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

Jason Koebler (3528235) writes The government cannot use cell phone location data as evidence in a criminal proceeding without first obtaining a warrant, an appeals court ruled today, in one of the most important privacy decisions in recent memory. "In short, we hold that cell site location information is within the subscriber's reasonable expectation of privacy," the United States Court of Appeals for the Eleventh Circuit ruled. "The obtaining of that data without a warrant is a Fourth Amendment violation."

FP?

[dosius]

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

Re:Jurisdiction

[just_another_sean]

Um, no. It's a Federal Court and sets precedence, that is unless overruled in the future by another Federal Court, that is binding in other cases similar to this one. As another poster pointed out it will probably make its way to the Supreme Court and could change from there. In the meantime this applies to the whole country.

Re:Jurisdiction

[nomadic]

Nope, it IS only binding in the Eleventh Circuit. One of the reasons cases get to the Supreme Court is because there's a circuit split; some circuits go one way, some go the other, and the SC decides which should apply to the whole country.

Re:Legal question

[nomadic]

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.

That doesn't mean

[Anonymous Coward]

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.

Re:Jurisdiction

[just_another_sean]

Well no, not exactly. I didn't word it very well but when I said "overruled by another Federal Court" I meant that another circuit can decide differently. And sometimes they do; but they need to provide a new decision and explain why their interpretation is more correct than what they are overriding. And overriding previous precedence isn't something other Federal circuits do lightly so unless they are willing to do so this is binding on future cases similar to this one.

It's only once one circuit disagrees that this needs to be appealed upwards, until than all Federal Circuits will look to this decision when making similar decisions.

But, hey, I'm just interested in civics, IANAL, so if I'm just splitting hairs here, my apologies.

Re:FP?

[NotDrWho]

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.

Re:Jurisdiction

[nomadic]

Well IAAL (in the 11th circuit even) so I tend to get a little OCD about legal terms. You're right it has precedential value in other circuits and any court addressing the issue will take this case seriously, though circuits frequently do just explicitly disagree with other circuits so I'd be more comfortable once this gets to the Supreme Court.

Re:not in TFA but still very relevant

[Shakrai]

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.

Re:FP?

[Anonymous Coward]

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

Google parallel construction.

Re:FP?

[gstoddart]

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:Jurisdiction

[swillden]

To be precise, this ruling established a binding precedent in the 11th circuit and a persuasive precedent elsewhere in the country, correct?

My understanding is that given a binding precedent a circuit judge must explain why the precedent does not apply to the facts in order to rule contrary, and that given a persuasive precedent the judge merely needs to explain (in some detail) why the precedent is in error. Is that right?

Re:FP?

[RockClimbingFool]

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.

They'll keep doing it.

[penguinoid]

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.

Re:FP?

[mellonhead]

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.