Court OKs Warrantless Cell-Site Tracking

[theprez98]

Article about the case from Wired is here.

Actual text of the decision is here (note: PDF).

Note that the decision here is about cell site location information (CSLI) and not wiretaps of the actual calls.

Thoughts?

[Deviant Ollam]

Re: Court OKs Warrantless Cell-Site Tracking

Note that the decision here is about cell site location information (CSLI) and not wiretaps of the actual calls.

Thoughts?

my thoughts can be summarized in two parts: totally displeased, and totally un-surprised.

we have already eroded the 4th amendment to almost being worthless in a lot of ways in this country. court decisions have been so far-reaching that really the exceptions define the rule now as far as that constitutional protection is concerned.

i have personally never really understood (of course, i'm not in Law Enforcement) how it's such a huge burden on the system for investigators to request warrants... when it seems like they're really rubber-stamped most of the time anyway. the real protection comes when an investigation actually results in an arrest and trial, when the Defense council would hypothetically be able to examine the paperwork and see what sort of false testimony or informant misconduct led to the search of: bank records, phone records, email, and now physical location.

(all of the above are pieces of information that can currently be obtained without a warrant in basically 100% of situations)

so, do i wish that we weren't seeing yet another exception to the warrant requirement? yes.

do i think that it would be right to require police to present some sort of facts in front of a magistrate before grabbing this data? yes.

do i think that in practice a warrant requirement would limit so much as one instance of this type of investigation? no.

sorry if i come across as a bit of a grumpy fellow tonight... between Google launching their most asinine feature yet (the "instant" search which i look forward to skewering with some of you in another thread) and the discovery that my local train system (the PATCO) is operating under police state law (literally, the police chief said on record "we can do anything we want") i'm having a bit of a day.

[Thorn]

Re: Court OKs Warrantless Cell-Site Tracking

i have personally never really understood (of course, i'm not in Law Enforcement) how it's such a huge burden on the system for investigators to request warrants... when it seems like they're really rubber-stamped most of the time anyway.

The short answer is that most of what you've cited are records that are maintained by a third party, such as a bank or phone company. As records, they tend to not be considered evidence of a crime by themselves. Rather, they may give supporting information whether or not a crime was committed, especially if considered in connection with other information,

For example, phone records of Lefty calling Shorty, only shows that they were in communication, and doesn't prove a crime was committed, or that Shorty and Lefty did the crime. Similarly, a record of a deposit of $1,000,000 in a bank account doesn't show the origin of the money, or even who deposited it, just that money was in the account on a given day. Other information, such as the frequency and durations of calls or deposits that are contemporaneous to a theft, may be used to infer indirect information, but again, there is usually no direct evidence of a crime in records maintained by a third party. From a legal standpoint, that's a big deal.

The courts also do not tend to see such records as being private. Generally, the courts' view of such records is closer to being "semi-public" in that the employees of the entity creating and holding the records have access to them, and there is no legal requirement or expectation of confidentiality by those employees. There may be a company policy of privacy, but that usually isn't legally binding in the same way that a doctor's or lawyer's records are private and confidential.

Also, there is a legal process involved, in that the police do have to go to the court and subpoena the records. Requesting a subpoena does tend to be a relatively quick process, in that it merely involves filling out some forms, filing them with the court, and then presenting the subpoena to the to company holding the records. Start to finish, it usually takes less than half a day.

On the other hand, warrant applications tend to be a long, complicated process. The end product of a warrant is (hopefully) direct evidence of a crime, and the search is usually very intrusive both to the privacy of the person and to the physical location involved. Warrant applications also have a much higher legal standard that must be met, in that the investigator must have a reasonable suspicion that the person or place has or is holding direct evidence of the crime, and the investigator must be able to articulate each and every one of the legal elements involved that detail that reasonable suspicion, and how it was arrived.

The shortest application tends to take close to a day to complete before the investigator has the warrant in hand, and I've had the application process take as long as a week from start to finish. Multiple parties from the investigators to the investigators' supervisors, to the Assist State's Attorneys, to the judges themselves all are involved in warrant applications.

As far as "rubber stamping" goes, in my experience, it just doesn't happen. At least here, the warrant applications and the investigator's reasons for the warrant tend to be heavily scrutinized by judges. Even after all the review by supervisors and ASAs, I've still judges who had who had known me for years reject warrants. I've also had them request that a hand-written addendum be attached to a warrant application because they felt that the testimony in the application affidavit wasn't detailed enough to fully support the legal elements being presented, and they wanted more testimony from me before they would issue the warrant.

I can only recall once where a judge even came close to a 'rubber stamp', and that was pretty unique circumstances. The judge had a very strong emotional reaction to one bit of information that was detailed about midway in the affidavit, and said "she (the defendant) [did that action]? I'll sign the warrant!" To his credit, the judge didn't actually sign the warrant until he finished reviewing all the facts in the affidavit.

[theprez98]

Re: Court OKs Warrantless Cell-Site Tracking

I think it's important, especially in cases like this, to re-look at the actual wording of the 4th Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment does not prohibit all searches without a warrant, but just unreasonable ones. Therefore, it is perfectly understandable that there exist some searches that are not considered unreasonable. When a court decides that a search is reasonable, and that a warrant is not required (as in this case), it is an interpretation of that reasonableness standard. Legally speaking, there are limited exceptions to the warrant requirement (i.e., consent, plain view, exigent circumstances), and I would not call this decision an "exception" to the Fourth Amendment, but rather just legal interpretation of reasonableness as defined by the standard in 18 U.S.C. § 2703d:

(d) Requirements for Court Order.— A court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation. ...snip...

Note that the government *did* apply for a court order as required by 18 U.S.C. § 2703d; they didn't just go down to the telco and demand the records. The difference between the court order and the warrant, as Thorn mentioned, is the legal standard required to meet the burden. In fact, if you read the decision, the court found that CSLI records are held to an "intermediate" standard via 18 U.S.C. § 2703 (as amended by CALEA):

It is a standard higher than a subpoena, but not a probable-cause warrant. The intent of raising the standard for access to transactional data is to guard against “fishing expeditions” by law enforcement. Under the intermediate standard, the court must find, based on law enforcement’s showing of facts, that there are specific and articulable grounds to believe that the records are relevant and material to an ongoing criminal investigation.

IMO, I think this is a straightforward interpretation and not an erosion of the Fourth Amendment. To answer Deviant's questions:

so, do i wish that we weren't seeing yet another exception to the warrant requirement? yes.

We can agree to disagree, but I think I've shown that it is not in fact an exception to the warrant requirement, but simply a legal interpretation of reasonableness as defined by the court order process as outlined in 18 U.S.C. § 2703d.

do i think that it would be right to require police to present some sort of facts in front of a magistrate before grabbing this data? yes.

U.S.C. § 2703d requires "specific and articulable facts," I think this is a reasonable in light of your desire to see "some sort of facts."

do i think that in practice a warrant requirement would limit so much as one instance of this type of investigation? no.

Considering the legal standard, this is difficult to say, but burdening the courts with voluminous warrant applications for information that could have easily been obtained via a subpoena or "intermediate standard" court order is certainly something to consider.

[JMC31337]

Re: Court OKs Warrantless Cell-Site Tracking

Well dont get all in a tootsie.. i had a convo witha guy that was accused of stuff and placed into prison. Supposedly this Cell Site Tracking isnt perfectly accurate.. Triangulation is very effective dont get me wrong. But his crime (which isnt a part of this story) was bad enough that they brought it up in his court hearing. He said they could pinpoint his location in a city say the size of Philadelphia but couldnt get the most PRECISE of say 5-50 ft location. So dont be too scared. How often do we lose signal strength because of something say a solar flare?? J/K but theyre not PINPOINT perfect...Now wether or not some high tech counter espionage agency could use a more sophisticated signaling is beyond me but the FBI, nope... Not that perfect at all
Maybe when you stand still.. How often do you drive with GPS enabled and 2 mins before you approach your turn she says turn here, with a big old row of trees next to you

[Deviant Ollam]

Re: Court OKs Warrantless Cell-Site Tracking

couldnt get the most PRECISE of say 5-50 ft location. So dont be too scared. How often do we lose signal strength because of something say a solar flare?? J/K but theyre not PINPOINT perfect

see, i've heard that with a lot of modern tech, the cel tower signal strength triangulation method can be even more reliable than GPS (in terms of faster acquisition of position data) and can be effective down to feed or yards.

[Thorn]

Re: Court OKs Warrantless Cell-Site Tracking

see, i've heard that with a lot of modern tech, the cel tower signal strength triangulation method can be even more reliable than GPS (in terms of faster acquisition of position data) and can be effective down to feed or yards.

That's probably due to the cell density, and that can be very variable. In someplace like NYC, where the cells are mounted on every other building, you may be able to triangulate down to within a yard or so of the actual location, based merely on signal strength, and coverage by multiple cells. On the other hand, someplace like where I live, the nearest cell tower for my provider is about 4 miles away. That's 4 miles in a straight line, closer to 10 if I drive it... Good luck trying to triangulate my exact location using that info. You'd probably be lucky to get little more that the fact that I was within a one-third segment of given cell's coverage.