? The concern is warrantless data collection for any perceived violation of law. If the only way to avoid warrantless collection of my location and who knows what else data is to switch the phone off or leave it behind, then so be it.

        Regardless of that pesky issue, in this particular case the armed robber got exactly what he deserved.

        1. Control Phreak

          The same argument presumably applies to CCTV - can't go anywhere with a CCTV camera if you don't want the police to potentially be able to identify you were there at a particular time.

          It doesn't seem unreasonable for the police to be able to ask "who was near this location when the crime we're investigating happened?", which is the way the judgement has been framed. The earlier Carpenter decision ruled that asking "where has this person been?" does require a warrant.

      2. DS999

        The problem is that what is not a "crime" today might be one tomorrow. Trump's gestapo are plucking people off the streets who haven't even done anything other than protesting. I'm sure you are probably listening to Fox News lies and believe all anarchists that are fairly arrested by properly marked federal officers so you are fine with this power since Trump is exercising it against those you think are undesirable.

        Now imagine Trump loses in this fall and Biden decides to keep that secret police power that Trump has added to the far too lengthy list of presidential "powers" (i.e. unconstitutional things that congress didn't challenge Trump on, or didn't challenge previous presidents on)

        Maybe you decide to protest some Biden policy you think will ruin the country, and if your phone was there the secret police don't even need to show up at the protest where they can be filmed. They just black bag you walking to your car in the parking ramp after work the next evening (insuring any CCTV cameras in the area are out of order and there are no witnesses) and put you in a secret detention center in the basement of a downtown federal building without telling you why you are arrested or giving you a chance to call anyone. Still think it would be only criminals who would be affected?

        1. Pascal Monett Silver badge

          Yes indeed.

          It is interesting to watch the once-acclaimed bastion of Freedom and Justice for All descend into the madness of dictatorship, one little step at a time.

          The only question is : will it stop ?

          The upcoming election is going to be democracy's final test.

          1. Anonymous Coward
            Anonymous Coward

            "once-acclaimed bastion of Freedom and Justice for All"

            I'm confused, who are we talking about here?

          2. LucreLout Silver badge

            The upcoming election is going to be democracy's final test.

            Sorry Pascal but I have to disagree.

            The problem isn't Trump or Biden, its the total outright polarisation of politics being caused by the losers refusal to accept the winners legitimate democratic mandate. We can see this behaviour all over the globe.

            What happens is that we then begin lurching between extremes, and sooner or late one extreme just really doesn't fancy letting go the levers of power and so they stage a coup of sorts and become an effective dictator for life.

            The Republicans should have accepted Obama as President rather than kicking off the birther movement. The Democrats should have accepted Trump as President rather than planning a revenge impeachment for Clinton before ever he set foot in the White house. So it goes.

            The only way to salvage democracy is for the losers to wind their necks in, swallow hard, and to accept they lost the vote and that the other outcome - whoever or whatever that may be - is democratically legitimate and must be enacted in good faith.

            In that regard Trump & Biden are mostly irrelevant. The real danger is that before the dictator comes the civil war.

        2. Martin Gregorie Silver badge

          Non-USAian here: there's one thing that's always puzzled me: the kerfuffle when Trump refused to hand over his tax records after inauguration.

          Was he merely choosing not to follow a time-honoured convention or did he break a law by refusing?

          If the latter, why wasn't he arrested? After all, nobody should be above the law in a democracy.

          1. DS999

            Making tax returns public was a convention that had been followed by candidates of both parties for half a century, but is not a law. There is also a law that the treasury department MUST hand over anyone's tax records upon request to the ways and means committee (or maybe some other committee, whichever one is responsible for writing tax laws) that is pretty clear since it does not require a reason beyond that it may help them in writing tax laws. Trump's administration is probably in violation of that and his lawyers are challenging it, but if someone ever gets arrested over it (which is unlikely) it would be the guy in charge of the treasury dept, not Trump, who would I'm sure claim he never gave any orders not to hand them over. The one thing he's learned from decades as a crook is how to arrange things so others take the blame for any criminal actions.

            I suspect making your tax returns public before the election will become a law for any candidate on penalty of forfeiting any electoral votes (the states could even do that on their own by not permitting ballot access to any candidate who hasn't followed such a law) In fact I suspect a LOT things that have been 'conventions' that everyone followed until Trump decided to get away with everything he could and then some will have to be codified to a prevent a repeat of the damage of he's wrought to democracy.

            In an ideal world not only would they be made laws, but Biden would sue over each and every one to force Supreme Court review of the laws so a future president couldn't violate them, claim they were unconstitutional, and drag them through court like Trump has done. If they are found unconstitutional they can fix those laws and try again. The problem is that presidents don't like to limit their power, so unless someone could get him to make a promise to do this before the election, after the election he could say (and not be wrong) that the country has much bigger issues to deal with like corona, the economy, etc. Politicians always say things like that, as if presidents don't have thousands of people working for them who allow them the luxury of doing many things at once.

            1. Martin Gregorie Silver badge

              Thanks for a very clear explanation.

        3. LucreLout Silver badge

          The problem is that what is not a "crime" today might be one tomorrow.

          The converse has been shown to be as likely if not more so. My only reasoning for not liking Turing's posthumous pardon is that a pardon implies wrongdoing that has been forgiven, when it is the UK that should feel guilt for its appalling treatment of one of our greatest geniuses.

          Generally what was not a crime in the past cannot be prosecuted once it becomes illegal. See the criminalisation of Marijuana and Opium but no retrospective prosecutions by way of my evidence.

      3. Anonymous Coward
        Anonymous Coward

        Warrentless = everything

        "The judge decided nevertheless that despite it being an armed robber, and cell phone location data tied to a robbery gathered without a warrant, that the Carpenter decision did not apply."

        If they don't need a warrant (i.e. the police ignored the previous Supreme Court ruling), then why would it be limited only to armed robbery? They can simply get the data whenever they like, the only time you'll ever hear about it, is when its being used as part of evidence for prosecution.

        So this judge has without thinking, moved all that private data into Bill Barrs hands, eliminating the judiciary's checks and balances role on that.

        1. EnviableOne Silver badge

          Re: Warrentless = everything

          the decision specifically states that the warrant wasnt needed because it was for a limited geographic scope and a limited timeframe.

          so two base stations for 1h30 mins

          if they'd grabed a day or a week of info, or from 8 or 100 base stations, then there might be some issues.

          in this limited fashion I agree with the judge, its similar to collecting CCTV footage from the surrounding area

    3. LucreLout Silver badge

      This is just one more reason not to carry a phone, let alone one that's turned on all the time.

      I can't take the battery out of mine so its pretty much always on.... at least, that's the only safe assumption.

      ever increasing punishments

      Evidently you're not in the UK. Tough on crime, tough on the victims of crime.

      Sorry, but I have no sympathy if an armed robber is caught and convicted and then jailed for 30 years. Good. Thankfully I've never had a firearm pointed in my face by an angry stranger, but I can only imagine its terrifying and deeply traumatic. What I wonder is how the hell their defence was considered before the courts when it essentially amounts to "Well, yes, my client did do the armed robbery but Officer Wiggam may have been lax on his paper work so my client shouldn't be punished". In a reasonable system Officer Wiggam may also face sanction but that shouldn't absolve the scrote of their played for and got justice.

      For those of a criminal bent, having the phones location tracked may be problematic, but for the honest citizen it can also be useful. I can prove that I wasn't speeding through Wales in a car with my cloned number plate on it last week because my phone records show me as visiting family in Edinburgh at the time and they're backed up by witness statements.

      I'd prefer not to be tracked all the time, obviously, but I've never worried that so being would fit me up for a crime I didn't commit. Does anyone here really worry about that? If so please can you explain why in rational terms?

      1. Anonymous Coward
        Anonymous Coward

        It sucks to see criminals fight on technicalities, but it's because of those fights you're less likely to go to prison if you were unlucky enough to happen to be near the scene of a crime and Officer Wiggam decides it's just easier to arrest you than so a full investigation.

      2. sofaspud

        Sure, I'll bite. Bear in mind that this is a US-centric viewpoint; I don't know about other locations.

        Cops in the US have a knack for looking for the easy way out. They don't generally bother with actually investigating anything and the first suspect they latch on to is the one whose life they'll ruin trying to make the crime stick, even in the face of overwhelming evidence otherwise. Further, with civil asset seizures working the way they do, even if you're exonerated you could lose everything and have no recourse to get it back.

        It's bad enough when this happens because you just happened to be in the wrong place at the wrong time, but if this were to happen because your *phone* happened to be connected to the wrong tower at the wrong time? Surely it's not so difficult to see why folks might be a little alarmed about this.

        Anecdotal evidence isn't, I realize, but as an example of the wrong-place-wrong-time problem: I was arrested for assault and attempted robbery -- a crime I most emphatically did not commit, I note. I just happened to be down the street from the convenience store where the fight happened, and the victim described their attacker as "a big white guy". I fit that description and was also wearing jeans (in summer! obviously I'm a criminal), and so I got cuffed and stuffed and hauled down to the station. I'll note that even at the scene the victim was saying they had the wrong guy (meaning me), but by the time we got down to the station (in separate cars) they'd been convinced that the cops had the right guy after all.

        Security cameras saved my ass, proving that not only was I not even there, I looked nothing like the guy who did it, either.

        Which, okay, fine, right? I didn't go to jail, charges dismissed, no harm no foul. Except that arrest has dogged my record for *decades*. I should never have been arrested in the first place, but to this day its the first thing that pops up and I have to deal with the aftermath over and over again. All because I was in the wrong place at the wrong time.

        It doesn't seem to me that obtaining a warrant first is too onerous a burden to impose when the results of the cops getting it wrong can have such lasting impact. At least then there's a chance of someone rational (a judge) double-checking their instincts before they preemptively decide guilt.

        Now, that doesn't necessarily apply in this case -- it reads to me like they had a pretty good idea who they were looking for and wanted the cell data to corroborate -- but if they didn't and were just looking for a lead?

        "Let's see who was nearby when the crime happened. Pull the tower data."

        "Oh ho, look at this. This guy was connected to the tower, and he has an arrest for robbery on his prior."

        "Bag him."

      3. doublelayer Silver badge

        "I'd prefer not to be tracked all the time, obviously, but I've never worried that so being would fit me up for a crime I didn't commit. Does anyone here really worry about that? If so please can you explain why in rational terms?"

        Here's one short but good reason. It has already happened. Look at arrests based on facial recognition. There have been several in the U.K. and U.S. In many cases, the person arrested doesn't look like the person identified; the cameras got it wrong. And yet, those people have been in police custody for far too long before they were released. They do get released at some point, with no charges, but do you think they get any recompense for spending some time in jail? Any way of proving to people whose meetings they missed that yes, the police did arrest them, but that they didn't do anything wrong nor was there any reason to suspect they did? Similarly, some police organizations have been known to treat some people without regard for justice. It hasn't affected me. It might not be in my area of residence. If it affects others, it's still bad and it is part of my responsibility as a citizen of a democracy to ensure there are protections for those people. One of the most useful protections is requiring warrants for accessing potentially abusable information. It has been done for decades in many countries; it can keep happening.

      4. Anonymous Coward
        Anonymous Coward

        The main issue

        Is the police being usualy power crazed little stazi have a tendancy to lie, so a police officer pulls you over, excuse me sir i think you have drugs in the car or a banana in the glove box , no i don't you cry , and who gives a fuck if i have a banana in the glove box, officer then sees it as there right, how dare you treat me as the corrupt lieing fucker that i am, now when your dragged off to the cells , he resisted arrest your honer, he savagely attacked me and tried to hide evidence , ( you disagreed with the power crazed nut) but how you put or phrase something changes the context , the judge then says well this police officer says you hit him , you attacked him , your going to jail for 5 years now, why would this police officer lie ? He does not know you, what possible motivation could he have to fuck up your life , race , gender, chip on his/her sholder, thinks your arrogant or is jelous of your possition , status of wealth , maybe he is just plane sadistic . Say your super super lucky, your officer is not corrupt, but is just lazy, yes your honer we pointed a gun at him/ her and they ran away so they must be guilty, why would they run away from a angry nut carrying a gun ? Why did you go to this individuals home guns drawn , well we data slurped the local cell tower and him/her and 59 others where there about that time, so we just went to all the people but it was the first one on the list as they ran, in the usa you have shootings of completely innocent people doing nothing wrong, so why would anyone trust them ?

        I have no issue that they caught a armed robber, if they are guilty, my issue is police the world over are people, people are flawed, give them any kind of power they will abuse it, suppose the officers in charge if the case are under pressure to catch someone, anyone!!! One can overlook data that would prove innocence simple because you like them for the crime. Also forget the police turning over data that would prove you innocent, No No No , anything you say can and will be used against you in a court of law, nothing about they will testify data that would prove you innocent. There job is to cook you if they can for anything. I SHIT YOU NOT . In my street in the netherlands my son and i makeing a little to much noise playing video games 6pm saturday night, police officer turns up, can you keep the noise down , sure ok , right since i am here and you guys are shouting maybe your son is in danger, ok maybe , ok go on then ask him if you like, ah but you need to go away in case he is under duress, ok illigal to question a 12 year old without a parent but i get the general gist as in make sure the child is safe, ok so son not in danger , son has no clue what your waffalingv about as officer ok , but i am going to put in a call to social services, excuse me what, well your shopping is all over the table , thats because we just got back from the shops and had started playing a game, ok but then why have you not put all the shopping away , because you rang the door bell and started interogating us, i don't like your attitude i am going to put in a complaint with social services to cause problems for you. This fucker was fishing for something, he was acting shady and with an agenda , at this point i am doubting he is a police officer and is now considered a armed individual that has manipulated his way into the house, at this point i am putting myself between my son and this individule, i am asking for police id to prove he is a police officer, he tells me a id number but does not provide ID , I REPEAT PLEASE LEAVE, fucker keeps spouiting he does not like my attitude , excuse me your the fucker harrasing me in my home, He states you have no respect for the law, I don't like your attitude, o and your house is a mess , excuse me ? your a police officer (maybe) not the fucking cleaner , 1) it's none of your buisness , 2) your behaving like an armed thug, to be fair my home was a little messy but so what this was a noise complaint that has escalated to mr I am law trying to cause problems with social services spouting he doesen't like my attitude with the law, I don't implicitly have a problem with law enforcement, I have a issue with people acting as thugs throwing threats around. Sorry badge or not you push your way into someone elses hone uninvited and then abuse there hospitality , yoir inlikely to like there attitude, If you don't like my attitude fuck off out of my home that you have intruded upon without a warrent . You don't like my attitude ? I am considering you as a armed imposter behaving like a thug,

        I am considering dialing 112 to call police to verify this guy is real police, and seriously considering if he makes a move for that 9mm he is going to die in the hall way of my home. While the police over step their bounds and abuse their power over trivial shit that's not really a thing, 1) don't try make it something it's not . My point is so something unimportant becomes something serious way too easy, so when it comes to something important I can not and will not believe the police can be trusted. I can think of litteraly dozens of ways the police can frame you with cell phone records .

        Ok maybe this guy was or is guilty, ok he did not call 911 , is it compulsory to call 911 ? As in legaly , they have even stated he called someone in a prison , I know at least three people that have been to prison , one for maslughter( car accident) , one for drugs which to be honest my sister deserved it as she was guilty, actualy she is a horrible person , i would not wish upon anyone, so even prison call does not have to mean anything, can be any of us so can you not see how someone who knows people in prison might not be less than incentivised to call the police, esspecialy if they think they might get fitted up for it, cell phone records typicaly put you within 15 to 25 meters of somewhere depending on signal reflections , so you were close to a crime , it does not nessasarly mean you commited a crime. Your cell phone was in that car, ahaa your guilty. No your cell phone might have been in that car , you might not have even been in the car, you were in a silver car well glad there is only onevsilver car in the world, ahh but they tpok a picture the week before, ok was he doing the shopping across the road ? I take picture of you in a car a week ago, unless i also takeva picture of you getting into same car leaving the scene it's just a picture of you in a car last week, it would beg the question at interview so can you think of any reason you might have been seen last week here? If he says no now you have a picture to say well that weird isent it, if ge says i was dropping cat at the vet across the road you look pretty stupid if it's true thou , never forgot your phone on charge ? Never dropped your phone on the seat by accident getting out the car ? The evidence presented as is seems circumstacial . Not conclusive , suspicious at best or unlucky if you have been near two crimes , althou if you ask your local police force for a local crime map , you might be horrorfied to realise your passing crime sceens all day.

        It is setting a very bad precident to allow evidence collection without some kind of oversight. If 1 cell tower is ok for a few hours, why not 2 or 3 for 5 hours if 5 hours is ok why not a day , mention some vauge well we have intelligence that they might have scoped the place for a month before, why not a month hell why not just give all data all the time works for the Nsa right, yes it's illigal and it shoulden't be done but well we won't go to jail we are not like law enforcement or anything right not like the very essence of truth and justice, just a gang of thugs ready to shoot well anyone .

    4. HellDeskJockey

      It's location data no more no less

      Yes and no. All the phone data shows is which tower you are using at that moment. If you are doing questionable activities and have your phone that is not wise. However say your phone indicates you were in another town during a crime that would have quite a different result. Your defense counsel will bring that up as reasonable doubt.

    5. Mike the FlyingRat
      Black Helicopters

      @Whitepines..

      What? You're a criminal and you're afraid you're going to get caught?

      In this case, the police didn't charge them solely based on phone records.

      Prior to 2018, SCOTUS decisions maintained that because the phone's metadata is used for things like billing, that there was no expectation of privacy.

      When you think about it... this is true of the metadata today for cell phones. However, unlike land lines, your phone does provide more metadata and your privacy rights tend to get infringed. So I guess it was time to change the views.

      Imagine if you're a serial rapist or mugger. And the police get a warrant and use the data from the different carriers and the cell towers in the area at the time of the crimes. They run this through a k-means clustering and determine that your phone is the only phone that was pinging all of the towers near the crime scenes. Now it would be one thing if all of the crimes happened within the same block and you happen to live on the block... but it would be another if you didn't live there... work there...

      Could they charge you solely on that data? Probably not, but you would move to the top of their suspect list.

      You should probably be more afraid of Google because they know way too much about you. Especially ig you have an Android phone.

  2. Duncan Macdonald Silver badge

    Use burner phones

    If you are going to do anything that the authorities do not like (from armed robbery to carrying a placard saying that Trump is an idiot) do not have your main phone on you. Just have a cheap burner phone that can make phone calls and do texts only. Dispose of the phone after the activity - do not use it for multiple activities. (As new basic mobile phones can be obtained from eBay for under £10 and a PAYG sim for under £10 at a place like Poundland this does not require a major investment.)

    (As far as Trump &co are concerned the placard carrier would be the more important criminal !!!)

  3. lglethal Silver badge
    Go

    What i do not understand...

    Why would the police take the risk of gathering this data and then having it thrown out by a judge later, when they could extremely easily just ask for a warrant from a judge in the first place. No judge is going to refuse a request along the lines of "We would like the tower dump for this day and this time, so that we can try and identify the possible robbers". So long as its for a specific time and place, it would be a reasonable search and every judge would allow it.

    It just kind of beggars belief that they would take that risk...

    1. Anonymous Coward
      Anonymous Coward

      Re: What i do not understand...

      Most likely they've been doing it for a long time, just usually it didn't find anything that they were forced to declare to the defence.

      It's very obvious that large parts of the US police believe that they "are" the law, and can do whatever they want. Because nobody has stopped them before. The bad apples have taken over many precincts - as the rest of the saying goes, the whole barrel is ruined.

      And now they've won, they can do it for every case, so they will.

  4. Anonymous Coward
    Anonymous Coward

    Just require a warrant

    It seems to me that the simple answer here would be to allow the police to perform these types of searches with a warrant. The police had a good enough idea what they were looking for and when and so should have been able to provide necessary and proportionality tests for such a warrant. There is already a good infrastructure in place for providing warrants for searches, and there was no urgency to this investigation (that we know of) that meant that a few days obtaining a warrant would have impacted the investigation.

    The value of requiring a warrant is it requires a (somewhat) independent and knowledgeable of the law person to give a second opinion on whether the data is necessary, proportionate and legal. It reduces the chances of the police carried away and "persuing the (people we think are) bad guys at all cots".

  5. MCMLXV

    Fourth Amendment

    Very interesting article, but this is a UK site. A wee bit of an explanation of what the Fourth Amendment is would have been handy. I had to look it up.

  6. a_yank_lurker Silver badge

    Context

    This case is the reverse of Carpenter. The plods had a phone number to check of someone who was at least a person of interest if not a suspect before getting the cell information. In Carpenter the cell dump gave the plods a suspect. It's a subtle distinction but that is how US shysters like to work, enough subtle distinctions to drive a normal, sane person to the looney bin permanently.

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