[Vision2020] Big Brother: No Warrant Needed

[Art Deco]

  [image: The New York Times] <http://www.nytimes.com/>

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July 30, 2013
Warrantless Cellphone Tracking Is Upheld By SOMINI
SENGUPTA<http://topics.nytimes.com/top/reference/timestopics/people/s/somini_sengupta/index.html>

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 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 ruling is likely to intensify legislative efforts, already bubbling in
Congress and in the
states<http://bits.blogs.nytimes.com/2013/07/02/with-montanas-lead-states-may-demand-warrants-for-cellphone-data/>,
to consider measures to require warrants based on probable cause to obtain
cellphone location data.

The appeals court ruling sharply contrasts with a New Jersey State Supreme
Court opinion<http://www.nytimes.com/2013/07/19/nyregion/new-jersey-supreme-court-restricts-police-searches-of-phone-data.html?pagewanted=all>in
mid-July that said the police required a warrant to track a suspect’s
whereabouts in real time. That decision relied on the New Jersey
Constitution, whereas the ruling Tuesday in the Fifth Circuit was made on
the basis of the federal Constitution.

The Supreme Court has yet to weigh in on whether cellphone location data is
protected by the Constitution. The case, which was initially brought in
Texas, is not expected to go to the Supreme Court because it is “ex parte,”
or filed by only one party — in this case, the government.

But the case could renew calls for the highest court to look at the issue,
if another federal court rules differently on the same question. And two
other<http://www.aclu.org/blog/technology-and-liberty-national-security/aclu-challenges-67-days-warrantless-cell-phone>federal
cases involving this issue are pending.

“The opinion is clear that the government can access cell site records
without Fourth Amendment oversight,” said Orin Kerr, a constitutional law
scholar at George Washington University Law School who filed an amicus
brief<http://www.volokh.com/wp-content/uploads/2012/02/Kerr-Amicus-No-11-20884.pdf>in
the case.

For now, the ruling sets an important precedent: It allows law enforcement
officials in the Fifth Circuit to chronicle the whereabouts of an American
with a court order that falls short of a search warrant based on probable
cause.

“This decision is a big deal,” said Catherine Crump, a lawyer with the
American Civil Liberties Union. “It’s a big deal and a big blow to
Americans’ privacy rights.”

The group reviewed
records<http://www.nytimes.com/2012/04/01/us/police-tracking-of-cellphones-raises-privacy-fears.html?pagewanted=all>from
more than 200 local police departments last year, concluding that the
demand for cellphone location data had led some cellphone companies to
develop “surveillance fees” to enable police to track suspects.

In reaching its decision on Tuesday, the federal appeals court went on to
agree with the government’s contention that consumers knowingly give up
their location information to the telecommunications carrier every time
they make a call or send a text message on their cellphones.

“That means it is not protected by Fourth Amendment when the government
goes to a third-party service provider and issues something that is not a
warrant to demand production of those records,” said Mark Eckenwiler, a
former Justice Department lawyer who worked on the case and is now with the
Washington law firm Perkins Coie. “On this kind of historical cell site
information, this is the first one to address the core constitutional
question.”

Historical location data is crucial to law enforcement officials. Mr.
Eckenwiler offered the example of drug investigations: A cellphone carrier
can establish where a suspect met his supplier and how often he returned to
a particular location. Likewise, location data can be vital in establishing
people’s habits and preferences, including whether they worship at a church
or mosque or whether they are present at a political protest, which is why,
civil liberties advocates say, it should be accorded the highest privileges
of privacy protection.

The decision could also bear implications for other government efforts to
collect vast amounts of so-called metadata, under the argument that it
constitutes “business records,” as in the National Security Agency’s
collection of Verizon phone records for millions of Americans.

“It provides support for the government’s view that that procedure is
constitutional, obtaining Verizon call records, because it holds that
records are business records,” said Mr. Kerr, of George Washington
University. “It doesn’t make it a slam dunk but it makes a good case for
the government to argue that position.”

An important element in Tuesday’s ruling is the court’s presumption of what
consumers should know about the way cellphone technology works. “A cell
service subscriber, like a telephone user, understands that his cellphone
must send a signal to a nearby cell tower in order to wirelessly connect
his call,” the court ruled, going on to note that “contractual terms of
service and providers’ privacy policies expressly state that a provider
uses a subscriber’s location information to route his cellphone calls.”

In any event, the court added, the use of cellphones “is entirely
voluntary.”

The ruling also gave a nod to the way in which fast-moving technological
advances have challenged age-old laws on privacy. Consumers today may want
privacy over location records, the court acknowledged: “But the recourse
for these desires is in the market or the political process: in demanding
that service providers do away with such records (or anonymize them) or in
lobbying elected representatives to enact statutory protections.”

Cellphone privacy measures have been proposed in the Senate and House that
would require law enforcement agents to obtain search warrants before
prying open location records. Montana recently became the first state to
require a warrant for location data. Maine soon followed. California passed
a similar measure last year but Gov. Jerry Brown, a Democrat, vetoed it,
saying it did not strike what he called the right balance between the
demands of civil libertarians and the police.

-- 
Art Deco (Wayne A. Fox)
art.deco.studios at gmail.com
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