Federal court: 4th Amendment standard does not always apply to mobile phone location data

By Stephen C. Webster
Tuesday, September 7, 2010 18:50 EST

Law enforcement can still be required to obtain a search warrant for access to citizens’ mobile phone location data, but police need not uphold the traditional Fourth Amendment standard of “probable cause” in the process of such an investigation, a federal appeals court ruled Tuesday.

While civil liberties groups which argued in favor of stronger privacy protections largely called the ruling favorable, it still leaves room for law enforcement to continue large-scale mobile spying operations.

A friend-of-the-court brief [PDF link] in this case was given to the Third Circuit Federal Appeals Court on behalf of The American Civil Liberties Union, the ACLU of Pennsylvania, the Electronic Frontier Foundation (EFF) and the Center for Democracy and Technology (CDT).

The brief argued mobile phone users should not be subjected to a greater likelihood of government surveillance just by owning the device. Police all over the country have increasingly relied upon largely carte blanche access to mobile phone tracking data via web-based backend systems provided by major cellular carriers and third parties.

“Innocent Americans should not be made to feel the government is following them wherever they go – including in their own home,” ACLU attorney Catherine Crump said, in a media advisory. “While there’s no question that law enforcement agents should have the tools they need to stop crimes, such tools must be used in a manner that upholds the Constitution and personal privacy.”

As Newsweek reported in February:

“How many of the owners of the country’s 277 million cell phones even know that companies like AT&T, Verizon, and Sprint can track their devices in real time? Most ‘don’t have a clue,’ says privacy advocate James X. Dempsey. The tracking is possible because either the phones have tiny GPS units inside or each phone call is routed through towers that can be used to pinpoint a phone’s location to areas as small as a city block. This capability to trace ever more precise cell-phone locations has been spurred by a Federal Communications Commission rule designed to help police and other emergency officers during 911 calls. But the FBI and other law-enforcement outfits have been obtaining more and more records of cell-phone locations—without notifying the targets or getting judicial warrants establishing ‘probable cause,’ according to law-enforcement officials, court records, and telecommunication executives.”

However, in its decision, the court made a special exception to the Fourth Amendment for mobile phone tracking, saying that requests for location records “does not require the traditional probable cause determination”.

On page 25 of their decision [PDF link], the judges compare the case to United States v. Miller, where the Supreme Court decided that because banks were party to transactions, individual citizens’ financial records were fair game for warrantless searches.

They held that, in the same logic behind the availability of bank records, because mobile subscribers have shared their personal information with a third party, i.e., the phone service provider, constitutional protections effectively do not apply.

The Government argues that no CSLI can implicate constitutional protections because the subscriber has shared its information with a third party, i.e., the communications provider. For support, the Government cites United States v. Miller, 425 U.S. 435 (1976), in which the Supreme Court found that an
individual’s bank records were not protected by the Constitution because “all of the records [which are required to be kept pursuant to the Bank Secrecy Act,] pertain to transactions to which the bank was itself a party,” id. at 441 (internal quotation and citation omitted), and “[a]ll of the documents obtained, including financial statements and deposit slips, contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business,” id. at 442.

CNet added:

In this case, the Obama administration has argued that warrantless tracking is permissible because Americans enjoy no “reasonable expectation of privacy” in their–or at least their cell phones’–whereabouts. U.S. Department of Justice lawyers have said that “a customer’s Fourth Amendment rights are not violated when the phone company reveals to the government its own records” that show where a mobile device placed and received calls.

Though the court largely agreed with the administration’s argument, it also found that location data can be used by defendants to show they were in a private location that is protected by the Fourth Amendment.

The ruling effectively leaves it up to individual judges’ discretion as to how mobile tracking data is used and accessed by law enforcement.

“Although the court did not definitively rule on the Fourth Amendment status of cell phone location information, it made clear that under some circumstances the privacy of such data could be constitutionally protected, and that judges have the discretion to require a warrant to avoid potentially unconstitutional seizures of location data,” EFF attorney Kevin Bankston explained.

Stephen C. Webster

Stephen C. Webster is the senior editor of Raw Story, and is based out of Austin, Texas. He previously worked as the associate editor of The Lone Star Iconoclast in Crawford, Texas, where he covered state politics and the peace movement’s resurgence at the start of the Iraq war. Webster has also contributed to publications such as True/Slant, Austin Monthly, The Dallas Business Journal, The Dallas Morning News, Fort Worth Weekly, The News Connection and others. Follow him on Twitter at @StephenCWebster.

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Anonymous

One reason why I don’t use a cell or mobile phone. the 4th Amendment is getting more holes shot in it then there are in Swiss cheese.
Anonymous

Use an anonymous pre-paid phone. Metro PCS or Boost Mobile have cheap monthly pay as you go plans. You can sign up without having to give a real name or address.

Fuck the police state!
Anonymous

Or AT&T’s coverage.
Nickzane

Don’t worry the police state grid is coming and it will save us all…just like in Leon Mexico where they are putting retinal scanners everywhere and setting up retinal checkpoints. Civil libertarians need not worry because you can opt out of the system. Only criminals will be required to register. Yes it’s true they said you will be flagged as suspicious if you opt out of the program but that’s easily resolved. All you need to do is volunteer to be put on constant surveillance and accept being treated as guilty until proven innocent and they will more or less leave you alone. I mean what’s the big deal right? Who needs freedoms and civil liberties when we can have Big Brother carefully watching over our every step. I mean after all the government is always telling us the truth so we know by now we can trust them fully. And what makes this event in Leon Mexico so exciting is that the Multi-National Companies that sold this technology assure us that it will be worldwide in only 10 short years. I’m so excited…it will be just like Minority Report!!!

OK….I’m being incredibly sarcastic, but I hope you get the point.
Let’s demand that our Politicians uphold their oaths to the constitution and let them know we don’t support any crazed idea of a New International Order that diminishes or destroys our sovereignty.
Chip

Warrant? They don’t need no stinking warrant in the United Police States of America.
Anonymous

I think it’s time to broaden the definition justifiable self defense. We have a right to defend ourselves against overzealous law enforcement agents. Thus we have a right to destroy or confiscate their spy equipment if we have reasonable cause to believe it’s being used, or going to be used, to access our private information without warrant. If they attempt to prevent us from destroying or confiscating their equipment, we have a right to use reasonable force to assure success. This, it seems, is the only remedy possible for people who still treasure their Constitutional rights.
Bandit1414

we are becoming more and more like the soviet union we supposedly worked so hard to destroy
Bandit1414

we are becoming more and more like the soviet union we supposedly worked so hard to destroy
Anonymous

As of 1997 each American was shrouded in over one million laws. Think of how many there are now. Do you know them all? How much right and liberty do you think you have right now? Do you know all these laws? How can you when laws are sneaked into bills that have nothing to do with the bill itself. How can you when these bills are not read aloud on the senate floor so you can follow them. Talk about sucker punch.

One more thing: Obama is saying he will raise 50 billion for infrastructure by cutting out tax breaks for energy companies. That’s nice, Obama but you better MAKE SURE those companies are prevented from passing that onto the citizen consumers. STICK THAT IN YOUR BILL. Let’s see SOME thing for the citizens for once.
Anonymous

As of 1997 each American was shrouded in over one million laws. Think of how many there are now. Do you know them all? How much right and liberty do you think you have right now? Do you know all these laws? How can you when laws are sneaked into bills that have nothing to do with the bill itself. How can you when these bills are not read aloud on the senate floor so you can follow them. Talk about sucker punch.

One more thing: Obama is saying he will raise 50 billion for infrastructure by cutting out tax breaks for energy companies. That’s nice, Obama but you better MAKE SURE those companies are prevented from passing that onto the citizen consumers. STICK THAT IN YOUR BILL. Let’s see SOME thing for the citizens for once.
Anonymous

As of 1997 each American was shrouded in over one million laws. Think of how many there are now. Do you know them all? How much right and liberty do you think you have right now? Do you know all these laws? How can you when laws are sneaked into bills that have nothing to do with the bill itself. How can you when these bills are not read aloud on the senate floor so you can follow them. Talk about sucker punch.

One more thing: Obama is saying he will raise 50 billion for infrastructure by cutting out tax breaks for energy companies. That’s nice, Obama but you better MAKE SURE those companies are prevented from passing that onto the citizen consumers. STICK THAT IN YOUR BILL. Let’s see SOME thing for the citizens for once.
Anonymous

If they want to scan a retina, then they can scan my brown eye!!!
MrEthiopian

Simply remove the battery when you’re not using the phone and if you’re a criminal and you pullin a job, don’t play the fool and use your personal phone, go to radio shack or Wlamart and buy a disposable phone that can be burned at the end of your gig.

Our government will continue to steal our rights, what we need to do is rethink how and what technology we use daily and how that information could be used against us, this is something everyone online should think about.
http://profiles.yahoo.com/u/GCPX7DXZGK2H2CPNYRR5IS5A64 Turnip Mcgee

ACLU attorney Catherine Crump said, in a media advisory. “While there’s no question that law enforcement agents should have the tools they need to stop crimes, such tools. . .”

Pre-crime. Guilty until innocent. Installing the slave tracking system while the slaves salute the flag of a country long dead.
Anonymous

Where I go is part of my privacy. If they know where I go, they know who I associate with, what doctors I see, who I have relations with, and that is also part of my privacy. Next step is to say it doesn’t matter if they track your cell phone or track a bug they planted on your clothing or personal effects. Then they can say it is legal for the government to require everyone wear (or be implanted with) a tracking device. The more information they have, the easier it is for them to manufacture the missing false evidence to implicate you in a crime, to blackmail you, make you give up other rights, or just get rid of you.

This judge may see himself as a friend of law enforcement, but he is part of the problem and destroying civilization more than the criminals are.
Anonymous

More reason for civil war… A true constitutionalist would be wondering why you would even ask that. But the corporate WH0RES we have in office are just wondering how much of a profit the telecoms are going to make with the “information” contracts they’ll get. Fnckers!
http://profiles.yahoo.com/u/NWW26MNQ4PEDJHAURU4E6Q6AFY londonsbuck

So this is a great opportunity for people to make lead shield devices to put your cell phone in when you don’t want to be bothered (or to fly off the radar). I just don’t carry mine with me wherever I go but there’s opportunity for some good entrepreneurs to make some money off this ruling.
tonybinca

All I can say to this court is: FUCK YOU. The 4th amendment stands and your bullshit phony laws cannot change this.
jelyfish

Dan Carlin just did a podcast on this. It’s worth a listen dancarlin.com.
Anonymous

Should your GPS location be constitutionally protected? vote

http://www.youpolls.com/default.asp
michael2317

You’re rights are marching, one-by-one, away, away…

A Constitutional Scholar like Obama is no doubt very troubled by this. I expect him to take strong action immediately, right after monkeys fly out of my butt.
Anonymous

Another reason why the Supreme Court Justices need to be elected officials, and serve terms. Along with the the previous decision to allow Corporations to contribute money at will to electable campaigns, the U.S. Supreme Court is no longer an American institution. Soon they will ban Free Speech, and the search and seizure clause all together. America it is your right and your duty to stand up today, and say DOWN WITH THE SUPREME COURT AS IT STANDS!
http://profiles.yahoo.com/u/XZOZFUWR3YKJ25ZUAQQZWO7R6I SR

So remind me again, what was the point of our countrymen dying in all those wars?
Alekinga

Just make sure you buy refill minutes with cash from a store and refill via your phone. If you use plastic (e.g. refill online) – they can trace it back to you.
Anonymous

It is to defend the very Constitution we are dismantling one section at a time here at home.
JFranklin

The why is our call record data allowed to flow through Israel? See this Fox News series here that describes it. Because it is outside the jurisdiction of the US, there is nothing we can do about it other than inform everyone.
http://www.informationclearinghouse.info/article7544.htm
Anonymous

What difference does that make if the phone can still be tracked?
http://pulse.yahoo.com/_VOZY47GYH6WUEYDQDJKXQM25DY davis

I am sick and tired of Democrats pulling this horse shit. It’s obviously a violation. Neither party protects We the People. Jesus Christ, just put a radio tag in our GD ear.
Anonymous

Oh wow, thats downright scary when you think about it. Wow.

http://www.anonweb.at.tc
Anonymous

the continual erosion of our constitutional rights. Drip, drip, drip…
Anonymous

To make money for the rich.
Anonymous

federal court, my dear is dominated with republicans.

perhaps you will allow the fact to permeate your pea like brain.
Anonymous

Yeah, like our elected officials are just paragons of morals and ethics. :roll eyes:
Anonymous

Hyperbole much?

the soviets destroyed themselves, we were just willing participents.
DP

Quit your fucking winning you idiots……………..

There is a feature inall cell phones that allow you to turn off the GPS.
quincunx

People should be given an option to turn this thing on or off just like
with the “Cookie” setting, etc in a browser.
Hologram5

Being that I worked for T-mobile and verizon wireless I can tell you without a shadow of a doubt that you can turn off location transmission but you cannot turn off the GPS chip.
Anonymous

Elected officials at least have to look like they care about citizens rights. I’ll be the first one to admit that the system we have isn’t perfect, but it is what we have to live with. So how do you propose we deal with this failed system.
Anonymous

What you’re saying isn’t realistic. I’m replying to you because I use cookies, and you are commenting here because you use cookies. Without cookies, ‘logging in’ to any website is almost impossible (HTTP authentication just isn’t suitable for this kind of thing) Cookies are used for both good and bad purposes; distinguishing between the two is very difficult. Like cellphones.

Mobile phone location data clearly falls under 4th amendment protections. This, whatever it is, isn’t good news. Everybody is making excuses.
Anonymous

We’re boiling frogs.
Deb Downer

Cell phones, like cable TV are a waste of money. Make your employer buy you one if you need it for your job.
fahfahfah

But I like to win.
Anonymous

What bullshit! What are you trying to say? That there’s actually a partisan divide on this issue?! Have you payed any attention to any of Obama’s policies since his inauguration? It’s worse than Bush. WORSE!
Anonymous

Hmmm, this is the best comment I’ve read perhaps ever on this site. Yes, it’s dead.
Tactical Grace

Cell phones need an optional battery disconnect privacy switch.
Anonymous

Who expects privacy when they pass their communications through networks that belong to other people?

I’ve been suspecting wire taps since I was 7 years old.

If you pass it through a corporation, the government can get its hands on it.

Only a baboon would expect otherwise.
Catch

If you act like a bunch of sheep, then expect to be treated as such. If you don’t want to be tracked, then either buy a phone with no GPS, pull the battery when it’s not being used, or buy a non-GPS phone and turn it off. If you’re really paranoid, then get a Blackberry and use encryption. But do stop your whining. It’s your choice as to how you communicate.
http://pulse.yahoo.com/_3RNOJJZSOYBB23XU3YHCMAPC2M CaptBebops

GPS can be turned off on some phones (if not all) because it eats up battery life. GPS can be a true convenience that many don’t want to give up. Coarse location can also be determined by what cell towers are being used.
Azhermit

It’s time for the cone of silence… and the bat phone.
http://profiles.yahoo.com/u/42THFKXIPMJHQBIH6OPI4RVIDY Thebes

Wow, and yet most Raw Story readers are opposed to private ownership of AK47s???

Seems like we are 90% complete on our transformation to FASCIST DICTATORSHIP.

(if you have no problem with Obama knowing where you are all the time, what do you think about Palin one day having that power?)
EndTheNWO

This is just the beginning of the “official” end of the 4th Amendment. The Congress was bullied, blackmailed and bribed to endorse the “Patriot” act after the false flag 9/11 and Anthrax attacks. The next target, and the very last firewall, is the courts. If this succeeds then we can kiss our collective “free” asses goodbye. The most thuggish and dim witted will be empowered to subjugate, harass and spy on anyone whenever it suits them.
Anonymous

I see you’re a mindless tea party tool. Willing to believe the corporate media instead of thinking for yourself. So therefore there is no reasoning with you.

Have fun with your failin palin induced stupidity.

Ta!
michael2317

Another party shill denying reality to play party favorites.

How do you feel about Obama’s Justice Dept. challenging Miranda Rights?

You support his position regarding the expansion of Government eavesdropping without warrants?

Remember this?
http://www.rawstory.com/rs/2010/07/aclu-report-obama-core-liberties/#comment-65316901
Iguess not.

How about Obama’s admitted targeting of Americans for assassination without indictment or trial? You likey?

And what about the story you were just reading? No problem for you, I guess.

What does get your goat are those pesky folks pointing out inconvenient truths that get in the way of your delusions.
michael2317

Distraction much?

Anything to shift the conversation away from the less-than-pretty truth.
http://profiles.yahoo.com/u/GCPX7DXZGK2H2CPNYRR5IS5A64 Turnip Mcgee

.The most thuggish and dim witted will be empowered to subjugate, harass and spy on anyone whenever it suits them. ———

Have you been on a plane lately.? Stunningly dim witted.
All_R_watched

I believe the phone GPS functions can only be turned off that are related to consumer data use. I do not believe you can turn off GPS law enforcement tracking (no I don’t mean cell tower triangulation) though I am not certain of this.
All_R_watched

Confirmed by ==> Hologram5 Today 06:56 AM in reply to DP

Being that I worked for T-mobile and verizon wireless I can tell you without a shadow of a doubt that you can turn off location transmission but you cannot turn off the GPS chip.
http://profiles.yahoo.com/u/42THFKXIPMJHQBIH6OPI4RVIDY Thebes

If I paid for it I expect it. And I paid for the US Federal Government, which has usurped powers never granted to it.

Just because tyranny involves multiple parties does not mean it isn’t tyranny. And suspecting that you might be the victim of SPYING doesn’t make you a blasted BABOON for being pissed as hell when the court usurps the power to say they can indeed do it!
anonymon

This ruling is complete bull. This administration needs to be kicked the fuck out of office just like the last one, and the one before that, and the one before that, and….
Anonymous

Your reply doesn’t even make any sense.
Anonymous

Oh your so fucking concerned now, huh?

where the fuck were you during george w. morons* reign of stupidity?

your an ass. All the shit you stated started under little boots*

stop being a tool, it’s very unattractive.
http://www.personalpattern.com/2010/09/04/weekly-round-up-september-9-2010/ Weekly Round Up September 9 – 2010 | Personal Patterns

[...] Federal court: 4th Amendment standard does not always apply to mobile phone location data – Little by little. [...]
michael2317

I was right here, calling out one illegal, unconstitutional policy after another, and begging Democratic leaders to do something, anything about it. Where were you?

If I had my way, Vincent Bugliosi would be prosecuting Bush and Cheney for murder. He wrote a great book on how it should be done.

You see, you idiotic hypocrite, I despise lawlessness in government, regardless of which party is committing the crimes.

You have trouble with that I see, understanding it and all. I empathize with your mental handicap. You only notice crimes committed by “the other side.”

You are a fan, nothing more, filled with hatred for the opposition and blinded to your own”team’s” shortcomings and weaknesses. “Fan,” of course, being short for fanatic.

And I’d prefer it if you could ease off on the ugly language (if you know how to communicate without it), and actually address something I said if you choose to respond again. I asked you a few questions earlier, you could start by answering them.
michael2317

Are you playing dumb, or are you really that stupid?
Anonymous

LOL sucker!
Anonymous

do you enjoy being obtuse?

Reread what you wrote in response then get back to me.

Otherwise, take your meds it’s past your dosage time.
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Cell phones need an optional battery disconnect privacy switch.
http://ctdtoday.com/2010/09/04/weekly-round-up-september-9-2010/ Weekly Round Up September 9 – 2010 | Connect the Dots

[...] Federal court: 4th Amendment standard does not always apply to mobile phone location data – Little by little. [...]
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