Monday, October 01, 2012

5th Circuit to decide whether police can get cell phone tracking records without warrant

TechHive on Saturday published an effective preview of an important case before the 5th Circuit Court of Appeals to determine whether law enforcement can obtain cell phone tracking data from service providers without a warrant:
The U.S. government will be taking a second crack Tuesday at overturning a lower court ruling that's preventing police from obtaining cell phone location records from two wireless carriers without a search warrant.

Now before the U.S. Court of Appeals in New Orleans, the government's attempt to obtain 60 days of records from the carriers as part of a "routine" law enforcement investigation was previously rebuffed by a magistrate judge in a federal district court in Texas.

The Texas judge ruled that a warrant was necessary to obtain the information because the data was protected by the Fourth Amendment to the U.S. Constitution, which protects an individual's privacy.
In papers filed with the appeals court, the government is arguing that the Fourth Amendment doesn't apply to location records archived by carriers because they are business records.

The courts have ruled that business records are subject to something called "the third-party doctrine." That doctrine excludes from Fourth Amendment protections records that an individual has neither ownership nor possession of.

In addition, the government is arguing consumers should not have a "reasonable expectation" that their carriers will keep records containing location information private. "Reasonable expectation" is one of the measures established by the courts to determine if Fourth Amendment rights can be asserted by a person.
Orin Kerr at the Volokh Conspiracy has been arguing vociferously, and at length, that the magistrate judge whose ruling is being appealed had no authority to prevent law enforcement from acquiring such data, insisting that he could not do so until law enforcement actually abused the information. Scott Greenfield posted an effective rebuttal to Kerr's argument, and Orin posted links to several amici briefs, including three which argue in favor of affirming the magistrate's order.

IMO, if the courts don't forbid police from accessing this data without a warrant, Congress and/or state legislatures should do so.

4 comments:

Anonymous said...

Customers don't have a reasonable expectation of privacy about anything anymore. The general population doesn't follow court cases but knows some silly little law is not going to stop our criminal government and criminal corporations from accessing their cell phone records.

Anonymous said...

We truly live in a police state. Consider a recent civil (non-criminal) federal court case in Texas. In this case, the judge and his friends threatened the litigant (the "victim") with "death" and seized all of his possessions, without any notice or hearing, prohibited him from hiring a lawyer, and essentially into a bizarre civil lockdown. The litigant has been under this civil lockdown order for nearly two years, and is prohibited from having a lawyer, from owning any possessions, from freely traveling, from working, etc… The judge redistributed the litigants property to the judge's friends.

http://LawInjustice.com/ has details about this disturbing case and some quotes from the judge:

THE COURT: "I'm telling you don't screw with me. You are a fool, a fool, a fool, a fool to screw with a federal judge, and if you don't understand that, I can make you understand it. I have the force of the Navy, Army, Marines and Navy behind me."

THE COURT: "You realize that order is an order of the Court. So any failure to comply with that order is contempt, punishable by lots of dollars, punishable by possible jail, death"

It' hard to believe, but this really is true

Cronyism is the most insidious form of corruption and is widespread. Consider a recent civil (non-criminal) federal court case in Texas. In this case, the judge and his friends threatened the litigant (the "victim") with "death" and seized, without any notice or hearing, prohibited him from hiring a lawyer, and essentially into a bizarre civil lockdown. The litigant has been under this civil lockdown order for nearly two years, and is prohibited from having a lawyer, from owning any possessions, from freely traveling, from working, etc… The judge redistributed the litigants property to the judge's friends.

http://LawInjustice.com/ has details about this disturbing case and some quotes from the judge:

THE COURT: "I'm telling you don't screw with me. You are a fool, a fool, a fool, a fool to screw with a federal judge, and if you don't understand that, I can make you understand it. I have the force of the Navy, Army, Marines and Navy behind me."

THE COURT: "You realize that order is an order of the Court. So any failure to comply with that order is contempt, punishable by lots of dollars, punishable by possible jail, death"

It' hard to believe, but this really is true

Anonymous said...

Back when I was a paleo-conservative I thought that law enforcement could do no wrong--they were forthright and honest, I could not see any problem with giving them any and all information, warrant or no.

The scales have fallen from my eyes.

Folks need to wake up to their freedoms being trampled into the sod and "arise and take our stand for freedom as in the olden time." (Churchill)

Anonymous said...

The scales have fallen from my eyes as well, 8:44. I am more frightened of the law than of criminals. Thinking that law enforcement doesn't already take matters into their own hands and tap phones, check locations, etc. is ignorant. Even kids know to be frightened of uniformed law enforcement now.