Probable Cause

by emptywheel

I can't say I'm surprised by this news--that some courts are approving government use of cell phone GPS data without first requiring the government to demonstrate probable cause.

Federal officials are routinely asking courts to order cellphone companies to furnish real-time tracking data so they can pinpoint the whereabouts of drug traffickers, fugitives and other criminal suspects, according to judges and industry lawyers.

In some cases, judges have granted the requests without requiring the government to demonstrate that there is probable cause to believe that a crime is taking place or that the inquiry will yield evidence of a crime. Privacy advocates fear such a practice may expose average Americans to a new level of government scrutiny of their daily lives.

But I invite you to consider the implications of this legal logic:

And in December 2005, Magistrate Judge Gabriel W. Gorenstein of the Southern District of New York, approving a request for cell-site data, wrote that because the government did not install the "tracking device" and the user chose to carry the phone and permit transmission of its information to a carrier, no warrant was needed.

Let's see. It looks like this:

Gov't did not install tracking device >  User chose to use cell phone with tracking device > No need for the government to get a warrant to ask the telecom company for data on the tracking device

That looks frighteningly like this logic:

Gov't did not install telecommunications fiber > User chose to use telecommunications fiber to make a call/send an email > No need for the government to get a warrant to ask the telecom company for data on the private citizen's use of the telecom fiber

It's the same logic Donald Kerr, Principal Deputy National Intelligence Director uses when he says we shouldn't expect anonymity anymore--that we sacrifice all of that when we avail ourselves of neat telecommunications or Toobz tools.

Update: LHP sent this link along, which provides much further detail on this. The short story: a number of the government's requests for cell phone location have been rejected, but the government never has those decisions reviewed, thereby leaving the whole thing in legal neverland.

Almost all of these cases have another similarity. In each case, the magistrate judge issuing the opinion denying the government's request has invited the government to seek review of the denial so that the magistrate judges will have guidance as they continue to encounter this issue. The government has not yet seen fit to seek review of any of these cases. As the government appears ex parte in each case, and the individual never even knows he is being tracked, there is no one else to seek review. Thus, the government seems willing, and able, to deprive the courts of any higher level guidance of the required showing it must make to receive the cell location information it seeks.

Comments

[Ishmael]

I'm glad you made this point EW - the same argument can be made to justify listening in on cell phone conversations due to the fact that they are not confined to a hard wire connection, and therefore are no different than walkie-talkie chatter. The appropriate test should be whether there is a reasonable expectation of privacy in the communication, not the technology that is used to deliver the message. If (in theory) all I need to do to protect my written communications from govt snoopers is to put the message in an envelope when it goes through the mail, why can I not put a "virtual" envelope on my emails that provides the same protections? And no, the fact that one has a postage stamp on it and the other does not shouldnt make a difference - I dont think that one should have to pay a toll for privacy, although I am tempted sometimes to leap at such an offer.

[P J Evans]

Well, by that logic, shouldn't we be able to find out anything the government is doing 'in our names'? Because they're using non-government-installed telecommunications lines, and cellphones and whatnot with locators, to communicate, aren't they?

(Ticked off that that display of lunacy, illogic, and general disregard for the 4th amendment and the rights of everyone not in the government.)

[OldCoastie]

scary...!

[Mary]

It looks a lot like that logic, but for the interposition of legislation that requires the warrant or AG certification and we already know that, whatever the AG was signing off on (and didn't sign off on for a period of time) it wasn't a statutory certification. This is partly why some attacking tehprogram want to focus on the legislative aspects v. the fourth amendment aspects, though.

OT - but Rove begins his "new"sweek punditry career by fibbing on Charlie Rose:
http://thinkprogress.org/2007/11/22/rove-lies-iraq-war-vote/

ThinkP also has a piece up on Gibson saying that the WH, maybe Rove specifically, needs some kind of medal for outing Valerie Plame.

[looseheadprop]

I sure hope that defendant has competent private counsel or one of my heroes at teh Federal Defender Unit at Legal Aid (every decent prosecutor I have ever met admires that bunch)

Methinks hte Magistrates sickeningly flawed reason will leave that case with a fruit of the poisonous tree probelm. This case is screaming for an appeal.

BTW, note to all you non-criminals out there--and this shows just how freakin silly this is--all you have to do to avoid detection, is take the battery out of you cellphone when ever you want to disappear off hte grid.

This is bullshit. Any bad guy worth his salt already knows this. It's only innocent civilian who don't.

Which is why the gov't should need proabably cause. Duh!

[bmaz]

Of course this is bogus and unconstitutional; but who didn't think this was exactly what was going to result from the implementation by the FCC of the more stringent E911 rules and requested the networks to build their new systems with hardware making government surveillance easier?

[janinsanfran]

Eventually we'll just invite some corporation to install RFIDs in our kids at birth (so we don't lose them while shopping perhaps) and this work around will be unneeded.

[Mary]

innocent civilian

This is how good the Bush DOJ has been at imposing a military theme on the administration's relationship with Americans. We tend to respond in terms of soldiers v. civilians, GWOT framing.

Horton has a "Star Chamber" piece up at his blog, and he doesn't even begin to touch on all the highlights.

[Semanticleo]

Many cell phones have the 'Tools' option of blocking the tracking feature.

[emptypockets]

I don't really get this.

Does the executive branch generally require a court order to order a private company to perform some action? Or can the Department of Justice order any company to perform any action? (And if so, wouldn't that save a lot on contracting costs?)

Under this ruling, is a court order still required for the executive branch to give orders to telecoms or other companies? If so, what is the basis of the court order supposed to be? (Surely it makes no sense to require a court order if the court is not actually making a judgment about the legitimacy of the request?)

[bmaz]

"Many cell phones have the 'Tools' option of blocking the tracking feature."

Sorry, that does not "turn off" the tracking being described here. If your cell phone is powered, i.e. there is a battery installed or an AC adapter connected, it is trrackable at the request of the government.

[JohnJ]

The government DID mandate the GPS's in our phones through the FCC. Granted that the FCC is now a wholly owned corporate agency (i.e. Powell Jr.).

How can they claim they didn't install it in our phones? This is a phony (NPI) argument.

The part that most people don't get is that every romantic interest or annoyance to any Police Officer will be tracked. Ask any woman who dated a cop and tried to end it. Argue with a cop (and worse WIN) and your every movement will be watched.

Does everyone really want to answer for why they spent 20 minutes in that bathroom stall that a suspected drug dealer used before you?

[Boo Radley]

OfT, and only if any one wants to speculate. Where are the Trial Lawyer Associations? Where are the local, state, and national bars? Are they having trouble getting traction with the MSM? What's the point of being an "officer of the court," if anything the government says is admissable? It seems to me that a lot of constituencies, the NAACP, the Unions, Academics, U.S. businesses that export, could join forces with attorneys and progressives to fight this?

[JohnJ]

Both of my parents were ex-FBI; my mother worked directly for J.E.Hoover. They both drilled into me that privacy laws only keep the government from using what they did IN COURT.

Cheney is an amateur compared to Hoover, and Hoover had to actually get someone to physically connect to the wires of your phone.

BTW, my mother's job was to listen into every one of Hoovers conversations so he had proof that he didn't actually use the words that constituted blackmail.

[Boo Radley]

Sorry, lhp, I should have read your terrific post over at FDL before asking my question Our Lady of the Law

[Boston1775]

EW, I contacted Charlie Savage to keep these points in mind:
1. For those of us who chose to live in areas which have allowed mosques to be built, we seem to have lost the right to privacy. Especially if a leader or members of the mosque have been declared as connected to terrorist operations. I, of course, would have no idea if the charges have merit.

2. Once the local police and federal agents are empowered to use whatever means necessary to track and listen to suspects, the rest of the area may be spied upon as well.

3. Now that there is apparent permission to follow suspected drug dealers without a warrant, how many small town teen agers are declared fair game?

4. The War on Terrah and The War on Drugs give police unprecedented powers.

[radiofreewill]

Brava! Brava! Excellent use of a ninja-star argument to tack the shadowy bastards to the tree of clear-seeing!

Interpretations and enablements that legitimize warrantless invasions of our Personal Citizen-Space, lacking Probable Cause, and lacking Privacy Concerns, as well, would seem to reflect a new, lower, threshold of threat-determination - Suspicion.

Suspicion, perhaps, that 'enemies' are amongst the general population of US Citizens - not just non-Citizen 'enemies,' but 'enemy' Citizens. Since all Citizens in America are theoretically equal, what might constitute the standard for discrimination?

Doesn't it have to be Ideology? Aren't you either 'with us or against us?' on the basis of professed beliefs? If you're 'with us' then you will 'think right, talk right and act right' in accordance with 'our' beliefs. And, if you can't get it 'right,' then you Must Be 'one of them.'

Isn't that at least part of the Truth of what EW is pointing at? Our eyes are showing US that Our Citizenship is, more routinely with each passing day, being 'qualified' with warrantless 'threat assessments' of how We think, talk and act.

Is that the America of Our Founders anymore if Our Freedom as Citizens is limited to the confines of Ideologically-approved, and involuntarily checked, thoughts, words and deeds?

[sng]

RFIDs. The location thing can be used to tell you who is having a sale near where you are walking or on the interstate like mile markers.

The real time cell site tracker thing probjably isn't really needed. A GPS chip doens't need a warrant. It can be precise, cell sites can't. The GPS data could be used to retail.

All the Code DMA phones are encoded, but this was broken the day after the phones went into service by a foreign intelligence service, Mossad. Encoding more than what is is a waste of money.

[JohnLopresti]

It goes beyond FCC though FCC was waiting in the wings to implement, and when Powell Jr was at FCC's helm one of the final rollout dates passed for cellphone mandatory GPS as well as Hepting mirror bitstreams. From the beginning of the recent controversy in the antiterrorism tumult, for me the issue was the lost argument in congress, as there were many foresighted elected representatives of the people trying to prevent these prongs of the surveillance society from passing. Many were the industry excuses, but there were numerous years of Republican majority to clinch the half-hearted debates which Democrats variously saw as acceptably invasive legislation. While I agree the presumtion of guilt of who knows what civil infraction based on some gendarme's say-so is patently beyond illicit, and restraints likely will develop to prevent that degree of abuse, there has been a court trend as in the Hudson case, which was decided at the Supreme Court within the past year, but which had particularized and credible facts supporting the illegal behavior of the gendarmes, but which case was optimized by the factions interested in ending lots of bill of rights privacy guarantees as a way to prosecute lower castes. In other words, Congress could clarify the bounds it might like to restore, but both recent jurisprudence and congressional record show trends of official disregard for the bill of rights in our times in privacy matters.

[victoria2dc]

Off topic: Marcy I hope you read this!

I just commented and plugged you and your book at this WaPo URL. If you have time to go there and do some truth telling, please do!

http://www.washingtonpost.com/wp-srv/community/groups/index.html?plckForumPage=ForumDiscussion&plckDiscussionId=Cat:a70e3396-6663-4a8d-ba19-e44939d3c44fForum:118311bf-3643-438e-bc41-c9fdc29ce4aeDiscussion:8771e775-02bd-4e44-9c7a-c58bcf8afa6e&plckCurrentPage=0

[emptywheel]

Boston

Funny. A friend and I were just talking last night about how her cell coverage craps out everytime she gets within a certain distance of a big mosque outside of Toledo. So, yeah.

[johno]

FYI, cell phones without GPS can be tracked using “triangulation” from multiple cell base stations. There was a story a while back about how the FBI was bugging mobsters by downloading special software to their cell phones that would transmit their conversations when they thought their phones were off. The only way to absolutely prevent any of this is to remove the phone’s battery (or, seriously, wrap the phone in tin foil).

[whitewidow]

this was my favorite part

Justice Department officials said to the best of their knowledge, agents are obtaining court approval unless the carriers provide the data voluntarily.

[bmaz]

Whitewidow - Yes, that was particularly reassuring wasn't it? Freaking amazing.

[nolo]

just one other category, here:

i assume that, as i wom't, bmaz, EW,
lhp, and the rest here assembled
will never have "OnStar" in their
cars -- what a crock that "service"
big brother device is! -- of course,
it is only my ASSUMPTION that they
let law enforcement "in", even BEFORE
an OnStar "customer" asks for help. . .

but i bet i'm right -- i bet gov't.
agents regularly follow OnStar data
streams without warrants, probable cause,
or even articuable suspicions. . .

now, keep it safe, out there.

p e a c e