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back to article Judge bashes warrantless cellphone tracking

A federal magistrate has ruled that information pulled from cellphone towers provides such an intimate portrait of a customer's life that government investigators must get a warrant before obtaining it. The ruling by Magistrate Judge James Orenstein of the US District Court for Eastern New York is a major victory for civil …

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Suspiciously intelligent

Seems reasonable to me. The advance of technology, indeed, does not necessarily in and of itself create changed expectations in users of that technology vis a vis their own privacy. I am glad to see that old and tired precedents such as Knox are being actually scrutinized in these situations, rather than merely given a pass due to their hoary (in legal terms) age. The world changes, and the law must change with it, and recognize that social patterns are not permanent.

On the other hand, I can see that this decision will not stand long before the glare of the current Supreme Court - Roberts and his merry band of reactionaries (I do not say "fascist" - yet - but "conservative" is far too mild) will make short work of this, sharing their vision of the "original intent" of the Constitution that somehow only removes or limits personal freedoms rather than expanding or protecting them, and granting more and more political control to corporations over individuals. (An exception, of course, is in the area of guns, which are doing untold good in preserving the rights of all those shot.) In particular, Scalia will no doubt be outraged that a mere bit of petty pedantry such as the Fourth Amendment could stand in the way of the constant monitoring and recording of all activities of all citizens and non-citizens - for their own good, of course. I have no time for conspiracy theories, but every bit of information that is revealed about the warrantless wiretaps of Americans (and their overseas conversants) tells me that any confidence in the belief of our own governance is fast passing.

IAAL, and I am sick at heart with the direction of so many recent federal decisions regarding individual and human rights in general that even this bit of common sense shines like a clear sun after a rainstorm, no matter how temporary it may prove to be.

There is no icon for mixed emotions . . .

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Hip Hip Hooray!

I love how this is looking. It'll get over turned but I like it for now.

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about time !!

Seems a balanced ruling to me.

Police should not be able to just troll through anyone's location data for no reason. But they can get it if they have cause - a bar that's not all that high (and not infrequently abused, some say).

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Cellphone Position Tracking

"... historical cell-site information gives the government the ability to track users' location each time they make a call or send a text message." Heck, its worse than that. Cellphones stay registered with the nearest tower as you move. Thats the only way the system knows where to ring you for an incoming call. No need to place or receive a call to be located.

At any given moment your location can be approximated by knowing which tower you are closest to. For emergency location purposes government has been wanting even finer details. Spread spectrum algorithms already know how far away you are from a tower. If another can also hear you then the two radiuses narrow your location to one of two positions. If a third tower can hear you then your position is certain. Its the same sort of thing used for GPS, only with cell signals.

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Not entirely true.

The system doesn't always know exactly where you are. GSM knows which (largish - maybe 30-40) group of cells you are in. UMTS has several layers of granularity and depending on how long it has been since your last activity will know within a certain resolution (single cell, small group or large group of cells).

When someone else calls you, you are paged across all cells in the appropriate group.

Cheers, Steve

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WTF?

How refreshing: A judge that bucks the trend AND understands technology

You often get the feeling that judges, especially those in Britain, live on a different planet and haven't a clue what is going on and simply chant the mantra: 'Government does no wrong'.

Cell site data isn't the greatest for tracking where connected cells are, as the SIGNAL is the determining factor as to which cell site is optimal. As most any RF engineer or communications technician can attest to, RF is not cut and dried. TV viewers, using over the air signals, often have to point their antennas in directions that don't make sense, as in not in the direction of the transmitter.

I use a Yagi antenna to bring my weekend residence to within range of a cell site, not the closest one hidden by a small hill but a far more distant one where my antenna delivers a solid signal. This means that Plod could assume I was nearer the distant cell, rather than the closest one which renders cell site info inaccurate.

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The Judge got it wrong - I hope

Surveillance in most modern law systems relies on the 'reasonable expectation of privacy'.

If you put video cameras in the ladies' changing room then you have stepped over the mark of reasonable expectation of privacy. Similarly upskirting.

If you drive down the road you don't have a reasonable expectation of privacy. Anyone can film you, or write notes about you, or follow you. This is also the reason why (often) it is perfectly legal to film police on the street.

Using newly available technology to observe you and track you in public doesn't reduce your privacy - it just makes it a bit easier for the surveiller.

If the judgement becomes established case law then you get into the very sticky area of what can be used or not used in public.

For instance they might then decide that observing a policeman beating the crap out of a 90 year old granny is O.K. but filming with your video phone is not.

In my experience every 'restricting' judgement, or even every special law that sounds good on the surface takes a bit more away from normal freedoms. For instance the plea of self-defence in assaultng a policeman has been removed in some jurisdictions. Sounds good, but the reality is that when you stop a policeman beating the crap out of a 90 yo grannie (self defence also applies to the defense of others) you are commiting a crime.

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Nope, he got it right

You seem to have missed the point that this is not about such data/actions being available, but about the systematic and organised use of it without a warrant in a manner that in the past would have demanded one, and in most cases the public should expect so.

If you film someone in public, that is no big deal unless you then post it on-line, or are doing so as part of a deliberate process of targeting an individual (or group).

Similarly with phones, the fact you are carrying a 'tracking device' that is a by product of wanting to have emergency phone access or business access is NOT an excuse for the tracking data to be made freely available.

Any yes, the police often do have legitimate reasons for access. All the judge is saying as far as I can tell is that the process of accessing such private data should be done with judicial oversight, and not as a trawling process that world+dog can do.

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Why shouldn't it require a warrent?

Given that the police are not allowed to follow you into your own home, or another private premises (including private clubs, land, etc) and that the cell tower information doesn't know what land boundaries are. This sort of activity should be illegal.

Given that by law you are protected from incriminating youself, and (as the judge said) if you want to participate in society, you need to have certain things like a mobile phone. The fact that the police can then look back at the last 6 months records and say - This person fits our pattern therefore he's probably (ok is) guilty, without you even knowing, and then using that information to get a warrant. This should be protected as self incrimination.

And given that this is impersonal, and only proves that your mobile phone went to these locations, the information should be protected.

If the police want to follow someone and get probable cause enough to get a warrant, then this information will become available to them. But first it means that they have to invest some man hours establishing that you frequent these locations, or that you were - in the balance of probability - in this location at this time.

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Stop

You have a very optimistic and very wrong idea about police powers

First; to position myself - I really don't like extra powers for police to track you.

I also really, really don't like laws that can be turned around to reduce your rights as an individual.

Police have a wide range of 'powers' to gain access to just about anywhere, almost on a whim.

For instance they can deem 'in their opinion' you are making an unreasonable noise. Result they can walk right in without warrant and execute searches based on 'evidence discovered while lawfully executing a Police power'

They can walk onto your property because they 'in their opinion' think there may be violence (irrespective of whether it's caused by them entering)

Finally, they can say that you have acted illegally - e.g. murdered someone - and track your movements via cell phone tower locations.

You as British - I assume - are perfectly happy to have your almost every move recorded by CCTV. CCTV exists not to make liveleak or youtube better, but to prosecute individuals after an offense.

Flaunting yourself in front of a CCTV camera bashing a 90yo granny could well be regarded as incriminating yourself.

The law doesn't prevent you from incriminating yourself. It simply uses whatever you do to prosecute you given due cause.

The judgement I am complaing about is one that can stop you defending yourself against the Police. If electronic monitoring is banned, how long before using your cellphone to record an illegal Police act become illegal?

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@Jerry: I think you've missed the point, again.

"The judgement I am complaing about is one that can stop you defending yourself against the Police. If electronic monitoring is banned, how long before using your cellphone to record an illegal Police act become illegal?"

This ruling does not ban authorities from obtaining the data they need.

It only requires them to demonstrate reasonable cause of their need to a judge.

Search warrants aren't exactly hard to get if you can show cause so all this does is stop law enforcement trawling through peoples data on a whim.

I applauded this decision as it will make the authorities do their jobs and obtain some evidence before they spy on people.

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Re: The Judge got it wrong

Jerry,

You do realize that cell tracking could provide information about where you were on "private" property that is not visible to the public. This ruling only says that the police need a warrant which as others have pointed out, is usually not that hard to get.

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Good ruling.

If the police want to follow you around in person that's fine. Its an entirely different matter when they are asking your cell phone company to hand over records without a search warrant, or when they want to enter your property and place a GPS device on your car.

If they have a good reason to be spying on you then they can tell it to a judge and get an actual warrant.

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Cell phone tower data is "like" physical surveillance of the subject.

Except it's not.

It's *really* not.

*no* permanent staff need to be assigned (makes staff planning a snap)

*no* limits on how many can be tracked (in principle).

Depending on the level of cell phone cooperation with authorities (high is most cases I'd say) this allows a fairly small team of people to watch a *lot* of people with (effectively) *no* oversight of who or why. why sit in a car when you can be texted when your suspect kidnapper/armed robber/drug dealer/suspiciously mobile spouse is on the move?

That sounds like it needs regulation.

BTW The implication that "He's already under investigation" but we don't want to put actual *people* on him says a lot about *either* the state of funds for this or the *belief* he's actually a serious criminal and not one of the small fry. You decide which.

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What's wrong with these people?

The judge made the right decision. But what's wrong with these people (both a few posters, and police themselves) that think being able to do all this stuff without warrants is at all appropriate. If *I* tracked *them* that way I'd probably be thrown in jail as a stalker.

Just get the warrant -- the provide a safety valve in terms of some judge having to agree the warrant is justified. And, they also provide a paper trail so if police start pursuing inappropriate warrants (they are human after all) they can be told not to do that, instead of being free to do it with no accountability or paper trail whatsoever.

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Anonymous Coward

Wait...what?

“Simply put, there is no reason to think that the advance of technology brings with it an expectation that privacy is lost,” he wrote. “Rather, I assume that it serves only to increase awareness of the importance of privacy and to whet the appetite for ways to manage it.”

This was an American Judge? And he's still breathing? My ghast...it is flabbered. I thought this sort of thing was outlawed. Google/TLA Government agencies/Megacorporates/Advertisers/whathaveyou own us, don't they? Aren't we chattel/indentured servants/walking wallets?

Wait, what’s the year? 2010…Oh, I jumped back five years too far. Ignore the comment and carry on with your day…

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