Cellphones Increasingly Used As Evidence In Court 232
Hugh Pickens writes "The NY Times reports that the case of Mikhail Mallayev, who was convicted in March of murder after data from his cellphone disproved his alibi, highlights the surge in law enforcement's use of increasingly sophisticated cellular tracking techniques to keep tabs on suspects before they are arrested and build criminal cases against them by mapping their past movements. But cellphone tracking is raising concerns about civil liberties in a debate that pits public safety against privacy rights. Investigators seeking warrants must provide a judge with probable cause that a crime has been committed, but investigators often obtain cell-tracking records under lower standards of judicial review — through subpoenas, which are granted routinely, or through an intermediate type of court order based on an argument that the information requested would be relevant to an investigation. 'Cell phone providers store an increasing amount of sensitive data about where you are and when, based on which cell towers your phone uses when making a call. Until now, the government has routinely seized these records without search warrants,' said EFF Senior Staff Attorney Kevin Bankston. Last year the Federal District Court in Pittsburgh ruled that a search warrant is required even for historical phone location records, but the Justice Department has appealed the ruling. 'The cost of carrying a cellphone should not include the loss of one's personal privacy,' said Catherine Crump, a lawyer for the ACLU."
"Right" to a private cell phone? (Score:2, Insightful)
Carrying a cellphone isn't displaying any expectation of privacy. By having it, you're explicitly granting permission for people to find you.
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This just really goes to show you that you could put your phone on its Airplane setting before you commit a crime
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What if you have it set to silent or "meeting" mode?
It's still going to be in contact w/ the towers and it's location will be known. As far as I know, those modes simply turn off the ringer. If you put it in flight mode or remove the battery so that it is no longer transmitting there will be no location data sent.
Re:"Right" to a private cell phone? (Score:5, Informative)
It's still going to be in contact w/ the towers and it's location will be known
Small nitpick, but the exact location is not known unless you are actively engaged in a call/data session. GSM has "location areas" set up for idle phones. When a call/SMS comes in for your phone a paging message is broadcast on every tower within that location area. The page tells your phone to connect to the network to receive the call/SMS. Until your phone responds to that page the carrier has only a vague idea of where it is. The size of the location area varies depending on population and other factors but they are generally large enough that it would be pretty hard to locate you based solely on an idle phone.
I'm not as familiar with CDMA but I believe it uses a similar concept to handle the paging of idle phones. It makes good sense when you think about it -- if the phone had to contact the network every single time you moved between towers you'd drain the battery a lot faster while in motion. In this manner it only has to contact the network when you move between location areas, which happens a lot less, thus saving battery life.
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Right, it's in contact with the towers so they've got the 'general area' you're in, ( though one might be able to do some funky stuff to beam your signal directionally to another tower?)
I do have this 'GPS' thing on my phone with the option to either turn it on for all calls, or turn it off except for 911 calls. Does this mean that 911 can determine my GPS location if I call them? I don't see any way that I can view my lattitude/longitude/elevation from my phone which is too bad since I'd use it for geoca
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do have this 'GPS' thing on my phone with the option to either turn it on for all calls, or turn it off except for 911 calls. Does this mean that 911 can determine my GPS location if I call them? I don't see any way that I can view my lattitude/longitude/elevation from my phone which is too bad since I'd use it for geocaching or something probably.
You can't view it because most phones don't have real GPS capability. They have A-GPS [wikipedia.org], which relies on the network to determine your location.
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Actually, A-GPS is better than normal GPS as A-GPS equipment can work on its own to find a satellite or it can use the network to gain a headstart on traditional GPS units.
It doesn't rely on it, it uses it in addition to the same techniques used by other GPS units.
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I think the investigators make use of the GPS system in your cell phone. Your cell phone can be tracked or triangulated at will by your provider without you even knowing it unless you either a) programmed the phone yourself or b) disabled the GPS unit. This is useful for emergency situations where your GPS coordinates are transfered to the 911 operator who then knows where you are even if you don't.
The smart thing would be to leave your phone home only if you're going to commit a crime and make sure nobody
Re:"Right" to a private cell phone? (Score:5, Insightful)
But if I have the phone set to meeting/silent, my expectation is of privacy
No, your expectation is not to be disturbed. If you wanted privacy you would have turned the phone off......
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Re:"Right" to a private cell phone? (Score:4, Insightful)
You assume that the network has the ability to determine that your phone is set to silent. I think this is a false assumption. The network just knows that your phone is connected -- it has no idea if your phone is set to ring/vibrate/silent, what ringtone you use, etc.
Furthermore, why should it matter what setting your phone is on? You either have privacy (i.e: law enforcement needs a warrant to view your location information) or you don't. Why are we even talking about the 'silent' setting, as though that should make an iota of difference in either direction?
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True. I suppose the police could still respect your wishes and arrest you quietly.
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but it is part of the flimsy nature of the cellphone as evidence.
I don't think the cellphone is as flimsy as many think it is. You obviously can't take the location information from Verizon as gospel but it's one hell of a starting point for the investigation. Mr. sonnejw0, your cell phone was active near the location of the murder, but you claim you weren't there, how do you explain this? If you deny that it was then they have to track down the person(s) you called and get them to testify as to whether or not they spoke with you on the phone.
You can't (and shouldn't
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If we all wanted true privacy we would move to the country-side, but there is not enough country-side for all to have that kind of privacy.
Hardly. In the country, where the population is much less dense, everyone knows everyone (because "everyone" is so few people). People are much more likely to know your movements, your habits, and your business in a small town than a big city.
People who desire anonymity and privacy will almost always go to a big city, not to the countryside.
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Actually, you don't have a right to privacy to anything that can be seen through your windows. It's called plain sight. It's the reason you should never just let a cop inside your house (anything illegal sitting around is fair game) or just leave the baggy of weed in your car on the front seat. Because it's plainly visible and anyone can see i
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having s
Re:"Right" to a private cell phone? (Score:4, Informative)
I don't think explicitly means what you think it means. The word you need is implicitly.
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http://www.eff.org/files/filenode/celltracking/lenihanorder.pdf [eff.org]
However this can vary by jurisdiction so YMMV.
Now if someone wanted to track you on their own and can do so, that's their prerogative.
Re:"Right" to a private cell phone? (Score:4, Insightful)
Erh... no. I grant people the right too reach me, as in, get in contact with me, if, and only if, I choose to answer it when they call me.
That's what I explicitly grant when carrying a cell around.
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Erh... no. I grant people the right too reach me, as in, get in contact with me, if, and only if, I choose to answer it when they call me.
That's what I explicitly grant when carrying a cell around.
Erh... no. You explicitly grant the cell phone provider to do whatever it states on its terms of service. Not bothering to read it does not make it any less explicit, because you explicitly agreed to it.
Everything else is implicit.
Re:"Right" to a private cell phone? (Score:4, Insightful)
Carrying a cellphone isn't displaying any expectation of privacy. By having it, you're explicitly granting permission for people to find you.
I think you're explicitly granting permission for people to call you, which is not the same thing as knowing where you are. Similarly, just because my cellphone can record audio and video while "off-hook" doesn't mean that I'm explicitly granting permission for people to eavesdrop my day-to-day conversations.
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By having it, you're explicitly granting permission for people to find you.
No. I did a project for a bank where the bank would ask user permission on Cell Phone (within 4 seconds) before authorizing the transaction on his Credit Card (since many credit card users were reporting fraud). The proposal of querying Cell Phone for its location went through heavy debate due to concerns of users privacy. It held some ground only with arguments that we were not tracking user on regular basis and we would record hi
Re:"Right" to a private cell phone? (Score:5, Insightful)
Carrying a cellphone isn't displaying any expectation of privacy. By having it, you're explicitly granting permission for people to find you.
Actually, I am granting the right to attempt to contact me (I can lie about my location, even if I honor the request/answer) to those whom I give credentials (i.e. Cell#)
That is a far cry from explicitly allowing the whole world to know my exact location.
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A phone number is a pretty shitty credential. To the point that I'm not sure I would even call it a credential.
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I'm not explicitly granting permission for people to find me; I'm letting a select group of people try to get in touch with me. I don't give my number out to just anyone, and even if I do give it to you, I'm not always going to choose to pick up the phone when you call. I do have my phone configured to give location information to emergency services, but not to anyone else.
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Really? Do cell phone companies clearly communicate to their customers that they will be keeping a log of everywhere the customer goes? A reasonable person might understand that the company would be able to know which towers the phone was connected to, but why would they think that this information was being recorded and stored?
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No, you are explicitly choosing to see who is trying to communicate with you and decide if you care to communicate with them or not. That's what caller ID is for. You may or may not choose to tell that caller where you are (you might even lie, see Captain Morgan commercials). You may or may not realize that your phone's location must be narrowed down to the nearest tower for it to work.
One of my phones had a feature to enable location, disable location unless I dial 911 or disable it for all cases. That set
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Carrying a cellphone isn't displaying any expectation of privacy. By having it, you're explicitly granting permission for people to find you.
The same is true of having a street address, but those of us who live in homes have an expectation of privacy nonetheless. When I hike, I tell folks about where I'll be, but nobody has yet taken that as permission to follow me around with a camera. I have no idea why you think ease of location is the same as permission.
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expectation of privacy
You and the government keep using those words. I do not think it means what you think it means, and Scalia's shitfit [schneier.com] proves it.
Also, I suspect that the majority of the public do not realize that they can be tracked by their cellphone, so they clearly not "explicitly granting" any such thing.
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> Just because you use email to send/receive messages doesn't mean you want everyone to know *where* you sent the messages from
A) Not 'everyone' can know where you are when your cell phone is tracked, such information generally requires a warrant.
B) Unless you are using extra means to hide/obscure where you are sending/receiving your email, your IP address will be known and also can be used to have a rough idea of where you are at the time of the sending.
Hell... even using the USPS to send your messages
Alibi's? (Score:5, Insightful)
Re:Alibi's? (Score:5, Insightful)
Now that we are aware of the increasing use by law enforcement of cell phone records, won't criminal simply setup their cell phones at some alibi spot, go off and commit the crime and use the records as support for that alibi?
So, not only do mobile phones bust the alibi of the guilty, they now also cause doubts about the alibi of those not guilty??
Doesn't that mean that a mobile phone should not be used as evidence?
Re:Alibi's? (Score:4, Insightful)
Consider the differences between a false positive and a false negative.
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Cell phone position alone could not crack an alibi. However, if the suspect made a phone call from his cell during the same time period as the crime, that could very well break their alibi.
See, if it were just the cell phone position, it could be argued that the suspect didn't have it on their person at the time. It would be useless in court. Tie their cell phone to their voice at the approximate time of the crime, however, and you have a whole new set of evidence to play with.
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Erh... not even the EU got paranoid enough in their war against terror or pedos or whatever the current boogyman (I lost track, lacking interest, sorry) to do a full audio recording of all cell communication...
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All you need is a witness testifying he spoke to the suspect on the phone.
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All you need is a witness testifying he spoke to the suspect on the phone.
With these kinds of friends, you don't need enemies.
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Erh... not even the EU got paranoid enough in their war against terror or pedos or whatever the current boogyman (I lost track, lacking interest, sorry) to do a full audio recording of all cell communication...
[Citation needed]
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Ok, they're not yet, that's the next phase in case nobody cares too much about the current collection of connections that makes facebook and other Web 2.0 pages go green with envy. Satisfied?
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Cell phone position alone could not crack an alibi. However, if the suspect made a phone call from his cell during the same time period as the crime, that could very well break their alibi.
IF the person called testifies that it was the defendant who made the call. Otherwise, the defendant "lost his phone" and a bag lady found it and called someone in the address book (who knows why?)
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The only thing a cellphone can do is say the cellphone is/was in the area*.
*Probably. Assuming the IMEI / ESN haven't been cloned [cellphonehacks.com].
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No, because most criminals aren't that intelligent or thoughtful.
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So our goal is to catch only the dumb criminals? I'd say the smart ones are more dangerous...
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Or countries.
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You can use any kind of evidence used by the police to lay down false tracks. Want to kill someone when you have to wait for him? Gather some cigarette stubs from someone who equally hates that person and litter them in a bush next to your target's house. You're into rape? Start collecting used condoms. It's admittedly a wee bit harder with fingerprints, but DNA proof opened up a whole new road when you're carefully planning your crime. Most people don't care where they leave their DNA, from hair to chewing
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Re:Mod Parent Up (Score:4, Funny)
I mean, hypothetically.
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That's 0 times so far.
Sounds like a good idea... (Score:2)
Too easy to spoof (Score:5, Interesting)
I find this reminiscent of the RIAA's arguments, where they show that infringement took place from an IP, but they cannot show who was sitting at the computer. Who can prove who was carrying a cell phone?
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RIAA is civil, not criminal so the same burden of proof is not applicable.
I doubt the phone records were the only "proof" that the alibi was bogus. Once they knew where the person was and/or wasn't it shouldn't have been too hard to find corroborating evidence.
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It's a simple matter to avoid this sort of scrutiny. Give the cell phone in your name to someone else, go commit the crime, and then retrieve the phone.
A surprising number of murders are crimes of passion, i.e., the murderer didn't set out to commit a crime, and didn't plan accordingly. Many of the others are carried out by stupid people.
But yes, I agree. And I would take this further --- if you're ever planning to do something questionable, like cheat on your wife/girlfriend, buy drugs, take clothes/fo
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But yes, I agree. And I would take this further --- if you're ever planning to do something questionable, like cheat on your wife/girlfriend, buy drugs, take clothes/food to an escaped political prisoner who's wanted by your authoritarian government, you should be proactive and take the battery out.
But what if it is an iPhone?
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>> I find this reminiscent of the RIAA's arguments, where they show that infringement took place from an IP, but they cannot show who was sitting at the computer. Who can prove who was carrying a cell phone?
preponderance of evidence
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Privacy protection is for honest people. Giving criminals ways to feed misleading information to authorities only serves the purposes of the criminals. It's serves the purposes of law enforcement better for criminals to think 'the cops would need a warrant to search my phone records, and they don't have enough on me to get one, so I'll just use my cellphone and not worry about the tracking data' than for them to think, 'the cops can query my cellphone records at will, and they probably have everyone's dat
Does no-one watch Star Trek? (Score:5, Funny)
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Surely they're not gonna use the mobile phone as the only piece of evidence. Correct me if I'm wrong as IANAL, but wouldn't multiple pieces of evidence be what can effect a court case? So like, a mobile phone by itself might not be 100% reliable evidence, but if they have witnesses, other pieces of evidence, etc...
~Jarik
A question that needs answering in these cases... (Score:4, Insightful)
How does the prosecution prove that the cellphone was in possession of the accused at the time?
My wife frequently borrows my phone if she needs to go out and hers is dead. I'll do the same with hers. Its a portable device, with no onboard biometrics. Anyone could pick it up and transport it somewhere without the owner's knowledge or permission. What better way to frame someone for a crime than to take their phone to the scene, do the crime, call the phone (to generate a calling record with cell-tower location data) then return it.
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Think about finger prints. While CSI isn't real life, it is unnervingly close. "His fingerprints are on the gun, he must be the killer." The finger prints indicate he had touched the gun, not when, but the media is teaching us to not question this. (Much like COPS and other related shows are getting us used to having SWAT come out to take care of everything.)
If you question these things, you must have something to hide, and you don't have anything to hide, do you citizen?
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Anyway, people have been convicted and executed on shakier evidence than phone records. All the prosecutor has to do is convince the jury that you had the phone on you, and you'll be convicted. Remember, the DA just has to convince, he doesn't have to prove.
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People don't get convicted because their cell phone was or wasn't in one location or another, they get convicted because they have no plausible explanation for why their cell phone was in a location that fits in perfectly with the story the prosecution is telling and contradicts the story the defense is telling.
Location doesn't prove much for us... (Score:3, Funny)
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This is not an invasion of privacy (Score:4, Informative)
Re:This is not an invasion of privacy (Score:5, Insightful)
Any personally identifying information held by a company or individual about a second individual should be considered confidential and treated as such. Otherwise you might end up in the situation where your doctor doesn't tell anyone you have disease X, however your credit card company could because they know you've been buying medications. Who the information comes from is really of little consequence; it's the information itself that matters.
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I keep thinking about the whole "phorm" mess with advertising (at least their trials with Charter). where they say that they will protect your privacy for their targeted ads, but if you look at the fine print, any and all data they have on you will be turned over for a subpoena. Then they have the "opt out cookie" that will prevent you from seeing ads, however, they still gather that data, you just don't see the ads. And that data could still be handed over with a subpoena.
It is worth saying again (Score:4, Interesting)
No, I don't know how to achieve that goal, short of re-wiring some brains.
Re:Common Courtesy (Score:2)
Ok, common courtesy is a good thing - most of the time, but courteous drivers piss me off.
I absolutely hate it when attempting to pull out across two lanes of traffic when a 'courteous driver' in one of those lanes stops to let me go when they have the right of way to just proceed. This creates all sorts of havoc including:
New Alibi (Score:2, Funny)
Polygraph (Score:2, Insightful)
Wy do I have the feeling this is used like Lie Detector tests?
If a polygraph test indicates guilt, then the prosecution will use all means to get it admissible. However, if it indicates innocence, it will be "brushed over"...
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Cellphone data to be stored 12 months (Score:3, Informative)
Cellphone traffic data has to be stored for 6-24 months in the EU, exactly for this reason. It's useful for law enforcement. The Dutch Parliament yesterday accepted a law that requires this data to be stored for 12 months (who called who, where). Internet data (who used what IP-adress at what moment, who mailed who, but not what websites were visited, gmail, twitter etc.) will only need to be stored for 6 months.
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privacy (Score:5, Insightful)
If you phone is stolen... (Score:3, Informative)
Why stop at law enforcement? (Score:3, Interesting)
Why stop at law enforcement? Let all litigants in civil cases have access to the information. Think
about it. Cheating spouses, monitoring your kids; it'll be a great society if we all have this data. Ala "South Park" WifeTracker 2010 will be a great boon to all those paranoid husbands out there who's wives are meeting guys on Craigslist or PlentyofFish. At the same time why not have the tracking information go right to Twitter so we can all automatically know when Ernie down the hall takes a BM in the company lavatory.
Why stop there? Why not allow public access to all the surveillance cameras everywhere. We should have
access to all of this. Put it on youboob so we can all see it and eat popcorn at the same time.
Oh wait, let's also get your DNA so that every place you've ever been can be tracked. You know, that hair you leave behind in the tub at Travelodge? Hell, we can associate that to your tracking so we don't need electronic surveillance.
Yeah, that'll be a country that I want to live in and be a part of.
Personally, I find these trends very disheartening and with the ever increasing use of this information
being collected for profit and presumed "law enforcement" makes me worry about our future liberties. All law enforcement needs to do is have a presumption that a crime is being committed and your liberties and privacy go out the window.
Take a look at Iran, yeah I said it, and how they're using the technology to crack down on protesters in their country.
Thanks for the tip (Score:3, Insightful)
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When he was asked, he told his father the whole truth and nothing but the truth.
So, I learned a long ti
Disposable cellphone (Score:2, Insightful)
The smart criminals just carry a disposable cellphone, so it's a non-issue for them. Warrantless cellphone tracking just hurts everyone else.
What the hell? (Score:4, Insightful)
Suspect: My phone was stolen not long before the incident, actually. I was making a call in the town, which probably also comes up on the log you have, when a guy snapped it from my hands. I hadn't reported it yet. Say, you don't think this mugger would have also tried to harm someone else to get their belongings, do you? I mean, someone less pansy than me who might have put up a fight?
What a pile of useless garbage this scheme is.
Make cellphones mandatory? (Score:5, Insightful)
However mobile phones are merely "technology", not people. So the ability to track them is a much easier sell - especially as it wouldn't involve the people at all, just some computers 'n' stuff.It seems to me that all a government has to do is make tha carrying of a mobile phone an obligation for citizens, visitors and the like. Getting rid of anonymous phones would also be part of the deal, but in many places they're already gone or on the way out.
What happens next is that people have been issued with de-facto ID cards. Ones that can be accessed passively without the owner's knowledge or permission. Yes you could turn it off, but people are so addicted to them, and so afraid of missing "that" call (we know this: almost everyone will stop doing *anything* to answer a call when the phone rings - they just can't ignore it or let it ring). amd so insecure, that hardly anyone would. It might even become socially unacceptable - like smoking in public, or travelling naked. Even better, the cost to the government is much lower than for an ID card scheme, and once everyone has one, all the time, they can be used for issuing summones, texting out tax demands, traffic tickets and almost anything else that a government or official body would need to send to it's citizens.
Presumably the next step would be to have them implanted at birth?
Re:OMFG! That's a good idea! (Score:2)
Amateurs! (Score:3, Insightful)
Zero zero zero destruct zero (Score:2)
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What, they're going to add another one?
disposable phones? (Score:2)
Don't most good criminals use disposable pay-as-you-go phones?
Moral of the story (Score:2)
If you're going to commit a crime, leave the cell phone at home, or better yet, "forget it" in your alibi's car for that time period.
"Oh I was with so and so - check the cell phone records".
Once again, only the dumb criminals get caught.
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thank you then for being a good juror.
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You seem to have a clue. How did you ever make it past jury selection?
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The list gets pretty long if you bother to stop and think a moment.
Re:Chilling Effect (Score:2)