judge rules cell tracking is intrusive

[dragon]

Hey a judge with common sense, whats funny is last week the 9th circuit sayed gps tracking is fine but the DC court of appeals says it is intrusive and must have warrant.

A NY state judge has said that looking up a person's movements via cell phone location data is just as intrusive as GPS tracking. Bless him.

Here's a fantastically verbose quote from the ruling of Judge Orenstein of the Eastern District of New York , who seems to be a remarkable example of some who knows what's going on in the modern world:

"The decision in Maynard is just one of several rulings in recent years reflecting a growing recognition, at least in some courts, that technology has progressed to the point where a person who wishes to partake in the social, cultural, and political affairs of our society has no realistic choice but to expose to others, if not to the public as a whole, a broad range of conduct and communications that would previously have been deemed unquestionably private"

In United v. Maynard, the previous case Orenstein refers to, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the government must obtain a warrant to track a person's movements via GPS tracking device. What Orenstein says is that the same rationale applies to re-creating a person's movements using historical cellphone location data—that it's just as intrusive to Americans' reasonable expectation of privacy. In the ruling, Orenstein and the court denied the government's request to access two months of historical cellphone location data without a warrant from mobile network Sprint.

A relieving contrast to a much different ruling last week, by the West's Ninth District Court of Appeals that ruled tracking by GPS is fine and not a privacy violation at all. Crazy.[Ruling via ACLU and Boing Boing]

link

So this will deffinitly go to supreme court

[Uraniun235]

Is it actual GPS tracking or is it just tracking them via the cell tower network? If it's the former, how are they getting access to the GPS data - is the phone constantly reporting back its GPS coordinates? To whom?

[Kanastrous]

I think the GPS referenced is a plant-it-on-the-vehicle-without-subject's-knowledge-or-a-warrant kind of deal, as distinct from cell-phone tower tracking. There are two cases mentioned, one involving the GPS devices and another involving cell phones.

I guess my question is, if a police department does not need a warrant to simply tail someone everywhere they go (so far as I know they don't, do they?) then why would they need a warrant to use a device or technique that doesn't give them any more or different information than a physical tail? Is it just that we don't want to make it too easy...?

[Alyeska]

I think the GPS referenced is a plant-it-on-the-vehicle-without-subject's-knowledge-or-a-warrant kind of deal, as distinct from cell-phone tower tracking. There are two cases mentioned, one involving the GPS devices and another involving cell phones.

I guess my question is, if a police department does not need a warrant to simply tail someone everywhere they go (so far as I know they don't, do they?) then why would they need a warrant to use a device or technique that doesn't give them any more or different information than a physical tail? Is it just that we don't want to make it too easy...?

A GPS device is more like putting a phone tap on. You are doing more then mere attempts at eavesdropping. And GPS will track people extensively no matter where they go. The abuse it could go with no oversight what so ever. No warrant? No problem. Use it to violate someones privacy to a massive degree with absolutely no effort on the part of the cops. Now think how corrupt police could readily use this with absolutely no recourse.

[Kanastrous]

A GPS device is more like putting a phone tap on. You are doing more then mere attempts at eavesdropping.

I don't see the congruity. A phone tap grants police access to the content of your conversations. Tracking your location does not provide that investigative resource at all; it allows police to monitor your movements in your car. Which is exactly what a detective or two in a car (or more detectives in more cars as req'd) do: they observe where you are and when. I'm not sure why you mention eavesdropping since in and of itself GPS data consists of positional rather than audio information.

Unless you mean invasion-of-privacy. In which case I likewise don't see how a GPS trace is more invasive than cops-in-a-car behind you. Less, even: the police observing you at first hand might see all sorts of potentially damaging stuff that mere GPS positional data would never reveal.

And GPS will track people extensively no matter where they go.

I don't think it's hair-splitting to point out that they can use GPS to track the vehicle in which it's installed. I think it's an important distinction because your privacy is not being invaded in terms of what you are doing at whatever location the GPS records you to be. When you leave the car you leave it behind. It's not a camera on your shoulder; the kind of information it relays is limited. Again, how is this qualitatively different from having a police tail assigned to you? Unless one argues that police inefficiency as a matter of policy is a desirable thing, it seems that a technical solution that's cheaper, more accurate, more reliable and safer than manpower is a good thing.

The abuse it could go with no oversight what so ever. No warrant? No problem. Use it to violate someones privacy to a massive degree with absolutely no effort on the part of the cops. Now think how corrupt police could readily use this with absolutely no recourse.

I don't think I can come up with an abuse that would not be possible using police assigned to follow you. I also don't really see how a record of positional coordinates over time can compete with the frame-and-screw-you-to-the-wall job that one or two officers could do if they gave direct reports and testimony rather than navigational records without context or professional eyewitnesses.

Now if a warrant is usually required for visual surveillance of a person, just driving down a public street and being followed at a distance - I would agree that a warrant ought to be demanded for GPS tracking, too. So far I don't grok how this is more than an extension of existing police practice via more efficient means.

[Alyrium Denryle]

The difference is in the resources required. It takes comparatively little to GPS track someone, or to use the GPS on someone's phone to track them. A physical tail requires manpower and that manpower puts a practical limit on its use. A police officer who wants to tail you will not waste his time doing it if he does not reasonably suspect you of something.

With electronic data, that effort is not required. It becomes feasible to track the movements of large numbers of people for... any reason whatsoever. Supposedly secure financial institutions cannot keep their credit card databases safe, police departments dont have that sort of security, and a monitoring system like this would have to be networked. Imagine if there was widespread implementation. Someone could hack the database, and out everyone who frequents a gay bar, or an abortion clinic. Because it offers very little practical benefit compared to traditional methods, and the risks are high, it is better to avoid any sort of warrant-less implementation of this sort of tracking. If only because if something like that is permitted, politicians wanting to appear tough on crime during election season will set in motion leading to its wide spread use, and subsequent risks.

[Sea Skimmer]

Is it actual GPS tracking or is it just tracking them via the cell tower network? If it's the former, how are they getting access to the GPS data - is the phone constantly reporting back its GPS coordinates? To whom?

After the World Trade Center got blasted and the US declared war on evil one of the huge pile of laws passed mandated improved 911 location coverage. They didn’t demand a high end military grade GPS level accuracy, but the easiest way to meet the spec (IIRC 100 meters) was to simply put a very basic GPS receiver in each phone. Many many phones which do not say they have GPS have one of these basic units inside. This was much more economical for the companies then upgrading all the cell towers to track phones.

On paper such phones are only supposed to broadcast its location when you dial 911. In reality the phone companies have always been in the government pocket, long before September 11th thanks to nuclear war and the need for hardened communications, so it’s entirely likely that the phone companies can force those phones to ping.

Now some more advanced phones with wifi and high end GPS units do just constantly broadcast positional updates, because the companies want to locate places for new hotspots. Tens of billions of dollars has been spent upgrading the cell network to try to support all these smart phones, and they aren’t keeping place.

Any phone can be located through cell towers, but only if the towers have been modified to track phone signals. They get your location most often from measuring time delays, not from having antennas actually capable of direction finding as if they are military ESM devices. So its not super precise, but certainly accurate enough to be useful in a court case.

In the end the issue is, while these methods differ and depend on the cell phone and the cell network, the police can’t damn well expect to know what is being used. How the tracking is conducted would vary as the subject moves from one network to another. For that to work you’d have to know what model phone the guy has to even guess at how it would be tracked. it makes no sense at all to allow phone tracking by one method but not another. Either they can do that without a warrant or they can’t. I say they damn well can’t because it is blatantly private information and the government has no legitimate reason to need to know it if they do not have evidence for a warrant.

[Kamakazie Sith]

A GPS device is more like putting a phone tap on. You are doing more then mere attempts at eavesdropping.

I don't see the congruity. A phone tap grants police access to the content of your conversations. Tracking your location does not provide that investigative resource at all; it allows police to monitor your movements in your car. Which is exactly what a detective or two in a car (or more detectives in more cars as req'd) do: they observe where you are and when. I'm not sure why you mention eavesdropping since in and of itself GPS data consists of positional rather than audio information.

Unless you mean invasion-of-privacy. In which case I likewise don't see how a GPS trace is more invasive than cops-in-a-car behind you. Less, even: the police observing you at first hand might see all sorts of potentially damaging stuff that mere GPS positional data would never reveal.

The issue I see is the government is using a persons property to accomplish the tracking, and the fourth amendment specifically states that the people will be secure in their persons, houses, papers, and effects. So, if you utilize another persons property to track that person then they aren't secure.

I'm divided on the placing your own tracking device on a persons car as long as you can articulate why you took that action. I disagree with Alyriums argument regarding resources. It isn't about how easy or difficult it is. It's about if it meets the requirements under law, and the law doesn't say that investigation must be a man power intensive task. Using that logic a department with small numbers would simply be unable to conduct these types of operations because they don't have the man power to follow someone around all day to record where they go.

Basically, Kanastrous is correct that utilizing technology in this manner is no different than following them around. It becomes questionable when you start using their own personal property to accomplish that tracking.

[Simon_Jester]

i think I see where Alyrium is coming from, though. It's not that police shouldn't be able to track people without spending the man-hours for a full tail; it's that there should be some degree of oversight about when they can do so, because the technology makes it so easy that they can do it to everyone all the time. And while I can imagine that the police would want to know where everyone is at all times, since that would probably make their job easier... there are legitimate privacy concerns that grow out of giving them that level of detailed surveillance capability. Among other ones, practical issues with the security of the location databases.

[Kamakazie Sith]

i think I see where Alyrium is coming from, though. It's not that police shouldn't be able to track people without spending the man-hours for a full tail; it's that there should be some degree of oversight about when they can do so, because the technology makes it so easy that they can do it to everyone all the time. And while I can imagine that the police would want to know where everyone is at all times, since that would probably make their job easier... there are legitimate privacy concerns that grow out of giving them that level of detailed surveillance capability. Among other ones, practical issues with the security of the location databases.

Like I said in my post the installation of a tracking device would be based upon reasonable suspicion of a crime, and that would need to be documented in a report just as assigning a tail onto a person would need to be documented.

[Spoonist]

Then it is the evidence side of things. In many trials cell tracking has been used as evidence of the person to be at a specific location. While in reality its only the device that has been tracked. If police would try to cut cost and go this way there will be a new level of evidence in use.
Thus a "tail" is a very different thing.

Why wouldn't 'the system' want the police to have a warrant first? I can see little benefit and lots of drawbacks.

[Kamakazie Sith]

Then it is the evidence side of things. In many trials cell tracking has been used as evidence of the person to be at a specific location. While in reality its only the device that has been tracked. If police would try to cut cost and go this way there will be a new level of evidence in use.
Thus a "tail" is a very different thing.

Why wouldn't 'the system' want the police to have a warrant first? I can see little benefit and lots of drawbacks.

Securing a warrant requires probable cause which is a higher standard than reasonable suspicion. So, really you have to ask yourself if there is a signficant difference in the invasion of privacy between being followed by police officers in plain clothes versus being tracked by an electronic device.

Some of the benefits I can see;
Much more difficult to spot a tracking device than a car following you
Safer for the officers and subject.

[Spoonist]

Securing a warrant requires probable cause which is a higher standard than reasonable suspicion.

Could you give examples of the difference for a non-US reference?

Then how big a deal is it to get a warrant? Lots of red tape or just a phonecall?

Just curious.

[Shroom Man 777]

You need the paper signed by the judge, if I am correct. Which is why they like to get warrants from the judges in the middle of the night, wake the judge up and when he's groggy and pissed they let him sign the paper since he's too groggy to even look at it, and viola, you've got a search warrant for anyone. But yeah, it's a paper. You show it to the ones you're searching.

[Kamakazie Sith]

Securing a warrant requires probable cause which is a higher standard than reasonable suspicion.

Could you give examples of the difference for a non-US reference?

Then how big a deal is it to get a warrant? Lots of red tape or just a phonecall?

Just curious.

In the US police can conduct limited investigations if they have reasonable suspicion of a crime. For example, I conducted an investigation on several people I found in a car which was parked next to a business during closed hours. In addition to that I have knowledge that this business has been the victim of several copper wire thefts within the past six months. Due to these facts I felt that it was reasonable to believe that a crime was about to be committed or already had been committed, and I'm allowed to detain them and conduct an investigation. Under US law I'm allowed to identify, and question each individual about their reason for being there. I can also look for evidence in plain view such as copper wire in plain view or burglary tools in plain view. I'm limited in this investigation because I can only detain them for as long as is reasonable to identify and question them and I can't search them or their vehicle without developing probable cause because they could really just be having car trouble, or tired, or whatever other reasonable reason you can think of for being there.

Now, if I found a spool of copper wire and evidence that the wire was taken from the business then I now have probable cause and I can search them and their vehicle for more evidence, and if I find that evidence I now have probable cause for an arrest.

As for getting a warrant from a judge. There are judges were are on call for exactly this reason, and the officer needs to articulate what probable cause they've developed and what they want to seize. In my example, even though I don't need a warrant for a vehicle search, I could secure a warrant and I would need to articulate my probable cause and get a warrant for the places/things to be searched in/for the car (any place that could hold copper wire and burglary tools)

[Kamakazie Sith]

You need the paper signed by the judge, if I am correct. Which is why they like to get warrants from the judges in the middle of the night, wake the judge up and when he's groggy and pissed they let him sign the paper since he's too groggy to even look at it, and viola, you've got a search warrant for anyone. But yeah, it's a paper. You show it to the ones you're searching.

I guess that could be a reason, but you'd also need to consider the other reasons. Calling a judge up in the middle of the night runs the possibility that the judge will be upset and tell you no, regardless of your probable cause. Another is that the judge will competently consider your probable cause and give a competent answer.