It's obvious why law enforcement officials would sometimes want access to things like GPS data embedded in "enhanced 911" service and other location-tracking functions cell phone providers are increasingly selling. Indeed, it's also obvious why judges would sometimes grant law enforcement officials' requests to look at that data. But why on earth would anything about the availability of this information lead anyone to decide that there's no need to establish probable cause.
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9/11 Changed Everything
23 Nov 2007 10:04 am
Comments (9)
Owenz,
Great point,you reminded me that it was just on just this issue that Dershowitz got Claus Van Bulow's conviction thrown out:
Alan Dershowitz succeeded in overturning Claus Von Bulow's conviction for attempting to murder his wife by arguing that state police had violated the Fourth Amendment when they failed to secure a warrant before sending a powdery substance found in a black bag owned by Von Bulow to a police laboratory. The powder -- which turned out to be a hard-to-obtain barbiturate -- was taken from a locked closet by a private detective hired by the Von Bulow children and turned over to the police. With this key piece of evidence excluded, Von Bulow was acquitted at a second trial.
http://www.spectator.org/dsp_article.asp?art_id=9239
Now personally I think the court was wrong in that case. The police didn't ask the Von Bulow children (or rather step-children, IIRC) to search the house and hand over the evidence, the kids did it on their own. It would be different if the state had independent contractors collect the information (like the Federal Communications Communication requires carriers to track E911 information) and then directs them to hand over the evidence (the Federal Bureau of Investigations demands a cell carrier provide E911 location info on a customer). In that situation, the "independent contractor" is acting as a state agent and a probable cause warrant should be required.
Justice Department spokesman Dean Boyd really does think we're idiots . He acknowledges needing a warrant to track in "private areas not accessible to the public". Nice micro-concession. So if you're in your home, they won't track you from room to room. But once you're in a public area (any street, sidewalk or other building--at least to its doorstep), they're free to track you without showing probable cause.
Oh, and I love how he hackishly threw in the "lives in the balance/child abduction argument". Every cop and lawyer in America knows a warrant is never needed in that situation. http://en.wikipedia.org/wiki/Exigent_circumstance
The 4th only protects from unreasonable searches.
There are 33 some areas of exception in America determined by legislatures and court review to be reasonable. Many predicated on public interest and the premise that privacy from search by probable cause is not to be expected in public spaces like when crossing Borders and being subject to Customs and LEO inspections.
Too many Americans have been habituated into thinking that the 4th is absolute protection in any circumstances. That only a lawyer dressed in robes may allow a city fire safety inspection by warrant, dogs to sniff your car at the SD-TJ Border, or a cop to check out a man of gas going on a subway to verify it's oxygen.
Looks like another area of exception by virtue of being an electronic communication like a credit card transaction happening outside the home. And a reasonable tool to fish for perps when a specific ID of a perp is not known....There is nothing wrong with a fishing expedition when you don't have probable cause to believe specific ID'd fish will be caught, but high confidence that the fish exist and could be caught.
As in, obtaining a log of all cell phone activations or E911 signals not tracking 65 MPH but stationary in a vicinity of 500 feet from where a woman's body was dumped off a highway in the woods within the last 3 weeks....
Or near point of origin of a wildfire that consumed 39,000 acres of land in California and wiped out 1/3rd of an endangered species habitat.
Or if any of the 87 dangerous Level 1 sex offenders in the city showed their cell phone signals stationary near or at prohibited schools zones and amusement parks in the last two months..
Or rioters and arsonists that have learned to coordinate their gangs in places like Paris in the 2006 summer of burnings with cell phones and text messages to converge on targets, rapidly disburse, rally for new mayhem. Within a month, France had figured out the counter-technology of the new rioter's tactics and were on to them. Summer of 2007 was pretty quiet in France...
All in all, a great new law enforcement tool that will be the downfall of many a thug.
So, another headline for the Wapo story could have been, "Bush Justice Department Advocates Probable Cause Requirement for Surveillance of Location Tracking Data" ?
But wait, aren't these the people who are determined to shred the Constitution?
Sure, if you mean a Probable Cause Requirement for Surveillance of Location Tracking Data Location "in private area not accessible to the public".
They only throw this bone to the Constitution because Scalia's majority opinion in the Kyllo case had already forbidden electronic monitoring, of a suspect in his home, without a warrant.
"We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical "intrusion into a constitutionally protected area",(Silverman, 365 U.S., at 512), constitutes a search-at least where (as here) the technology in question is not in general public use."
http://www.erowid.org/freedom/courts/supreme/supreme_case2_comment1.shtml
Somebody's data mining Chris Ford's sewer runoff to determine what drugs he's on.
He'll think that's ok until they convict him on it.
Face it, morons like Ford think any degree of fascist statism is fine because they expect to get a job somewhere in the state doing the coercion.
Or they already have such a job. Ford's probably a correctional officer somewhere. That would explain the lack of intelligence. There's nothing dumber than a correctional officer. They make military people look smart.
The Wapo article has a throwaway line to the effect that a judge, who denied several illegal surveillance requests, would only speak on condition of anonymity.
What? Since When? Does this not bother anyone at all?
Evidently, the Constitution is further gone than I imagined. The Judiciary is supposed to be independent. If judges afraid of retribution for speaking out against the Administration, then the Constitution is no longer protecting judges from political interference.?
That means the law is just a formal nicety, to put a veneer of legitimacy on whatever the President feels that day.
We are more like Pakistan than WaPo dares contemplate.
Jalmari: Aren't you taking that argument a little too far? The judge could have requested anonymity for any number of reasons. For example (though this is hardly the only one), the judge could have done this to ensure that federal agents don't avoid him/her when requesting a warrant. Your leap to a conclusion is a little stretched there.
More generally, a few points/questions:
1. Just to clear the air, cell phone companies aren't providing records for these cases w/o probable cause, so that much is secure. Also, the warrant is still a prerequisite for cell phone tracking - it's not on the level of warrantless wiretapping. However, the lack of a "probable cause" standard is a cause for concern.
2. The federal/state boundaries of these cases seem uncertain. If it's a federal crime (i.e. crosses state lines), then obviously it'd be a federal official requesting a warrant for tracking. If it's a local crime, is it possible for the state officials to request a warrant of this sort? Otherwise, it seems a little suspicious, as has been noted, that these cases are almost exclusively federal. Then again...in a local (thus small) area, would they really need such a tool?
3. If you're in a public place, doesn't the police officer have the right to follow you around without a warrant or anything? For example, isn't that what police do on the road? I understand that there's a bit of a difference between a highway cop wandering around the highway and cops on your tail whenever you're in a public place to make sure you aren't breaking the law, but where is this difference spelled out in the law itself?
4. It seems, therefore, that the main point of conflict would be police using this cell phone tracking for people in public areas. Would it then be reasonable to write that difference into law, such that police can track you while in a public place without probable cause but have to obtain a warrant with probable cause for private areas? Chris Ford provides one idea here: restricting the warrant to a certain cell phone in a certain area (or perhaps just to a certain area), determining what standard of evidence applies to that area and requesting the warrant accordingly.
A state judge can permit state or local police to electronically monitor a subject, but is still restricted by the US Constitution (as well as state Constitution requirements if they're more restrictive).
A practical limitation on tailing suspects is the manpower and expense involved. On the other hand, there is little additional effort involved for the police to track via cell phone 10 suspects or 100 suspects.
What's more, putting a tail on a suspect only runs forward from when the detail starts following him. In contrast, a cell phone is like a time machine, if the carriers archive their network records (and presumably they do since you get an itemized cell phone bill every month), the government could track where the suspect has been in the past.
What Chris Ford is talking about isn't tracking a suspect, its simply the police questioning someone who'd been in the vicinity of a crime scene. Its a perfectly acceptable procedure for police to canvass a neighborhood to find witnesses.
So the government could pull cell carriers records to find every person in the vicinity of the crime scene to question them-- if only to ask what they saw. If the witness gives suspicious answers and/or has a criminal record, the cops are in a good position to get a judicial warrant to start tracking the whereabouts(backward and forwards) of the witness/suspect.
It was by a similar process (canvassing drivers who'd received parking tickets in the vicinity of a crime scene) that the police caught The Son Of Sam.
Comments closed December 07, 2007.
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Heads in the Sand
It's an extension of a precedent we've been seeing across the spectrum of privacy cases.
The theory is pretty straight-forward: if you consent to your activities being tracked by private actors, the government can request or purchase the information from those private providers without violating the Fourth Amendment. The general idea being that you voluntarily gave up your presumption of privacy by consenting to the private surveillance.
Courts ignore that this turns private companies into independent contractors for the government: the companies monitor, compile, and sell information to the government that the government could not compile on its own without violating the Fourth Amendment. In the case of large data mining companies, the transaction is nearly transparent. Their largest client is the government and their business model centers around compiling, organizing and selling "consumer information" to the government that the government cannot collect on its own.
With constitutional protections continually being eroded down by the conservative federal judiciary, the clearest remedy is statutory. Congress should pass a law declaring that the government must meet the probable cause standard to get this information. Concurrently, Congress should pass a law criminalizing the sale of such information to the government.
Posted by owenz | November 23, 2007 10:54 AM