Tag: cellphones

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Law Privacy

New York ruling that lets police follow cellphone locations without a warrant highlights significance of Supreme Court review in Carpenter case

New Yorkers have no constitutionally protected right to privacy in information about our whereabouts that can be deduced from the data emitted by our cellphones, an appeals court in Rochester has ruled in a case that underscores the significance of a ruling expected this spring from the U.S. Supreme Court.

Sharhad Jiles was sentenced to 25 years to life in prison after being found guilty in the shooting death of Sheldon Hepburn during a 2011 robbery. At trial, prosecutors used records obtained from the company that provided Jiles’ cellphone service to place him in the location of the murder.

Jiles asked the judge to exclude the records, which revealed his location over a period of four days beginning on the data of the robbery; information that Jiles contended prosecutors needed a warrant to obtain.

Prosecutors had acquired the records, which track every time our cellphones register with the nearest tower, via a subpoena issued to the provider pursuant to the federal Stored Communications Act, which allows the government to obtain such data without a showing of probable cause of a crime. The trial judge sided with prosecutors and Jiles appealed.

On appeal, Jiles argued that so-called cell site location information is protected by the Fourth Amendment by two rulings of the Supreme Court: a 2012 decision that overturned the conviction of a Maryland man based on evidence obtained from a GPS device that police, acting without a warrant, affixed for 28 days to the underside of his automobile; and a 2014 ruling by the court that police may not, without a warrant, search the contents of a cellphone obtained from someone who has been arrested.

The New York court disagreed, citing a series of rulings by federal courts that suspects have no constitutionally protected privacy in records they voluntarily supply to a third party such as checks, deposit slips and other records filed with banks or telephone numbers they dial.

“We remain bound by the third-party doctrine when interpreting the Fourth Amendment [until] a majority of justices on the [Supreme] Court instructs us otherwise,” Justice Gerald Whalen wrote on behalf of the court in a Dec. 22 ruling.

The instruction should arrive this spring, when the Supreme Court is expected to rule in an appeal from Timothy Carpenter, who was convicted and sentenced to 116 years in prison for a series of robberies in Ohio and Michigan.

At trial, prosecutors introduced evidence of Carpenter’s location they gleaned from records obtained from his cellphone provider that revealed his movements over a period of 127 days.

Like Jiles, Carpenter contended that the government should have obtained a warrant for the records, but both the trial judge and the 6th U.S. Circuit Court of Appeals disagreed.

The Supreme Court heard arguments in the appeal on Nov. 29. Nathan Wessler, an attorney with the American Civil Liberties Union who argued on behalf of Carpenter, distinguished business records such as those filed with a bank from the location data collected by the towers that carry calls from our cellphones.

“The information in bank records can be quite sensitive, but what it cannot do is chart a minute-by-minute account of a person’s locations and movements and associations over a long period regardless of what the person is doing at any given moment,” Wessler said in response to a question by Justice Alito.

Such data gives the government “a categorically new power that is made possible by these perfect tracking devices that 95 percent of Americans carry in their pockets,” he said later in response to a question from Justice Kennedy.

Arguing for the government, Deputy Solicitor General Michael Dreeben dismissed the distinction. By obtaining records that reveal a suspect’s historical location, the government “is doing the same thing” it did in the case of bank records, he told the justices. “It is asking a business to provide information about the business’s own transactions with a customer. And under the third-party doctrine, that does not implicate the Fourth Amendment rights of the customers,” Dreeben added.

As Amy Howe at Scotusblog noted, the challenge for the justices may be where to draw the line between information that is entitled to protection of the Fourth Amendment and that which the government can obtain with a subpoena.

“This is highly personal information,” Justice Breyer remarked, referring to location data that can be gleaned from cell towers.

Justice Sotomayor took note of the erosion on privacy that can accompany developments technology. “Right now, we’re only talking about the cell sites records, but as I understand it, a cell phone can be pinged in your bedroom, “she said. “It can be pinged at your doctor’s office. It can ping you in the most intimate details of your life. Presumably at some point even in a dressing room as you’re undressing. So I am not beyond the belief that someday a provider could turn on my cell phone and listen to my conversations.”

Justice Alito pushed back, challenging Wessler to distinguish cell site location data from bank records or telephone numbers called. Cellphone service contracts advise subscribers that the company can disclose location information to the government pursuant to a court order.

Wessler replied that the Stored Communications Act provides two ways the government can obtain records: either by a court order or a warrant. That, he argued, suggests that anyone looking at the law “would be quite reasonable and right to assume that the reason there’s a warrant prong is to deal with records like these in which there’s a strong privacy interest.”

Some experts say the march of technology means it’s time for the court to discard the third-party doctrine entirely. Writing recently in The Washington Post, Bruce Schneier, a technologist and lecturer at Harvard’s Kennedy School, noted that we store most of our data on computers that belong to other people.

“It’s our email, text messages, photos, Google docs, and more — all in the cloud,” Schneier wrote. “All this data will be collected and saved by third parties, sometimes for years. The result is a detailed dossier of your activities more complete than any private investigator — or police officer — could possibly collect by following you around.”

Police should be able to draw on the data to help solve crimes, Schneier said. But they first should be required to have probable cause and obtain a warrant.

“It’s long past time the Supreme Court recognized that… my emails and other personal data deserve the same protections, whether they’re on my laptop or on Google’s servers,” he noted.

Categories
Privacy

Cell site records privacy comes to the Supreme Court

This fall the Supreme Court will decide whether to hear an appeal that addresses the privacy each of us has in information our cellphones exchange with the network that reveals our movements over time.

The matter comes to the Court in an appeal by Quartavious Davis, an Alabama man who was convicted in 2011 of a string of seven armed robberies in Miami, Florida that netted him a sentence of 162 years in prison. Federal prosecutors tied Davis to the heists—which included robbing a pharmacy, an auto parts store, a beauty salon, and a fast food restaurant—in part from transmissions between his cellphone and the towers it transmitted to as he moved about town.

Prosecutors obtained the cell site data pursuant to an order from a federal magistrate judge that authorized them to review Davis’ phone location for a period of 67 days in September and October of 2010 that straddled the heists.

According to court papers, the records, which prosecutors obtained from MetroPCS, Davis’ service provider, revealed 11,606 points of information about his whereabouts, including calls he allegedly placed to and received from co-conspirators.

At trial, Davis moved to exclude the location information, asserting that prosecutors obtained it without a search warrant. Prosecutors relied instead on the Stored Communications Act, a federal law that authorizes law enforcement to obtain records a magistrate deems relevant to an ongoing criminal investigation.

The problem, Davis asserts, is that the government’s obtaining the location data constituted a search within the meaning of the Fourth Amendment. That required prosecutors to obtain a warrant supported by probable cause, which means prosecutors would have had to demonstrate to a judge a reasonable basis for believing a crime had been committed.

The distinction matters to Davis, who was sentenced at age 22 and faces the rest of his live in prison, but also to anyone who uses a cellphone, which is to say nearly all of us. Ninety-two percent of American adults own a cellphone or smartphone, according to a study published in August by the Pew Research Center. And 90 percent of cellphone owners say they frequently carry their phone with them.

Cell site information reveals an abundance of information about us. As Justice Sotomayor wrote in 2012 in a case that found the government’s attaching a GPS device to a vehicle for 28 days to be a search within the meaning of the Fourth Amendment, “I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.”

Davis’ appeal presents the Court with an opportunity to revisit the so-called third-party doctrine, which holds that you lack a reasonable expectation of privacy in information you disclose voluntarily to third parties. The approach, which traditionally applied to things like a suspect’s bank records, makes less sense in an age in which, as Justice Sotomayor noted in the concurrence cited above, “people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”

The Court has recognized as much. Last year the justices ruled unanimously that police may not, without a warrant, search information on a cellphone from someone who has been arrested. Writing for the Court, Justice Roberts noted:

“Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day. Now it is the person who is not carrying a cellphone, with all that it contains, who is the exception. According to one poll, nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower.”

In Davis’ case, a three-judge panel of the U.S. Court of Appeals for the 11th Circuit ruled that the government violated his rights under the Fourth Amendment by obtaining the cell site location records without a warrant. Still, the panel sided with the trial judge and upheld the conviction because prosecutors relied in good faith on the magistrate’s order.

By a vote of 6 to 5, the entire Eleventh Circuit later reversed the panel, holding that the government did not violate the Fourth Amendment when it obtained the location data because Davis had no reasonable expectation of privacy in records held by his service provider.

The ruling set up a split among federal appeals courts. The U.S. Court of Appeals for the 4th Circuit ruled in August that the government’s accessing cell site data constitutes a search under the Fourth Amendment. That makes the case ripe for review by the Supreme Court, Davis contends. According to the Electronic Frontier Foundation, which filed a friend-of-the-court brief urging the Court to decide the case:

“Given the prevalence of cellphones and smartphones, and the increasing number of law enforcement requests for this sensitive information, this case thus presents a question of compelling national importance. The number of Americans promised that [cell site location information] remains private and accessible to law enforcement only with the protections of a search warrant is increasing. Yet, this legal protection is not uniform, and the federal courts in particular have issued conflicting opinions on the topic, leaving the public and law enforcement in limbo.”

The number of requests by law enforcement for location data is rising. According to figures cited by EFF, AT&T projects it will receive nearly 76,000 requests for cell site location information this year from law enforcement, up 19% from a year earlier and just under the number of such requests received in 2012. Verizon is projecting a 55% increase in the number of so-called cell tower dumps, a majority of which, EFF observes, occur without a warrant.

Note that Davis’ appeal ties to historical location data. Several states already require police to obtain a warrant before tracking a cellphone in real time. This chart from 2011 will give you a sense of how long your cellular provider retains a record of towers used by your phone.

For the Court to take up Davis’ case, at least four justices will have to vote to hear the appeal. In addition to an opportunity to unify the circuits, the justices could use the appeal to clarify the standard for assessing the government’s conduct. Orin Kerr, a professor of law at George Washington University, says the Eleventh Circuit’s reasoning also may make the case worthy of review. As Kerr wrote in The Washington Post following the appeals court decision:

“Instead of the… rule of a warrant, the court begins with general balancing. It’s important to catch criminals, the court reasons, and the statute has some good protections given that this wasn’t such an invasive practice. So on the whole the government’s conduct based on reasonable suspicion seems reasonable and therefore constitutional.

This alternative holding is a major development, I think. It’s at odds with the usual rule that a criminal search requires a warrant, and instead replaces it with a totality of the circumstances inquiry into whether the criminal search was the kind of thing that we would generally say is good or would generally say is bad. There’s not only no warrant requirement, there’s no probable cause requirement: It’s just a free-floating reasonableness inquiry.”

According to the Reporters Committee for Freedom of the Press, allowing warrantless access to cell site data also undermines freedoms guaranteed by the First Amendment. “In part because location data can be so revelatory, journalists frequently go to great lengths to ensure that the locations where they meet their sources are kept private, and that their communications are confidential,” the group writes in a friend-of-the-court brief.

From precedent, we know the justices are paying attention to the privacy implications of technology. In that regard, they seem likely to read a concurrence by Judge Robin Rosenbaum, a member of the Eleventh Circuit who, despite finding the search of Davis’ location data reasonable under the Stored Communications Act, expressed concern.

“In our time, unless a person is willing to live ‘off the grid,’ it is nearly impossible to avoid disclosing the most personal of information to third-party service providers on a constant basis, just to navigate daily life,” Rosenbaum wrote. “And the thought that the government should be able to access such information without the basic protection that a warrant offers is nothing less than chilling.”

Categories
Privacy

In shift, Justice Department requires warrants for using stingrays to spy on cellphones

The Justice Department has tightened restrictions for tracking cellphone signals in a move that officials say will improve transparency and protect the public from unwarranted invasions of privacy.

Henceforth the FBI and federal law-enforcement agencies will need a warrant supported by probable cause before using a so-called cell-site simulator, which can impersonate a cellphone tower by sending out signals that induce phones to respond with identifying information.

The move represents a win for privacy even though the warrant requirement doesn’t apply to state and local governments, which also use cell-site simulators to track suspects.

The devices, which are known variously as stingrays, dirtboxes or IMSI catchers (for International Mobile Subscriber Identity), are used widely for surveillance but have proved to be controversial because of their sweep and the secrecy that shrouds their use. Agents deploy the devices from cars and planes, which enable scanning across larger areas.

“Cell-site simulator technology has been instrumental in aiding law enforcement in a broad array of investigations, including kidnappings, fugitive investigations and complicated narcotics cases,” Deputy Attorney General Sally Quillan Yates said Thursday in a statement announcing the change. “This new policy ensures our protocols for this technology are consistent, well-managed and respectful of individuals’ privacy and civil liberties.”

The pivot by DOJ represents a departure from past practice, when law enforcement personnel had to certify merely that use of a cell-site simulator was relevant to an ongoing criminal investigation.

Under the revised guidelines, agents may not configure simulators to collect the contents of communications, including emails and text messages. Agents also must inform judges when applying for warrants that use of the device will capture information from cellphones in the vicinity that are not subject to the investigation, and that the simulator may disrupt service temporarily for all cellphones within reach of its signal. Officials also must detail to the court how they plan to delete data not associated with the device being targeted.

As is the case under the Fourth Amendment generally, federal officials can use a simulator without first obtaining a warrant in the event of so-called exigent circumstances or when the law does not require a warrant, in which instance agents must first obtain the OK of officials within DOJ.

The Guardian reported Friday that public defenders in Baltimore are examining more than 2,000 cases in which police used stingrays to gather evidence on suspects secretly. Prosecutors are obligated to disclose evidence against criminal defendants in the discovery phase of a criminal trial.