back to article Get outta here, officer, you don't need a warrant to track people by their phones – appeals court

A US Court of Appeals has ruled that police do not need a warrant to track the whereabouts of a person's mobile phone. The Fourth Circuit Court of Appeals ruled [PDF] that police in Baltimore did not violate the Fourth Amendment rights of two suspected robbers when they pulled the phone location data of the men from their …

  1. Herby

    Can you keep a secret??

    So can I!

    So I won't tell you anything. Third parties are dangerous.

    p.s. Note to bank robbers: turn off (like completely) your phone when doing an illegal activity.

    1. Yet Another Anonymous coward Silver badge

      Re: Can you keep a secret??

      So does this apply to mail I turn over to the post office?

      What about bank transactions, mobile phone calls, web visits?

      There is very little I do that doesn't involve a 3rd party

      1. matt g

        Re: Can you keep a secret??

        Short answer: no.

        Longer answer:

        In the US the address on the envelope is considered fair game, I think, but not the contents of the letter. No idea about postcards.

        The content of phone calls are not shared with the phone company - they're just dumb pipes for this conversation. The date, duration, and number dialed - well, that's the on going post Snowden debate. There are also extra protections than just the 4th amendment - omnibus something or other safe streets act:

        https://en.wikipedia.org/wiki/Third-party_doctrine

        has more.

        I'm also sure that financial transactions get even more protection, and

        https://en.wikipedia.org/wiki/Electronic_Communications_Privacy_Act

        confirms that - I think that should be read that even with a court order for intercept, you cannot record financial transactions (i.e. it would not be in scope of a warrant).

    2. Myvekk

      Re: Can you keep a secret??

      "Who are you?"

      "I'm the butler, sir."

      "And what do you do?"

      "I butle, sir"

      1. dmacleo

        Re: Can you keep a secret??

        heh heh sorry had to....

        https://www.youtube.com/watch?v=KJ8fI3L3VW4

    3. ralphh

      Re: Can you keep a secret??

      Then place your phone in a Faraday cage. And leave it at home.

      Alternatively, forego the illegal activity.

      1. Fungus Bob
        Trollface

        Re: @ralphh

        "Alternatively, forego the illegal activity."

        Now where's the fun in that?!

    4. Anonymous Coward
      Anonymous Coward

      Wrong note to bank robbers

      Leave your phone at home (or wherever your alibi would put it) and if you must have a phone during the robbery use a burner phone that you destroy and dispose of after the robbery.

      Then have your lawyer use discovery on the prosecution to see if they've checked your phone's location, and if they have they will be forced to admit they found your phone's location matches your alibi. It'll look bad to the jury that they looked at this and tried to keep it quiet when it didn't match their accusation, and when your lawyer can point to successful prosecutions using the phone's location your lawyer can say something like "so the prosecution would ask you to believe that your phone's location can prove a man's guilt, but not his innocence?" and that will go a long way with the jury even though it is faulty logic.

      Enough criminals pull this and pretty soon the prosecution will be afraid to try to seek your phone location data.

    5. Anonymous Coward
      Anonymous Coward

      Re: Can you keep a secret??

      A far better approach is to leave your phone (switched on) at home. At least any attempt to use the phone location information would give you some plausible deniability.

    6. Trigonoceps occipitalis

      Re: Can you keep a secret??

      "turn off (like completely) your phone"

      If you can't remove the battery how do you know off is off?

      1. Vic
        Joke

        Re: Can you keep a secret??

        If you can't remove the battery how do you know off is off?

        I have a van...

        Vic.

    7. ecofeco Silver badge

      Re: Can you keep a secret??

      p.s. Note to bank robbers: turn off (like completely) your phone when doing an illegal activity.

      No, you have to take the battery out. Seriously. A cell phone is ALWAYS on standby for transmitter location as long as there is power. Always.

  2. Bumble Bee

    "he"

    Note carefully the language:

    "For the Court has long held that an individual enjoys no Fourth Amendment protection 'in information he voluntarily turns over to [a] third part[y]'," the judges said in their ruling.

    Nothing is gender-neutral in the red-light district: a girl is always entitled to her privacy.

    1. Aging Hippy

      Re: "he"

      Not sure about the US but in the UK "he" was the gender neutral form at least up to the 1960s and so is found in many old books and legal documents. This was ingrained into all junior school pupils and still gets me into trouble today.

      It changed with the feminist campaign to remove the string "man" from all words in the English language. In this case "he" wasn't replaced by anything leading to the cumbersome "he or she", "she or he" or worst of all just "she" which implies "female only" in the old language. It's even more difficult not having a catch-all now that some people don't consider themselves he or she.

      If in doubt read a 1950s edition of "First Aid in English", the bible for junior school pupils to learn how-fer tawk proper.

      1. Sirius Lee

        Re: "he"

        Yes we do have a gender neutral nominative pronoun: 'one' which, of course, is derived from the French gender neutral pronoun 'on' which we used in verb conjugation in every French lesson at school. As in "one went to the shops'. It is correct and can be used whenever a gender specific nominative pronoun he or she might be used.

        But this pronoun has committed an even more heinous crime in Britain history than being sexist: it was used by the educated and upper classes! Because of the ingrained class wars in Britain, if anyone uses the pronoun 'one' today they sound like a pompous ass and definitely not right-on working class (shudder). Think Jacob Rees-Mogg.

        However, we don't have gender neutral objective pronoun. 'Lock him/her (or her/him) up!' 'Lock it up!' doesn't work. 'Lock 'em up!' implies more than one person.

        1. Alien8n

          Re: "he"

          When Jacob Rees-Mogg asks a girl out does he ask "would one like to give one one?"

          1. Vic

            Re: "he"

            When Jacob Rees-Mogg asks a girl out does he ask "would one like to give one one?"

            That rather supposes that Jacob Rees-Mogg would ask a girl out. I suspect he might assign such a task to his nanny...

            Vic.

        2. Vic

          Re: "he"

          Yes we do have a gender neutral nominative pronoun: 'one

          Whilst that is true, it does not replace the pronoun "he"; it very much refers to the person speaking[1], which is why (these days) it is usually replaced with "I".

          Vic.

          [1] It doesn't *explicitly* mean the person speaking; there is some semblence of doubt as to the exact reference, which is probably why it is so often used with a subjunctive verb.

  3. Ian Michael Gumby
    Boffin

    The judge got it right.

    Ok, I'm sure I'm going to be down voted to hell, but here goes the explanation...

    The location data is metadata and its required for your cell phone to work. So there is no expectation of privacy since its shared with a third party. Also the data is really owned by the phone company.

    This is actually grounded in a late 70's SCOTUS decision which dealt with warrant-less searches and pen taps. (capturing metadata of phone calls the hard way)

    So there isn't any expectation of privacy since it really is the location of your phone and not you.

    I know its weird, but its the law and you really need a couple of pints to wrap your head around it.

    1. kain preacher

      Re: The judge got it right.

      Except for there is president stating that you need a warrant for the meta data.

      1. Ian Michael Gumby

        @Kain Re: The judge got it right.

        Obama?

        He's dead wrong.

    2. redpawn

      Re: The judge got it right.

      Meta data alone is more intrusive than a body search these days. I don't think the framers meant that because a third party might be spying on you 24/7 that they could be automatically be required to supply information about you without a warrant.

    3. mr.K

      Re: The judge got it right.

      It is one of the symptoms that congress as a law making body is utterly broken and has been for a long time. If it has worked as intended these types of cases would be much less important since if they court ruled another way than people think it should they would just change the law. (as the court itself points out should be considered here) So the outcome of the case should be a mere technicality. As it is now, at least to the outside observer, it so easy to block your law making body that it is very hard to get things done, and with the consequence that other bodies start to fill the role that congress should have.

  4. Anonymous Coward
    Anonymous Coward

    So how was Safe Harbour ever considered valid?

  5. Raumkraut

    You are free to do as we tell you

    "For the Court has long held that an individual enjoys no Fourth Amendment protection 'in information he voluntarily turns over to [a] third part[y]'," the judges said in their ruling.

    Can it really be considered "voluntary", if the alternative is essentially cutting yourself off from a large part of modern life?

    These days, to many segments of society, it seems somewhat akin to cutting yourself off from the electric grid, and going back to cooking beans with a bicycle-powered hair dryer.

    1. Eric O'Brien

      Re: You are free to do as we tell you

      Speaking of electricity... when you have a smart electric meter installed by the power company, is the minute to minute tracking of your precise electricity use "information divulged voluntarily to a third party?"

      1. ecofeco Silver badge

        Re: You are free to do as we tell you

        It would seem so. Even though you never had a choice.

    2. Vic

      Re: You are free to do as we tell you

      going back to cooking beans with a bicycle-powered hair dryer.

      I thought that was an egg...

      Vic.

  6. Ed_UK

    What about StingRay?

    We have read here how use of base-station simulators like StingRay to track a suspect's mobile now require a warrant (depending on jurisdiction). E.g.-

    http://www.theregister.co.uk/2015/10/09/california_warrant_brown_signed/

    "California has passed a law requiring police to obtain a warrant before searching phones, tablets, and other electronic devices, [...]

    This even includes Stingray devices ..."

    Does this new ruling that a warrant is _not_ required overturn part of the California ruling?

    Also http://www.theregister.co.uk/2015/09/04/stingray_stung_fbi_told_get_a_warrant/

    "The US Department of Justice has moved to quell the ongoing row over the use of IMSI-catchers like Stingray, with a new policy that requires a warrant before they're deployed."

    I'm an engineer, not a lawyer, but this interests me.

    1. banalyzer

      Re: What about StingRay?

      Not only am IANAL I'm not a US one either ...

      I think it breaks down like this.

      The third party they reference would be the service provider for your phone. The one you pay vast sums to so that you may call anyone you wish.

      To provide the service, they require your location data. So you allow them this voluntarily otherwise it doesn't work.

      Your phone company is now the third party that is referenced and is required to hand over the data if it is available, thereby providing an end run around the 4th.

      You don't pay to connect to a Stingray device, so it is not your provider.

      You don't voluntarily hand your data over because you don't know it's there, you could argue that this data has been 'stolen', at the very least misappropriated.

      Stolen or misappropriated evidence is a no-no in the US hence all the fuss over 'parallel construction'.

      So finally, to make this data court valid requires a warrant.

      It's likely that it has always required one but it takes a while for any legal system to wake up and smell the coffee.

    2. kain preacher

      Re: What about StingRay?

      No. The stricter law always wins out unless the stricter law is over turned. The judge made that ruling because in that state it does not have the a strict law that California does.

  7. Sproggit

    What About Privilege?

    Does anyone happen to know if the ruling is a blanket statement or narrow in effect? Specifically, if the ruling were applied as it is written in this article, then the en banc review just found that client-attorney privilege is not protected from a warrantless search by a duly authorised law enforcement officer.

    This is one of those relatively infrequent events where a ruling that could be used to set case law can, on the face of things, look to upset other, established, legal principles.

    Given that appeals rulings are considered powerful arguments in case law - i.e. they are illustrations that one legal team can use to influence a court if they think the ruling favours their point of view - it is critical that the scope of the ruling is appropriately defined. Even if a complete overturn of the ruling is unlikely, don't be surprised to see another appeal here. If the ruling is written as loosely as the article hints, well, that would be bad.

  8. Aodhhan

    Makes perfect sense

    You're phone is sending out breadcrumbs when talking to cell towers; essentially leaving footprints. Just like footprints in dirt, the police don't require a court order to follow them.

    So while they're able to follow this, it doesn't allow them to actually search the devices without an order.

    It's amazing how people love to shout out the obvious, "leave the phone at home", or use a one time phone, etc. As if they're the only individual who can provide this secret information. Then there are those who get a little bit crazy.

    Yet... I wonder how liberal they will be on this once they become a victim. Karma is a B.

  9. Velv
    Big Brother

    Now let's turn the ruling over metadata on its head and see where we get to...

    "Dear Mr Phone Company.

    Please give us the details of all phones that were within 50m of nn.nn.nnn, ww.ww.www on mm/did/yy* between hh:mm and hh:mm.

    Regards

    The Authorities"

    *its an article about Merkin authorities. We all know the real way to express a date is dd/mm/yy

    1. FredBloggs61

      "dd/mm/yyyy" FTFY

    2. Ken Hagan Gold badge

      yyyy/mm/dd

      You have to use a 4-digit year or else some numpty will confuse "16" with a day. Having done that, your choices are endian-ness. Putting the year at the end still leaves everyone guessing which side of the little pond you mean. However, as far as I'm aware, no-one uses yyyy/dd/mm, so by putting a 4-digit number at the front, everyone knows what you mean.

      (If there is anyone out there using yyyy/dd/mm, please stop.)

  10. ecofeco Silver badge

    Voluntarily?

    "For the Court has long held that an individual enjoys no Fourth Amendment protection 'in information he voluntarily turns over to [a] third part[y]'," the judges said in their ruling.

    How did they have a choice? I guess by not owning a cell phone, eh? Because there is NO opt out clause I'm aware of by any cell phone company. (not saying there may not be one, just that I've not heard of anyone given the choice)

    Does anyone know more about this?

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