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The Government Can No Longer Track Your Cell Phone Without a Warrant

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  • FP? (Score:5, Informative)

    by dosius (230542) <bridget@buric.co> on Thursday June 12, 2014 @08:09AM (#47220891) Journal

    Doesn't mean they won't keep doing it anyway.

    • Re:FP? (Score:4, Insightful)

      by Thanshin (1188877) on Thursday June 12, 2014 @08:35AM (#47221071)

      It's a misleading title.

      It should say: "The government is expected to no longer track your cell phone without a warrant, by very naive people."

      • Re:FP? (Score:5, Insightful)

        by CastrTroy (595695) on Thursday June 12, 2014 @08:40AM (#47221107) Homepage
        The wording from the summary is more clear

        cannot use cell phone location data as evidence in a criminal proceeding without first obtaining a warrant

        So they can't use the tracking data as evidence, but if they use the tracking data to find it where you are, and then sent out some agents to see what you were up to, and found other incriminating evidence, they could present that evidence in court. They could always just say they happened to be in the area. Just the data of you being somewhere probably wouldn't be compelling evidence on it's own anyway, so there probably isn't much of a need to present your cell phone location as evidence if they have real evidence anyway.

        • Re:FP? (Score:4, Interesting)

          by Shakrai (717556) on Thursday June 12, 2014 @08:45AM (#47221131) Journal

          but if they use the tracking data to find it where you are, and then sent out some agents to see what you were up to, and found other incriminating evidence, they could present that evidence in court.

          No they can't. Google fruit of the poisonous tree.

          • Re:FP? (Score:5, Informative)

            by Anonymous Coward on Thursday June 12, 2014 @08:55AM (#47221209)

            No they can't. Google fruit of the poisonous tree.

            Google parallel construction.

          • Re:FP? (Score:5, Informative)

            by gstoddart (321705) on Thursday June 12, 2014 @09:09AM (#47221319) Homepage

            No they can't. Google fruit of the poisonous tree.

            And then google "parallel construction", which is designed to side step the whole poisonous tree and pretend like it never happened.

            In other words, it's a strategy of law enforcement to lie about the origins of a case so they can use illegal or flimsy evidence to prosecute you anyway.

          • Re:FP? (Score:5, Informative)

            by RockClimbingFool (692426) on Thursday June 12, 2014 @09:44AM (#47221571)

            See this Slashdot Story [slashdot.org].

            The Supreme Court has already ok'd anonymous tips to police as grounds for stopping a searching without a warrant. So what happens is that they track you illegally, someone calls in an anonymous tip and you are arrested with the contraband they already know you have.

            So while the constant tracking is illegal and can't be entered into court records, they will still do it. If you haven't noticed, police departments across the country are acting more like the DOD everyday. They classify things as secret and inaccessible to FOIA requests. When parts of the machinery get close to disclosure, the Feds come in and swoop it away, like what happened recently with the cell tracking device usage records.

          • Re:FP? (Score:5, Informative)

            by mellonhead (137423) <slashdot AT swbell DOT net> on Thursday June 12, 2014 @11:43AM (#47222511) Homepage Journal
            Riiiiiiiiiiiiiiiiight...

            http://www.reuters.com/article/2013/08/05/us-dea-sod-idUSBRE97409R20130805/ [reuters.com]

            U.S. directs agents to cover up program used to investigate Americans

            Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin - not only from defense lawyers but also sometimes from prosecutors and judges.

            The undated documents show that federal agents are trained to "recreate" the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant's Constitutional right to a fair trial.

          • by Minwee (522556)

            No they can't. Google fruit of the poisonous tree.

            Google "Prove it".

        • by thaylin (555395)
          The problem would be probable cause. If they could show the agents were patrolling the area and noticed something sketchy going on, without having that data, then they may be able to do that. If they say they were there to just see what you are doing then no.
      • Re: (Score:3, Insightful)

        Why can't I mod posts "depressing but true?"
      • Re: FP? (Score:3, Interesting)

        by Anonymous Coward

        What is more misleading is everyone's misunderstanding of the federal circuit courts; their rulings only apply to the states within the circuit. It really should say:

        "The government can no longer track your cellphone without a warrant--in Florida, Georgia, and Alabama"

    • by Anonymous Coward

      Precisely. After all, the NSA's systems are too complex to obey the law. [slashdot.org]

    • by Anonymous Coward
      It's still a step in the right direction. Only a million more left.
    • Re:FP? (Score:4, Informative)

      by NotDrWho (3543773) on Thursday June 12, 2014 @08:38AM (#47221097)

      No, this just means that if they catch anything on you when they're monitoring everything you do, then they need to:

      a) Get a retroactive warrant, which the FISA Court will happily provide them with no questions asked, or
      b) Trump up some fake charges and detain you indefinitely, or
      c) Fuck it, the first two are too hard, just send in a drone strike.

      • by TheCarp (96830)

        > b) Trump up some fake charges and detain you indefinitely, or
        > c) Fuck it, the first two are too hard, just send in a drone strike.

        Why is it too hard? If they can detain you indefinitely without trial then it doesn't matter what the actual charges are since the court is where they get evaluated. It is an expression that is never evaluated. Its the if clause after the return statement.

    • Re:FP? (Score:4, Insightful)

      by gstoddart (321705) on Thursday June 12, 2014 @09:06AM (#47221299) Homepage

      Well, it means they'll need to do more "parallel" construction to hide the actual source of this, and further undermine the concept of the justice system where you get to see the evidence against you.

      They will just have to be more creative in how they go about these things, so that nobody knows they're doing the illegal stuff.

    • by penguinoid (724646) <spambait001@yahoo.com> on Thursday June 12, 2014 @11:29AM (#47222431) Homepage Journal

      The court declared that it's a violation of your fourth amendment rights if they present warrentless cellphone location data in court. Apparently the fourth amendment is just fine with them collecting that data so long as they don't use it in court, because using information in court is what a search is all about.

    • The difference is now that there's an explicit ruling, anyone doing so can't cry about the lack of clarity. Someone would have to take the fall. Sure, cops violate personal residences without warrants all the time and probably even listen in on phone calls, but that evidence is inadmissible and grounds for getting a case thrown out and convictions overturned. I'm not naive enough to expect this ruling to be followed absolutely, but anyone who violates it knows that either they or a lackey is going down.

  • by Anonymous Coward

    That doesn't mean they're going to stop tracking people, they just won't be able to use the data in court.

    RN

    • That doesn't mean (Score:5, Informative)

      by Anonymous Coward on Thursday June 12, 2014 @08:37AM (#47221083)

      They actually have a name for it now, "Parallel Construction". Its where they use illegal evidence to locate a suspect/evidence, then they use some excuse (traffic stop, low level crime, etc) to search the suspect, and then lie/"forget" about where the initial information came from. An example is using illegal phone, email or internet taps to find a suspected drug runner, then pulling over that person when they're out driving to search their car for any evidence.

  • by Anonymous Coward

    We'll see what the Supreme Court has to say on the matter once it gets to them.

  • by Anonymous Coward on Thursday June 12, 2014 @08:14AM (#47220931)

    Just because an appeal court judge rules that the government can not do something it doesn't mean that the government will oblige to that ruling

    The Obama administration is no longer bound by any law, nor the Constitution of the United States - they can overstep anything and overrule anything

    They can lie to the congress and get away with it

    They can set terrorists free without having to consult the congress, or the courts

    The Obama administration does not care about any judge / court / law, because to them, they are ABOVE IT ALL !

    • by cdrudge (68377) on Thursday June 12, 2014 @08:39AM (#47221099) Homepage

      You keep saying Obama administration. It's not one president's or even one person's doing. It's a collective effort of many people across many administrations and congresses.

      • by Anonymous Coward

        But when Obama came into office, government institutions that had gone rogue and off practices allowed by the U.S. constitution had to fear that a constitutional scholar would rein them in.

        So they were divided and fearful.

        Now they are united and reckless.

        It's similar to the transition from the Weimar Republic to the Third Reich. There were conflicting interests while president Hindenburg was still alive and more than one force in power. When there was only one and gave the goahead, all the bad guys united

      • by Anonymous Coward on Thursday June 12, 2014 @09:44AM (#47221567)

        You keep saying Obama administration. It's not one president's or even one person's doing. It's a collective effort of many people across many administrations and congresses.

        While you're technically right, it would only take 1 sitting president to stop it.

        Coincidentally, we currently only have 1 sitting president.

        So, when is he going to stop it?

        • When it's to his benefit.

          Given the intransigence of the Congress that will be uh... when the next President is sworn in.

        • A President cannot control what everyone in the Executive Branch does. A public statement could change military operation, since he in CiC. But he is not going to tell the FBI, CIA, NSA, IRS, EPA,or any other group what they can't do, unless they tend to agree already.

          One person cannot change how the branch operates. They have their own mandates and charter and whatnot to determine what they do, but laws restrict how they do it.

          Method is determined by a legal opinion stating something is legal, and Presiden

          • by JimFive (1064958)
            You do realize that the President is the Chief Executive, the head of the Executive branch of government. That is the president's primary role, even before that of Commander in Chief. While it is true that he cannot "control what everyone in the Executive Branch does" it is his job to set and communicate the guidelines for how they do their job.
            --
            JimFive
            • You basically said "you are right, but here are some weasel words".

              I do realize that the President is Chief Executive, but bound by the powers granted him. He is bound Constitutionally by this oath: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

              If by "faithfully" you mean that anything he asks of the Executive branch is automatically okay, a

    • Hilarious that you think mere elected officials and judges have actual control over the NSA. Pop quiz: how many DNIs have ever been fired for lying?
  • by Anonymous Coward

    It should also be illegal for the government to COLLECT the metadata without a warrant, nor should they require providers to store such data for later retrieval.

  • by DoofusOfDeath (636671) on Thursday June 12, 2014 @08:23AM (#47220991)

    IANAL by a very long shot, so let me ask a bunch of others who think they are ;)

    If someone charged with a crime is eventually convicted on appeal, even when the law was unclear to start out with, that person is treated as though he should have always been able to anticipate the court's eventual decision.

    Does that logic not apply here as well? Can't everyone who was once convicted in trials where this kind of evidence was used, appeal their conviction now?

    • Re:Legal question (Score:5, Informative)

      by nomadic (141991) <nomadicworld.gmail@com> on Thursday June 12, 2014 @08:32AM (#47221055) Homepage
      Not really; the exclusionary principle is based on the premise that the courts will punish law enforcement for knowingly evading their constitutional responsiblities by not letting them use whatever evidence they wrongfully obtained. Until binding precedential caselaw is established, law enforcement can be considered to not have known they were required to get a warrant before, so any evidence before that point would not be excluded.

      For example, the cops generally need a warrant to enter your house to search for drugs unless an owner grants permission to the search. If you're staying over at my house while I'm away, the cops ask you for permission to search the place thinking it is your house, and you say yes, anything they find is admissible because they had a good faith belief they were conducting a legal search.
      • Well, the wording sounds pretty good:

        "The obtaining of that data without a warrant is a Fourth Amendment violation."

        But it doesn't sound like that affected the case at all.

        This has to be the crappiest precedent ever. IANAL
      • But doesn't that lead to a violation of due process, which in turn would invalidate any undesirable (to the defendant) verdict?

        • by nomadic (141991)
          Well unlawful searches would be a violation to due process, the question then becomes what's the remedy for that? I think we're so used to the evidence exclusion rule that we tend not to realize that's just one way to "fix" the problem. You can do criminal charges against the police, or you can do civil damages.

          The counterargument against excluding evidence is: you committed a crime; this evidence shows it. Why should you get off just because the police did something wrong? That didn't magically make
      • by Bob9113 (14996)

        If you're staying over at my house while I'm away, the cops ask you for permission to search the place thinking it is your house, and you say yes, anything they find is admissible because they had a good faith belief they were conducting a legal search.

        A while back, I left my house and accidentally left my overhead garage door open. The door that leads from my garage to my house is usually unlocked, and it was that day. When I didn't return for a couple hours, my neighbor across the street grew concerned an

        • by Obfuscant (592200)

          knowing the crime rate in my area, I would prefer to accept the risk of criminal intrusion than the violation of privacy.

          The police weren't interested in "criminal intrusion", they were doing what is called a welfare check. Your neighbor saw something odd, something you'd never do normally, and called the cops to come check on you.

          There are stories every so often of a reclusive person being found dead, one I recall was after six months, in their house. They die and nobody notices that there isn't any activity. You could have opened the door, gone back inside to get something you forgot, and then had a stroke.

          Suppose a person in such a situation posted a sign on the door from the garage to the house that said, "Notice By Owner: I do not consent to any searches of these premises for any reason."

          Exigent circu

          • by Bob9113 (14996)

            The police weren't interested in "criminal intrusion", they were doing what is called a welfare check.

            No they weren't. I talked to my neighbor, I know what she said to the police, and I recounted my story correctly. She is a LEO also, so she knows exactly what she said to them, and exactly what their interpretation was.

            Why is it an issue that your neighbors care enough about you to call the cops when they see something highly unusual taking place and want someone to check on your welfare?

            It isn't. That's wh

        • by nomadic (141991)
          I don't think there's much that can be done as a preventive measure, though I guess since a lot of these cases hinge on really close questions about whether a search was reasonable it's possible. You'd have to make it super specific I'd think, maybe something like: "No trespassing. This specifically includes law enforcement; the owner does not and never will give consent for law enforcement to search or enter these premises for any reason whatsoever. Anyone giving such consent is not the owner and is no
      • by TubeSteak (669689)

        If you're staying over at my house while I'm away, the cops ask you for permission to search the place thinking it is your house, and you say yes, anything they find is admissible because they had a good faith belief they were conducting a legal search.

        [Citation Needed]

        Someone who is not "in control" of the property can not legally consent to a search of the premises.
        Minors cannot give consent. A roomate can only consent to a search of common areas, but not your space(s).
        If you refuse to consent, the police can not get consent from someone else.
        See: FERNANDEZ v. CALIFORNIA

        Anything illegal belonging to you will be suppressed.
        On the other hand, anything that belongs to the guest is fair game, since they consented.

        The only thing the police gain from their go

        • by nomadic (141991)
          Uh....Fernandez v. California says the opposite of what you're saying. In it the Supreme Court held that even though one occupant had denied police entry, that after he had been arrested and moved away from the premises the other occupant could consent to a search. Only where one occupant is physically present and denying access are the police prevented from searching.

          In any event, my hypothetical was more akin to Illinois v. Rodriguez, where the Court held that as long as the police had a reasonable be
    • by nomadic (141991)
      By the way, I just glanced at the opinion and the stuff I say above applies to THIS case. Despite ruling it a fourth amendment violation the court let the conviction stand precisely because the police had a good faith belief they were not violating the fourth amendment.
      • By the way, I just glanced at the opinion and the stuff I say above applies to THIS case. Despite ruling it a fourth amendment violation the court let the conviction stand precisely because the police had a good faith belief they were not violating the fourth amendment.

        I can understand why ignorance of the law might save them from judicially imposed sanctions in past and present cases. But good faith does nothing to make the past use of such evidence legal, does it?

        • by nomadic (141991)
          Well the exclusionary principle isn't enshrined in law, or even considered a Constitutional requirement, it's just a policy decision the Courts have made to keep the police in line. Theoretically they could get rid of it tomorrow and offer a different remedy for an unlawful search (like lawsuits for damages). Once there's no deterrent effect (like where the cops don't know it's illegal, or at least can show that) the Court discards it as essentially useless.
  • by PFactor (135319) on Thursday June 12, 2014 @08:26AM (#47221009) Journal
    This appears to apply when dealing with the telcos to gather the data. Does it impact the use of Stingrays, which fool phones into connecting to them instead of legitimate cell towers?
  • by Anonymous Coward

    They may no longer be allowed to, but they can, and they will.

  • by Threni (635302)

    "Israel no longer allowed to illegally occupy parts of Palestine". Yep, they'll start rolling out later today, because goverments always abide by the law.

    This democracy stuff is great, isn't it? Things are really different now to when rich people did whatever the hell they wanted, weren't above the law etc.

  • by nimbius (983462) on Thursday June 12, 2014 @08:34AM (#47221063) Homepage
    Quartavious Davis, the plaintiff arguing for tracking privacy, was convicted of a first offense [huffingtonpost.com] for a string of robberies and sentenced to 162 years in prison based largely on testimony from acquaintences. Davis is facing nothing short of biblical retribution for ever having dared to transgress against the law in the peoples republic of florida based 'mandatory minimums' and the court is basically saying "yes, police cannot use your cellphone to track you but we still have enough evidence anyway so fuck off and die in prison kthx"
    • by Shakrai (717556) on Thursday June 12, 2014 @08:53AM (#47221199) Journal

      Poor baby. I feel so sorry for him. Not.

      Davis was convicted of participating in a string of armed robberies in the Miami area in 2010. His accomplices testified against him, saying he carried a gun during their crimes and discharged it at a dog that chased them after one of their burglaries.

      On Feb. 9 of this year he was convicted of committing seven armed robberies at fast-food restaurants, a Walgreens pharmacy and other commercial establishments in the Miami area from August to October of 2010.

      So essentially, he decided to carry a deadly weapon, and stick said weapon in the face of some teenage cashier at Wendy's, so he could make off with the <$100 that was in the drawer at the time. And we're supposed to feel sorry for him? Here's two hints:

      1. Don't commit felonies.
      2. If you must break Rule #1, don't carry a damned firearm while doing so.
    • by sribe (304414)

      What??? You really think 20 years or so for an armed robbery is too much??? For an intractable repeat offender???

  • by Bruce66423 (1678196) on Thursday June 12, 2014 @08:39AM (#47221103)
    For better or worse, Obama isn't President of the whole world...
  • until SCROTUS reverses it.
  • A Small Victory (Score:4, Interesting)

    by organgtool (966989) on Thursday June 12, 2014 @08:51AM (#47221173)
    Now they just need to get a FISA warrant rubber-stamped or use parallel construction to make sure that the evidence is admissable.
    • by RandCraw (1047302)

      FISA is strictly a federal warrant court. Local police and prosecutions don't use it. This ruling applies principally to local police conduct and evidence, secondarily to federal police conduct and evidence.

      Yes, the FBI could still rely on FISA's rubber stamp. But county mounties can't. And it's the sheer number of the latter which pose the greater threat.

      • by PPH (736903)

        The tracking is done by Federal agencies [slashdot.org] on behalf of local law enforcement. In practice, the Federal agency 'deputizes' the local LE official doing the actual work. So they are covered by FISA, the Patriot Act and other federal law.

  • by inhuman_4 (1294516) on Thursday June 12, 2014 @09:05AM (#47221279)
    The key take away is that they can no longer use this information as evidence in court. The government will still use this information to track you; but they will need to get more creative when they do parallel reconstruction.
  • Correction (Score:4, Insightful)

    by Archtech (159117) on Thursday June 12, 2014 @09:21AM (#47221397)

    "The Government Can No Longer Track Your Cell Phone Without a Warrant"

    The headline is slightly inaccurate. It should read:

    "The Government Can No Longer Legally Track Your Cell Phone Without a Warrant"

    But since history demonstrates conclusively that the government couldn't care less about staying within the law, that makes very little difference. It most certainly can track your cell phone without a warrant, it most probably does so, and you would be most unwise to assume it isn't doing so.

  • by doug141 (863552) on Thursday June 12, 2014 @09:37AM (#47221493)
    I guess law enforcement will just have to keep hiding their own law breaking from defense attorneys.
  • So the secret courts will issue broad secret warrants with attached gag orders saying that for National Security purposes all cell phones will be tracked and the tracking information made available to certain government agencies. Achievement Unlocked! Problem Solved!
  • by Bugler412 (2610815) on Thursday June 12, 2014 @09:54AM (#47221661)
    They can still virtually follow you, build a case, use the information to connect you to others, use it to indicate where to look for other evidence, etc. The location data just can't be admitted as "evidence", doesn't mean they can't and won't continue to use the information otherwise. Small incremental progress, but definitely not a full block on use of the data.
  • You didn't turn the location tracking off in your phone, what did you think was going to happen?
    • by Shados (741919)

      You can turn off the ability to locate (or at least get a general idea of the location) your cell via triangulation? WOW!

      • by Murdoch5 (1563847)
        You can put your phone in "airplane" mode and that will shut off all ability to track your phone. If your a "criminal mastermind" you would think that turning off your phones mobile access might be step #1.
  • by kheldan (1460303) on Thursday June 12, 2014 @10:14AM (#47221845) Journal
    The 'government agencies' that we're concerned about the most don't give a flying fuck about what 'courts' or 'judges' have to say, they're going to do whatever the hell they want to do, regardless; that's the nature of organizations who deal in 'secret' things, and it's the nature of the cancer that plagues our current government.

    Now, the question is: What should we use as chemo to cure this cancer?
  • Well, that's too bad, because I for one am not in the possession of fourth amendment protections. So as much as I think this is a wise and important verdict - irrespective of all the poisonous trees and parallel constructions - the US to me represents a clear and present danger to my privacy and my liberty.
  • The world has lots of governments. Don't assume all Slashdot readers are American.
    • by PPH (736903)

      This.

      Just discussing a warrant can get the voltage applied to your private parts cranked up in some jurisdictions.

  • The US government can no longer use the surveillance from tracking your phone in court without a warrant.
    Their still going to track you.

  • It's overrun with ACs high-fiving each other. The character of this website is gone now. I don't know what happened or exactly when it happened, but this isn't the same place anymore. I've been a poster for going on 15 years and I found myself leaving for a bit a few weeks ago. I think I might be done for good now. Really sad to see what happened here. I just wish I knew where everyone else went...

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