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

[earlofhuntingdon]

JohnJ, exactly right. Post-9/11, the federal government mandated installation of GPS gear in newly manufactured and sold mobile phones. Purportedly to implement a nationwide 911 system, the purpose was undeniably national security related, though it had the effect of helping emergency services locate callers.

Telcos - under intense pressure to turn over the cell phone "parc", so that all phones in use were GPS capable - came up with a variety of marketing schemes to get people to "upgrade" to fresh, new, improved phones that were trackable. (Yes, triangulation is possible, but more trouble and not as fast or accurate.)

The GPS data is presumably the "property" of the carrier. As identifiably personal information, the government should need probable cause to obtain it from a telco. Viewed over time, the data discloses precise place and time information for the phone, and the target who's presumably carrying it.

Though I'm sure even the FBI has figured out that pay for use (rather than contract customers) can purchase simple phones without revealing accurate customer data. Anyone reasonably intelligent and bent on chaos could simply buy a series of these and change them out routinely, or use stolen cell phones for short periods, etc. The schemes are endless for the criminally inclined. Hence, the methodology is most useful against ordinary citizens. Just like tapping into country-wide e-mail data.

Who says Total Information Awareness was ever abandoned? The usual Bush line of "Just trust me", or the Ed Meese line that the police or security forces never arrest someone who isn't guilty requires us to assume that all presidents are as inclined towards personal power as Jimmy Carter and that a Dick Cheney would never win election to the Oval Office.

[Boston1775]

EW - I want this storyline covered so much. Being in a community which peacefully shelters many faiths and cultures should not be reason to be spied on. Now that the War on Terrah can pair up with the War on Drugs, almost anyone can fall into earshot, camerashot, GPSshot of a "suspect".

As far as cellphone reception goes - don't even get me started. It's uncanny.

[nolo]

okay -- i couldn't help myself -- i went
off and googled "OnStar" -- check that
company's LATEST new "service":

". . .The process for Stolen Vehicle Slowdown is:

Once the vehicle has been reported stolen to law enforcement [or once the government decides it WANTS to], the subscriber can call OnStar and request Stolen Vehicle Location Assistance. OnStar will confirm the subscriber has not opted out of the Stolen Vehicle Slowdown service [and that the government still wants anything it wants!].

OnStar will use real-time GPS technology to attempt to pinpoint the exact location of the stolen vehicle and provide this information to law enforcement to help them recover the vehicle.

When law enforcement has established a clear line of sight of the stolen vehicle, law enforcement may request OnStar to slow it down remotely.

Safeguards will be in place to ensure that the correct vehicle is slowed down.

OnStar then sends a remote signal to the vehicle that interacts with the Powertrain system to reduce engine power which will slow the vehicle down gradually.

Research has shown that 95 percent of [government snoops!] OnStar subscribers want the Stolen Vehicle Slowdown service available on cars and trucks. . . ."

ep -- that's something i'd PAY for! NOT.

[emptywheel]

As far as OnStar, suffice to say that mr. EW calls me "OnSpouse" because that's what we use. And I just bought a new car without, so I expect to avoid it at least for the next 15 years.

[P J Evans]

How accurate are the GPS units is cell phones? The telecoms are only claiming 50-100 meters (call it half to one block).

[bmaz]

nolo - Of course I don't have On-Star; are you nuts> Heh heh. I had been continuing to use an old Motorola V-60 and a similar Samsung cell phone for years until they literally fell apart for this exact reason. The relentless pressure put on me to "upgrade" was astonishing and they literally refused to even discuss servicing the phone if I had a problem (antenna issue I managed to fix myself). Back when I was doing almost exclusively criminal defense and representing civil rights plaintiffs against the government (usually police misconduct cases), this stuff would have been very problematic for me. It really isn't anymore; but it is still a matter of principle. It is mind numbing when you add it all up all the modalities of privacy invasion arrayed against the citizenry.

[bmaz]

PJ - My understanding is, on the newer GPS chipped handsets, within 10 yards; depending on other physical things like location, obstructions, number of cell towers in the vicinity etc.

[earlofhuntingdon]

My information, too, is that routine cell phone GPS data is accurate to within 3m, ten feet. I believe that's in three dimensional space. The government, as opposed to the telcos, may be able to locate the phone to within 1m.

OnStar and its ilk are indeed capable of widespread misuse. Anyone who has it should reread their contracts regarding commercial use of customer identifiable information. Virtually no limits.

As a related matter, most new cars also have onboard computers that record Vehicle Operation as well as engine performance. Combined with GPS, this can reveal vehicle speed and compass direction; and the timing, manner and frequency of changes in pedal (breaks, accelerator) and steering and road wheel position.

Who.Owns.That.Data? The answer is being quietly fought out, with little public involvement.

Manufacturers want it for "marketing and warranty/repair" purposes. Auto insurance companies want it to dis-/prove fault in accidents. Life insurance companies want it because their policies include exceptions not just for suicide, but for things like death while committing a felony. Those would include certain traffic related crimes. As the King of Siam was reputed to have said, "Et cetera, et cetera, et cetera."

[Ishmael]

I have had clients who have preferred to do 6 months in the joint, as opposed to 2 years with ankle bracelets or house arrest, because they don't want to be tracked by the government for a lonog period of time, for reasons good and bad. How ironic is it that this kind of stealth monitoring through everyday technology is being accepted by the public at large, which would not be accepted by convicted criminals.

[harag]

Using the same logic... The government didn't install locks on your house, the manufacturer/installer did. But government did buy a key from the manufacturer/installer that could open your house.

Government therefore can open your lock and look around.

Perfectly legal?

[Jodi]

A little bit on the technical side of the phones.

GPS tracking and cell phone tower tracking are two different things.

The customer can cut off the GPS tracking on their phone, or on every phone I have heard about. (Yes there would be ways (software, and hardware) to stop the customer from doing that, or from even knowing if it is on or off.) Typically it can be from 33 feet to 16 feet, to 10 feet to 3 feet depending on the equipment, the number of GPS satellite channels, etc.

Cell phone tower tracking is where the signal from your phone is picked up by nearby towers, and a correlation is made as to where you are in a certain area. One tower will locate you within a circle of miles from its location depending on the type of cell phone, ie. digital, analog, GSM, TDMA, CDMA, Iden, PCS, etc. Of course there are ways to enhance antennas and power of transmission, but we won't look at these. Usually we can expect reasonable reception 5 to 8 miles radius max from the tower, but it is also terrain, building, and interference dependent. Add more towers, and they are looking at overlaps and relative tower strengh, and they can tell if you are to one side or the other of the towers. This can be made even more accurate if you are moving (traveling) as opposed to sitting still, and if you can be located as to a highway for example.

It is not correct that you have to take out your phone battery to take your phone out of the tower or gps locating systems. Simply cutting the phone off will do it just as well. That assumes that there isn't a device secretly implanted in your phone that can use your battery even if the phone is cut off.

[yellowdog jim]

local law enforcement using data-mining of city-owned electric utility
APD Pot-Hunters Are Data-Mining at AE

According to Austin Energy spokesman Ed Clark, there isn't anything illegal or improper in the way the AE data has been used by APD. "Yes, it's legal," he says, "because we wouldn't do something that's illegal." He notes that federal courts have ruled that even where utility data is the "initial impetus" for an investigation, there is no invasion of an individual's privacy. UT Law professor George Dix says that under exist­ing law, when third parties (such as AE) maintain customer records, such as utility account information, consumers do not generally retain "any privacy interest" in the information.

However, he said, the question of whether such data by itself is enough to support probable cause for a search warrant is an entirely different matter.

so don't use too much electricity.

heh, heh

[bmaz]

Yellowdog Jim - That is exactly right. I had a client busted because the sheriffs were flying around in their helicopter using infrared and discerned that there was an unusual amount of light/heat regularly at all hours of the night in the same area of his house; they then checked the utility records and found abnormal electricity usage. Turns out the jackass sheriffs that decided to work this genius case up had to go through four different magistrates to find one lame enough to sign off on the search warrant. We finally got the case dismissed after a long struggle. That was mid to late 90s, I don't know how it would play out today, probably not well.

[Mary]

A bit OT, but maybe not too much.

David Cole and Jules Lobel do an op ed piece in a way that an ADD American Public can absorb:

http://www.latimes.com/media/acrobat/2007-11/33860990.pdf

[JHGH]

It's not illegal to locate a GPS chip.

It is not illegal to listen to a radio.

It is illegal to listen to a land line.

[bmaz]

JHGH - That is such a gross generalization and simplification of a complex area of law that it is effectively misleading disinformation.

Jodi - I don't personally know, so I can't say you are wrong; but my understanding, from people that should know what they are talking about on the technical end of it (professionals at Verizon and Nextel I talked to in setting up my former company's system to monitor their employees) state unequivocally that, despite what consumers are led to believe, the "settings" or "tools" ability to shut the GPS function off really doesn't for any law enforcement of emergency purposes. It only stops the little tracking features like people use to locate their kids or employers their employees; so I think you are wrong here. I am less certain on what the status is when the phone has the power shut off; but I know for a fact that even if this is generally true, cell phones can be altered (and remotely I think) by the carrier to where this is definitely not the case. This was actually disclosed in one of the big crime cases (might have been a Gotti case; can't remember).

[Mary]

It's not illegal for a carrier to locate a GPS chip to provide services a customer is requesting.

That's a very different thing than having a customer pay a carrier to provide services to the government which the customer did not request and to which the customer would likely object.

Part of what gets me is that, in true Rovian fashion, gov is making citizens pay for the gov/corporate collusion to violate those citizen's rights.

In any event, on a more serious vein, two areas struck me when I read the article.

The first is, of course, the ongoing secrecy issues.

The requests and orders are sealed at the government's request, so it is difficult to know how often the orders are issued or denied.

Well, we do know that
federal magistrate judges in at least 17 cases have denied federal requests for the less-precise cellphone tracking data absent a demonstration of probable cause that a crime is being committed. Some went out of their way to issue published opinions in these otherwise sealed cases.

And yet, those 17 cases aside, we also know that judges in a majority of districts have ruled otherwise on this issue, Boyd said.

So the battle is being lost already and lost behind closed doors.

The second is the creation of this nifty new standard:

"specific and articulable facts" showing reasonable grounds to believe the data are "relevant to an ongoing criminal investigation,"

Hi, I'm specifically articulating that I'm Joe Friday and that there are bad guys out there and that some of them carry cell phones and that I personally think its reasonable to believe they use them when they are criming. So if I am investigating someone from criming, but can't show probable cause that they are even criming, much less that they use their phone for criming, I've still articulated my specific facts that lets the government track movements and locations of not only the person being investigated (for whom we have no probable cause that they involved in a crime at all, much less using their phone for that crime) but also OTHER people who they call or who call them. As long as Karl Rove or Leura Canary told me to investigate someone, the names you are about to not hear will be kept in secret files, never required to be expunged, and used for whatever purpose we want. Including letting FBI agents turn over info to their pals in the Mafia for housekeeping. Not that those kinds of things ever happen, with the fine, pro-torture, hate that damn Constitution, lovesmesomemoney and a GWB crotchlevel handshake, folk we have populating the administraton.

Anyway, it's a very sloppy standard imo, if that's really what they are using. And all the pinging isn't real reassuring either:

"Law enforcement routinely now requests carriers to continuously 'ping' wireless devices of suspects to locate them when a call is not being made . . . so law enforcement can triangulate the precise location of a device and [seek] the location of all associates communicating with a target," wrote Christopher Guttman-McCabe, vice president of regulatory affairs for CTIA -- the Wireless Association, in a July comment to the Federal Communications Commission.

So based on no probable cause, and an articulation that someone gave about someone ELSE, your location and calls get tracked and triangulated.

I'm just trying to imagine how they staff these jobs. Some job skills test that lets you know you would succeed either working for DOJ, NSA, al-Qaeda or as a professional pervert, but that Hustler and the National Enquirer would have to turn you down bc your scores on the creepiness scale would, frankly, freak them out?

[freepatriot]

italics off ???

[freepatriot]

nope

[MrX]

w.r.t. GPS positioning accuracy -

Unless you are serious about correcting for various sources of error, the accuracy you can hope for with standard GPS equipment is in the order of 15 metres. This may apply to cellphones.

If you need best available accuracy, post-processing of received signals can improve positions to within 2-5 metres. I'll wager a cold beer that ordinary cellphones aren't recording and reprocessing the GPS signals. CIA/FBI/CTU issue cellphones might be a different kettle of fish. =-)

Tracking of vehicles and cellphones is a service available to the general public. You can track your kids/spouse's cellphones and vehicles. I.e. this capability isn't limited to the government or OnStar.

[freepatriot]

uhm, speaking for the criminals that were mentioned in the original post, most of us just don't use cell phones to begin with

at least, us SUCCESSFUL criminals don't use cell phones

(wink)

[bmaz]

Mary - Far as I can discern, this gobbledygook "specific and articulable facts" showing reasonable grounds to believe the data are "relevant to an ongoing criminal investigation" is simply what has forever been known simply as "reasonable suspicion" and is most famously associated with the case of Terry v. Ohio, 392 U.S. 1 (1968) promulgating the right of cops to do a safety pat down or "frisk". The ground rules for invasion under this standard have always been "the most limited intrusion feasible" and it has NEVER been sufficient for 4th Amendment search and seizures. Not saying it hasn't been done, but I don't think I have ever heard of it being applied to an invasion of which the individual was unaware. It is always applied only to direct things like the limited frisk, or simple questions that the subject is not mandated to answer etc.

[Mary]

What I think is really interesting is that they would use a Terry test approach to not just get location info on the suspected, but not "probable cause" sufficient target (perhaps we could settle on calling them an improbable target?), but also those communicating with the improbable target.

It's like having someone come into your home for a pat down bc you talked on the phone to someone who

Thanks for the italics off FreeP.

I faithfully use and carry, almost always "on" my cell. I wonder how often they have used that approach for an attorney's cell, and if they then ping locations on all the attorney's clients?

Of course, these days it seems almost by definition that there are specific and articulable facts showing reasonable grounds to believe that pretty much most of DOJ is involved in some ongoing crime or another - be it violation of the 4th, the 8th, telecom statutes, FISA statutes, obstruction, misrepresentations to the tribunals, politically motivated prosecutorial harrassment, solicitation and conspiracy to cover up assault, kidnapping, actual childnapping, false imprisonment, torture, abuse etc.

So why not just join em. As long as carriers provide American citizens with access to track any member of the Admin or Exec Branch on request, then ...

After all, they voluntarily accepted cell phones that US citizens pay for and that have GPS. ;) And hey - it's not "that" invasive.

Right.

[bmaz]

Heh heh, I had the very same goose for gander thought. Here is the thing that bugs me (ok it all bugs me, but this stood out): The general reasonable suspicion standard under Terry and it's progeny allow the limited burden to be met by a combination of completely innocuous behaviors under it's totality of circumstances evaluation. For the life of me, I cannot see how any judge can think it appropriate to apply this thin reed to a secret seizure of my privacy with no notice whatsoever either pre or post seizure. This BS doesn't even pass the freaking smell test; it is absolutely absurd.

[Mad Dogs]

Shorter cell phony: "The government is tracking you? That's not a bug, its a feature."

[pdaly]

Curious what Little Boots plans for his post-White House days to prevent the government snooping on his calls.
I'll have what he's having.

[masaccio]

I took some small comfort in the part about the magistrates and judges who refused to grant the warrants. I really care about being left alone. I thought that was a great American motto, but that must have been long ago and far away.

[jdm]

"Just because you're paranoid doesn't mean they aren't after you."

And those OnStar ads (used to look) look soooo... comforting. Glad I drive an old SAAB.

[radiofreewill]

Mary - Thank you for nearly a year of velvet buzzsaw commentary! You do beautiful work!

[Jodi]

bmaz,

again as I have said before I am not a lawyer, and I don't keep up with legal things like I do technical things, but I do know that some Judges have ruled the infrared studies by the police as legal, and what I have heard is that it is used primarily for intelligence gathering. i.e. suspects are identified for future scrutiny, which might of course mean having a friend down in the power company look up a record to even further make the case, before this person is busted on a traffic or vehicular violation, and a passing by drug dog "alerts" to his vehicle.

Example would be a house with a heat pump, and a gas furnace which uses a lot of Kilowatts both in the summer and the winter. Or just a tremendous amount of power.
e.g., a very small house with a detached garage/workshp, and a 300 -400AMP service to each, or polyphase, and the meter runs round and round. Sometimes, and this has happened many times, the same crooks that want to grow pot, or poppies want to steal service (power) and the power company notices something when they audit the lines, and then everything is strictly on the up and up with the cops getting involved.

Of couse does that mean they can further look into your house with microwave techniques? It is a real bag of Pandora boxes.

As for the GPS being cut off by the customer, and then being cut on again by the carrier, That can be done if the phone is designed for it. (Ask IPod Phone owners about what AT&T and Apple can do.) I have never heard of anyone complaining about it being done though (GPS).
Again we run into legal matters of what you as a lawyer would do if your client had his phone GPS tracking cut on remotely without his permission and that was used by the police to make a case without a warrant. Since I have never heard of the phone companies being sued for it, I would assume it isn't done. But yes again tecnically it could be done. Now the tower tracking is done, regularly, just like credit/atm card tracking.
Of course with the current Patriot Act everything is easier.

As for the phone being simply cut off that should stop everything unless there is a hardware (pre OR post selling the phone) modification that allows the phone to be switched on remotely, or some power to be bled off the battery to power something that runs all the time. Since I haven't heard about the hacker community providing a "fix" to put a manual switch on a battery terminal wire that would be switchable from the outside of the case, I assume (yes again assume) that it isn't done. If you are worried about it, then any electronics shop would be happy to provide you with a modification for you to give your clients to use. It should cost less than $60. $2-$10 switch, Less than 2 hours work at $25/hour. Say with a small profit, $100 should cover it.

Now if you get into spies and such, where they can turn a cell phone into a 4 bullet gun that is fired electrically by pressing buttons, then obviously we are in a different realm altogether. By the way, I have seen one of those guns as well as pictures of different models mostly made by the old soviet bloc countries. (typically the bullets come out the antenna post, where a top plug can be removed before firing or not depending on the amount of time available.)

The thing I would worry about bmaz and I personally take precautions myself here for reason of fear of industrial espionage is your cell phone conversations being picked up, and listened to, and also your connections being picked up. You can buy for $4000 or so a self contained unit with a computer, and a receiver that will listen to 1 conversation, and keep track of the connections of literally hundreds of other phones in the nearby vicinity. Civilians aren't supposed to buy these, but of course money talks.
This has happened to people I know. They are on a plane, a long flight usually or international, and someone is sitting next to them, or across from them, and is unusually attentive to their laptop screen, or seems quite chatty. Or they have a package which is positioned so that if a camera lens were concealed in it, a pda or laptop screen would be caught, or if someone doesn't have their pda linker cut off or their wifi connect encrypted, communication transfers of an untoward nature could be made.
((This is real and everyday, bmaz))

The Chinese, the Russians, the Israelis, France and many other Governments routinely have used their spy technology for obtaining industrial intelligence, as well as military info.
I could relate story after story about it.

There are of course methods and not necessarily high tech to deal with these type things, but that is beyond the scope of this post.

If you wish to be sure about your phone which might have a locator in it, then even taking the battery out is not enough. I would suggest a small Faraday Box, or even a camera safe like the network/TV stations use for their vehicles that transport their photographer/camerapeople. You can put your camera, and laptop in them too.

Why the emphasis on the phone, well it is commonly always with you AND is always "talking" (emitting signals). Any WiFi or Bluetooth device, Blackberry is doing that, so even you sweep/test to see if signals are present, it will always be the case, and you can't tell (easily) if they aren't supposed to be there. By the same token, your purse, your PDA, your laptop, your mp3 player, your brief case, anything could be bugged or have a locator placed in it. If they put the bug in your clothes, your coat, your hat, your belt, then two things are necessary, it must be washable but not detectable, it must have a power source if there is not a battery available, and that means limited life.
To summarize, to do something like that, the surveiller would prefer a local battery present for powering the device, and also prefer there to be RF signals presnt to camouflage the device signals.

Speaking about criminal detection, one neat case that piqued my interest was where this son of a crime boss was arrested, and they found the crime funds account. The police knew the son was accessing the accounts, but even though they could search his place he had a piece of "relatively common" software that encryped his files and they couldn't get into them but then one day they somehow did, and proceeded to make their case and seize the crime boss's funds.
The son's lawyer insisted that this was done illegally and the judge required the police/federal agents to disclose how it was done. And no, NSA super computers weren't used, the agents simply but a small keylogger bug on the cable to the son's computer keyboard right up against the case. They first went into his house secretly, installed the bug, and then later came again and retrieved it and exaimed the data. The judge heard this, exaimined the warrants, and said, "fine, proceed."

??tinfoil??? anyone? is not such a crazy idea except on your head.

[iFEMALEusingeye]

These experts here aren't. They have limited knowledge. The land line was the only thing that needed a warrant. Everything else did not need a warrant.

Alien examinations?

[bmaz]

iFEMALEusingeye - Your erstwhile cogent analysis, just like that of JHGH@18:07, is about 50 years out of date and is such a gross generalization and simplification of a complex area of law that it is effectively misleading disinformation. Give a hoot, don't pollute.

[P J Evans]

As far as using utility bills to locate illegal agriculture - in at least one case, they entered and searched premises where the people - who had just moved in within the previous two months - had several computers and several children who had a hard time with the concept of turning things off. There may have been others where there was medical equipment or some other totally innocuous reason. (Most of the larger pot farms, these days, are out in the canyons, away from structures, and using generators for any power they might need.)

[Boo Radley]

"bmaz,

again as I have said before I am not a lawyer, and I don't keep up with legal things like I do technical things,[...]"

Not sure which version of Jodi-bot we're dealing with here. In the past Jodi didn't know the HTML to create a link for her URL's.

[bmaz]

Boo - That was my take as well; looked a bit different than the normal Jodidiot.

For any of the folks that took issue with my position on the police use of thermal imaging from helicopters, you might want to take a look at Kyllo v. United States, 533 U.S. 27 (2001), where the US Supreme Court held that the use of a thermal imaging device from a public vantage point to monitor the radiation of heat from a person's residence was a "search" within the meaning of the Fourth Amendment, and thus required a warrant. Because the police in this case did not have a warrant, the Court reversed Kyllo's conviction for growing marijuana.

[Mary]

Kyllo - I didn't know about that case bmaz. Interesting to see how it will fit in the mix.

[bmaz]

Kyllo is a decent case, and actually has as much respect for the 4th Amendment that you are likely to get these days; but it clearly is founded upon the fact that subject area was a "home". Read in conjunction with other cases, and in Kyllo's own language, it is clear that the same protection is not afforded curtillage of a "home" or other public places an individual may be. That aspect restricts it's usefulness for many of our issues here; but it is of some help.

[JohnLopresti]

I think LHP has important insight about the probability distribution of ripe cases from government's vantage. In a way it is an obligate function of government, possibly; but likely would be sufficient to send Orwell for a nice day contemplating the cliffs of Dover, someplace exquisite and far from the psychodrama of overpopulated urban living. It is refreshing to review some of the relevant and current caselaw in this realm, a zone fairly orphaned by the PatriotPAA and daughterOfPAA regs congress is conceptualizing. Turning the caliope metronome back a few years to a time when the government was transitioning from impromptu habeaslessness regs to filling in the missing mortar gaps, consider this article about one state bruited to be trialing surreptitious cellphone trace of all highway vehicles ostensibly to improve traffic flow management. In another forum a reporter claims in 2007 that the vendor of the cellphone tracing equipment was encountering public ire in MD, for example. Yet, in stolid British manner, a commissioner published a nondescript report 100pp length in 2006 enumerating the merits of surveillance as a government function, possibly one nemesis K.Geo would have appreciated. The curious can read the old MO vendor's first person story of why the system could prove useful, without addressing legality concerns there. One potentially interesting, and known influential thinker in these matters, now evidently is long since involved in many divergent projects unrelated to communications; a regular writer at the old JoshMarshall site still, there are a few posts scrollable thru a link on that writer's private consulting site there; I think he teaches at a reputable institution of education in Hartford, though a fast-search only showed a few paragraphs prof.Hundt had written concerning thirdworld progress enhancement benefits from cellphone dissemination, TPM ibid. He was more voluble in comments pre2000, providing congress guidance in the difficult argument of whether to GPS cellphones or rest on the simple navigational tools the nets use natively, and, evidently, the bot factors appear to know a few acronyms there, though without embarking on full orthogonal waveDivision multiplexing, which is the more conduited and un emf'd side of what was happening around the time congress and later Powell's FCC cheered the result of GPS approval, the latter being simpler, at the last, given the legacy compatibility issues with some of the other transmission protocols as the bot kindly listed them. Now, who still uses GSM and TDMA inside the US, one might ask rhetorically. The caselaw is more important; but I have a lot to research to contribute in that respect, as it has been some years since I read it closely enough to form the stageset for congressional discussions.

[Neil]

I hope the Needham police obtained a warrant to track Dunn's whereabouts from his cell phone signal because they absolutly had probably cause moreover, if they don't need a warrant to track a suspected killer then they don't need a warrant to track a citizen for whom they do not have probable cause.

Police received a 911 call from Jamie Moore, who had fled the house, around 12:46 p.m. The Needham Police Department was on the scene within minutes, and Nancy Moore was rushed to Beth Israel Medical Center in Boston, where she was in fair condition later that night, according to the hospital. By Saturday afternoon, a hospital spokeswoman could say only, “We have no information on this person.” [...]

The Norwood man was apprehended just over three hours later in a “reeded” area on the west side of Route 128, about a half-mile from the scene. According to District Attorney William Keating, the suspect was found based on a description from Jamie Moore of the man’s “reddish” shirt, with the help of helicopters, police dogs and Dunn’s cell phone signal.
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