ACLU map of the 29,659 datapoints generated by Aaron Graham’s cell phone over 221 days
In a report published yesterday, the Electronic Frontier Foundation describes an AWFUL decision made this week that further shreds our Fourth Amendment right to privacy (emphasis mine):
This week, the full Fourth Circuit Court of Appeals—in a decision that impacts residents in Maryland, North Carolina, South Carolina, Virginia and West Virginia—held that you have no expectation of privacy in historical location data generated by your cell phone. This decision, which follows decisions from four other federal appellate courts, means that now, in the vast majority of states, federal law enforcement agents don’t need to get a warrant to get access to this data from a cell service provider.
…
This week the full court overturned its earlier opinion, relying on a wonky legal principle from two 1970s Supreme Court cases called the “third party doctrine.” This principle holds that information you voluntarily share with someone else—whether that “someone else” is your bank (such as deposit and withdrawal information), the phone company (the numbers you dial on your phone), or a government informant—isn’t protected by the Fourth Amendment because you can’t expect that third party to keep that information secret.But the Fourth Circuit took the third party doctrine further than any case we’ve seen so far. The court held that it didn’t matter if cell site location information could reveal sensitive information about our lives; it didn’t matter how many days worth of data the government got from the service provider; and it didn’t even matter whether we had any idea the phone was generating the data or had any real control over when or where the phone generated data. Purely because that data was shared with a service provider, the Fourth Amendment didn’t protect it.
Just so everybody understands — the current versions of Google Maps use your GPS information to tell you which exit to take from a rotary. That means they know, within feet, where your phone is.
This ruling means the government may collect and retain such information on each of us for arbitrary periods and with NO notification whatsoever.
It is my lay opinion that the government has no right to maintain or acquire detailed information about where I go and when.
This epitomizes the abuses that George Orwell warned of in 1984. Privacy, as we have long understood it, is dead — unless and until we reverse this AWFUL direction.
I’m increasingly pessimistic that we can reverse this direction. It seems that most people now want security much more than they want privacy, even if increased surveillance and other policies have not shown to be that effective in increasing security.
With the help of the 24-hour media, we’ve been conditioned to think that terrorism is the gravest threat. Actual data shows that it’s still not that great of a risk – not even in the same league as very routine things that we care less about – and compared to other eras, especially Europe in the 1970s, the frequency of attacks and number of victims is not close to what it was.
We’re also perfectly comfortable with sharing every piece of personal information with corporations now. Given just those two shifts, I don’t know how we mount a campaign to limit government access and use of this information.
The political risk of leading on this issue is also huge. If a president were to reverse course and there was an attack (even if it was completely proven that the attack could not be prevented), the other side would slay the president. This isn’t a Republican-Democrat issue either, because either party would gleefully wallop the president and pick up the mantle of the party of “keeping us safe.”
This is an area on which a President Clinton or President Trump will have to be dragged by the public into the right direction. The former may be easier to pull than the latter, but neither is on the right side on this issue, and I’m not sure we can get enough of the public angry enough to make this an issue.
is supposed to be mitigated by the 4th Amendment, which is why this is so depressing.
warrants are just so annoying…
If I were a victim of a crime of disappearance this info could be useful. It does not appear to be a search of the content of one’s communications, which would be a more serious 4th amendment concern. Also, those of us who drive can already easily be tracked by our license plates.
The issue is that, without even the need for a warrant, government can target you–not because you are suspected of committing a crime, but because they want to find a crime with which to charge you.
LEO: “I’ve had it with this christopher guy, let’s find something so we can lock him up.”
Given the loosey goosey nature of a lot of criminal law, especially federal criminal law, it isn’t that much of a leap to christopher being a criminal defendant for purely political reasons.
If it came to that I know my rights. The 4th amendment is about searches of physical property and communications, which this does not seem to be.
It is MUCH easier when you hand them years of data to comb through.
You might know full well that your visits to meet students are perfectly proper tutoring sessions. Somebody with an axe to grind against you can still paint a devastating portrait if you give them paint, canvas, brushes, and some photographs. You would do well to become more familiar with how bad guys abuse powers they already have.
I think your view of the 4th amendment is very much more restrictive than that of most constitutional scholars.
…but that example is exactly why scouts and church prohibit one adult alone with one unrelated child or why it’s a good idea for such tutoring to be done in a public place.
as the landmark Katz v. United States put it, “protects people, not places.” Thus it goes beyond just searches of physical property and communications to protect all situations in which a person’s expectation of privacy is violated. This is a good rule, in my opinion, and it ought to apply here. While people are in a narrow sense voluntarily turning over cell phone information to a third party (the company), I think people have a reasonable expectation that government is not tracking them through the mass collection of data.
The Fourth Amendment, and indeed much of the Bill of Rights, is meant to make the job of police and prosecutors more difficult. This is why requiring a warrant in this circumstance is more compelling than in the license plate analogy. Cops do not have the unlimited resources it would take to follow everyone around in their car at all times, so it is that practical limitation that protects rights. In the era of Big Data, however, there is no practical resource-based limitation on police so something else needs to provide a limit — robust application of the Fourth Amendment’s warrant requirement.
And that’s all this would require — for police to go before a neutral judge or magistrate to demonstrate probable cause to get a warrant and obtain this data. It makes police work more difficult, but not impossible. I’d argue that that’s most aligned with both the text and spirit of the Fourth Amendment.
Absent the need fora warrant, there really isn’t any reason that the govt couldn’t just get this information, routinely, on everyone, doubtless on the theory that they could then identify terrorists through certain pattern analysis magic. The same reason they read our emails, and got telephone metadata.
…that I had much privacy when I was out and about.
You don’t take your license plates with you when you walk inside a friend’s house or choose to wander around on foot. Your license plates don’t yet broadcast your vehicle’s location on a millisecond by millisecond basis (and highway fee systems based on tracking license plates have been resisted on privacy grounds).
Your eagerness to discard constitutional protections betrays the generations of patriots who fought to create and preserve them.
> highway fee systems based on tracking license plates have been resisted on privacy grounds
We just installed open road tolling systems on the Pike. In my drive to Albany the state government tracked my license plate something like 14 different times.
Follow me on this.
If you own a business the police (or anyone else) can ask o see your business records. Unless you have a specific written agreement with each customer you are under no obligation to keep them from law enforcement or anyone else.
That is the why drug store, insurance companies, phone companies, electric, gas, and cable companies routinely share information with law enforcement.
If law enforcement wanted to listen in on phone conversations a warrant would be required.
Nothing to see here but enough info to get the obtuse civi libertarian all fired up.
Go back to bed yal Sunrise comes early and there’s a farm to tend. Leave this big thinking law stuff to the fancy city folk.
You miss the point.
The information maintained by a drug store, insurance company, landline, electric, gas or cable company does NOT reveal my physical location every minute of every day.
It might be perfectly ok with you and Christopher for such detailed information about you to be available to any government official who wants to see it (for any reason).
It is not ok with me.
How about your doctor or other medical professional? How about your employer? Your bank?
I don’t know the answer — these questions are in no way rhetorical.
…that various records kept would in fact be covered by the fourth amendment and the custodian of such would be within his rights to demand a warrant.
Don’t know if how this specific ruling effects those, but the feds have been able to get bank and even medical records for quite some time with what’s called a National Security Letter. No sign off by a judge required. Little oversight. These actually existed before the Patriot Act, but were greatly stregthened and broadened by it.
…if someone decides not to honor such a letter? If that person is charged with something the case is now in the judicial branch and a judge could decide not to enforce it and drop the charge.
and maybe that person’s life will be ruined. Very very few individuals would take that risk. That’s incredible thin protection for the subject of the letter’s civil rights, if that’s what you’re getting at.
There has been in the news instance of a been big corporation that challenged a letter or a portion of a letter (most particularly the nondisclosure clause they contain), but it’s rare and takes big pockets to even have a chance.
And then that person spends a few years in prison for impeding a federal investigation– the same charge they used on Martha Stewart for “covering up” a nonexistent crime.
…you have to trust that there are enough actors that someone will step up and do the right thing constitutionally. The Bill of Rights isn’t worth the parchment it is printed on if everyone involved conspires against you. Personally, I’d prefer to leave that level of paranoia to the NRA.
It’s one thing to say you don’t care. I may disagree and roll my eyes, but I guess it’s perhaps not much different my lack of concern about whether or not I can arm myself.
Describing the concerns of those of us who feel differently as “paranoia” is a different story. Martha Stewart was not alone. I remind you that CMD is an attorney, and I suspect has far more first-hand experience with federal officials then either of us. Your very narrow interpretation of the Fourth Amendment is very much at odds with pretty much everything I understand about it.
The thing most likely to make the Fourth Amendment — and all the rest of our constitutional rights — worthless is when voters like you toss them aside so cavalierly. Perhaps you forget what the thread-starter describes.
Our concerns are NOT paranoia.
Sorry, CMD
I don’t remember enough about the Stewart case to comment except that I thought it was for something we shouldn’t be wasting prison space on.
The fourth amendment specifically guards against search and seizure of “persons, property, papers, and effects” In the 21st century it makes sense to interpret papers as any form of communication, but I still don’t see knowing which tower your phone last pinged from as necessarily and issue. I still think your seeming government is out to get me mentality is more worthy of the NRA.
To give prosecutorial authority the benefit of the doubt ever. No, i do not do criminal defense. But within my adult lifetime, federal law enforcement in Massachusetts has conspired in murders, and state law enforxement has attempted to keep people known to.be innocent in prison, seemingly to prevent embarassment to the political campaigns of former prosecutors. After the marathon bombing, one of the witnesses was shot and killed by the FBI WHILE IN FBI CUSTODY, and the government seems to have decided that this is no big deal. Also, within the last ten years, we know that federal authorities (i) monitored communications metadata (who called who and when); and (ii) monitor the content of all email traffic–of everyone in the name of security. Now that same methodology can legally be used to collect data on nearly eveyone’s daily movements?
Federal criminal law is extraordinarily vague. Sometimes, this is nice, as the feds can swoop in after an acquittal on state charges in notorious cases. But note that they never seem to have trouble finding some other way to prosecute someone. Martha Stewart was indicted for insider trading, and acquitted. But she was convicted of impeding the investigation in order to cover up the crime she didnt commit. The Computer Fraud and Abuse Act has been used by federal prosectors to indict people for using software or websites in ways that violate the click-through licenses that no one reads. Yes, criminal prosecution for breach of contract. Within the last month, you yourself were wondering how the governor of Maryland can be charged with a fexeral crime for something that isnt even illegal.
The answer is that federal law is so sweeping that you and i both will tomorrow do something that could be indictable under federal law, if someone chose to prosecute it.
You view this as paranoia. I view it as a steady erosion of a key factor that distinguishes our free country from the “freedom” enjoyed by the subjects of Putin’s Russia.
The published opinion here is that the no “expectation of privacy” exists that blocks the government from collecting geographic data from providers. In this case, the data collected was cell phone tower location (CLSI). The ruling, however, opens the door to ALL geographic data maintained by providers.
The opinion itself shows (and provides a cite to support) that your interpretation has already been proven to be overly restrictive:
That decision says this (emphasis mine):
That opinion, in turn, references California v. Ciraola (emphasis mine):
In short, established precedent until this decision has been that the Fourth Amendment applies whenever:
1. The individual manifests a subjective expectation of privacy in the object of the search
2. Society is willing to recognize that expectation as reasonable
I, and a GREAT many people like me, feel strongly that detailed (to the meter, in many cases to the foot, and to the millisecond) information about my location is PRIVATE.
The opinion here, that you are apparently agreeing with, holds that such expectation is unreasonable. You even characterized my desire for privacy as “paranoia”.
I most emphatically disagree.
Thee are laws related to medical records and providers. But anything that is in control of a third party, like your cable tv records, phone records, taxi records, restaurant and retail purchases. Anything where you provide information to a third party. That third party is under no obligation to protect that information.
Try reading the opinion, or the law — conveniently cited above.
The issue in this case is whether or not society believes it is reasonable for the government to collect this information without a warrant. Your commentary on this matter offers insulting and offensive smoke and absolute NO “fire”.
Weighing in a little late on this heated discussion. This is an area of some professional expertise for me, as a Fourth Amendment/anti-surveillance activist.
This ruling was unhelpful to us, but within limits. Courts of Appeals have limited ability to circumvent Supreme Court precedent. The really damaging ruling that they are following is Smith v. Maryland (1979), which ruled that the individual in that case had no reasonable expectation of privacy in their phone metadata held by a third party. That case dealt with one person arranging drug deals from a payphone. The problem is that the DEA, NSA and others have argued – in this case, successfully – that even infinity times zero reasonable expectation of privacy is still zero, and that therefore they can constitutionally seize and rifle through the metadata of all Americans, no warrant required.
Of course, when you do that for cellphone metadata, it reveals a lot more about your movements than for payphone metadata, and Smith v. Maryland necessarily doesn’t address that.
The Second Circuit ruled last year that NSA bulk cellphone metadata collection was illegal, but didn’t rule it unconstittutional, not reaching the issue of metadata under Smith v. Maryland. The Supreme Court has found that there are circumstances where GPS metadata can in fact constitute a search under the Fourth Amendment (US v. Jones, 2014), but disagreed as to why.
So the best way to characterize the situation is that the third-party doctrine under Smith as characterized by the NSA is a position that has been eroding a little; this decision shores it up a little; but the guidance from the Supreme Court is, for the moment, unclear. Were Merrick Garland to be appointed to the Supreme Court, it appears likely that he would rule to maintain Smith, but it’s the Supreme Court, so who knows.
If you’re interested in active advocacy on these issues, our Fourth Amendment and anti-surveillance group, Digital Fourth / Restore The Fourth – Boston, meets regularly (our next meeting is Thursday 11am at Tatte Cafe, 101 Main St., Cambridge, and we have an evening meeting coming up June 26, 6:30pm, at Summer Shack by Alewife). There are a lot of people who care about this, both here and nationally, and are having some effect in rolling back the surveillance state; so I don’t agree with doubleman’s pessimism that nothing can be done.