(Source: MR Conservative)
Court ruling gives government a powerful new route to circumvent warrantless GPS-tracking ban

Numerous U.S. federal intelligence and law enforcement agencies -- as well as their state counterparts -- have made the argument that going through the due process of getting a warrant when tracking citizens is too much work.  The Supreme Court of the United States (SCOTUS) clearly thought otherwise, deciding unanimously (U.S. v. Jones, 10-1259; PDF) in January 2012 that planting GPS trackers on citizens' vehicles generally is a violation of Fourth Amendment rights.

I. Lies and Excuses Riddle Tracking Justification

But since that setback, the opponents of due process have been getting creative with other ways to track Americans.  One tactic they've increasingly used is warrantless data grabs on calling recordstower ping data grabs, and even physical data grabs off devices.  A source close to the U.S. National Security Agency (NSA) revealed that nearly 99 percent of phone-using Americans are being tracked on a daily basis via this tactic.

On Tuesday, the U.S. Court of Appeals for the Fifth Circuit ruled [PDF] that such warrantless cell phone data grabs are legal.  This latest decision by the higher court invalidates the prior ruling [PDF] by Magistrate Judge Stephen Smith, of the U.S. District Court for the Southern District of Texas, which decided in November 2011 that cell phone location data warrantless seizures were unconstitutional under the fourth amendment.  (The U.S. District Court for the District of New Jersey earlier this month offered [PDF] a similar opinion.)

The 5th Circuit -- which sets the precedent for Louisiana, Mississippi and Texas -- argued that the warrantless tracking is okay because the cell phone carriers are the ones doing it, not the government.  They argue that stored location data is a "business record" and thus a person's location is not Constitutionally protected from search and seizure after it's been collected.

Cell Phone Tracking
The government says you have no privacy protections against cell phone tracking under the constitution [Image Source: MR Conservative]

They write:

… cell site information is clearly a business record. The cell service provider collects and stores historical cell site data for its own business purposes, perhaps to monitor or optimize service on its network or to accurately bill its customers for the segments of its network that they use. The Government does not require service providers to record this information or store it. The providers control what they record and how long these records are retained.

But that ruling is entirely ignorant of the fact that the federal government does force telecommunications companies to collect data records on their customers, and even participates in that collection.

II. Gov't DOES Mandate Private Companies Track You

A November 2001 pair of orders [PDF] directed at Telstra Corp., Ltd. (ASX:TLS) and its REACH Networks subsidiary, signed by Deputy Assistant Attorney General John G Malcolm and U.S. Federal Bureau of Investigation (FBI) general Counsel Larry R. Parkinson reveals:

Reach monitoring
Article 2.1 (b) of the document

[A carrier must be able to provide...]

Forced monitoring
Article 2.3, clauses (d) and (e)

Similar orders have reportedly targeted AT&T, Inc. (T) and Verizon Communications, Inc. (VZ), companies that own the majority of the fiber optic cable that underpins all major U.S. cellular networks.

This Phone is tapped
The PATRIOT Act enabled massive erosions to due process. [Image Source: Flickr]

These orders mostly trace back to the "business records" (50 U.S.C. § 1861) section of the 2001 PATRIOT Act, which removed the need to for the feds to get warrants when seizing certain kinds of records.

III. Appellate Courts: 2-to-1 in Favor of Warrantless Tracking

So it sounds like the 5th Circuit's assertion that "the providers control what they record and how long these records are retained" isn’t accurate.  They do, however, follow it with a true statement -- "Their use of their phones, moreover, is entirely voluntary . . . . The Government does not require a member of the public to own or carry a phone."

In other words, if you don't want your privacy rights trampled on, don't use a phone.  That perspective is nearly identical to a second ruling [PDF] by the U.S. Court of Appeals for the Sixth Circuit -- which covers Kentucky, Michigan, Ohio and Tennessee.  That ruling came down in August 2012.

So far the only ruling at the higher appellate level that's come close to rejecting this warrantless, ubiquitous monitoring of citizens is a Dec. 2010 opinion [PDF] from the U.S. Court of Appeals for the Third Circuit -- which covers Delaware, New Jersey, and Pennsylvania.  In that ruling, Chief Judge Theodore McKee wrote that under The Stored Communications Act (an outdated law that hasn't changed meaningfully since its passage in 1986, despite advances in cell phone technology) judges had the responsibility to decide individually for each case whether a request was covered under the fourth amendment and hence required the warrant.

While that ruling left the door open for a slightly faster justice-granted order, it was still blasted by the Obama administration and other proponents of wiping out Constitutional protections.

IV. Eroding the Constitution

As a result of these rulings, if you live in Kentucky, Michigan, Ohio, Tennessee, Louisiana, Mississippi, and Texas, the government can spy on your location without warrant via phone records, but if you live in certain east coast states you may need a warrant.  In other jurisdictions (e.g. mountain states, the southwest, and the west coast) the situation remains largely untested.

You are being tracked
The ACLU and EFF are upset about the Orwellian tracking of law abiding citizens. 

The American Civil Liberties Union (ACLU) blasted the 5th Circuit ruling, writing:

This ruling is troubling because, as we and the Electronic Frontier Foundation (EFF) argued, only a warrant standard fully protects Americans' privacy interests in their locations and movements over time. Cell phone companies store records on where each of us have been, often stretching back for years. That location information is sensitive and can reveal a great deal—what doctors people visit, where they spend the night, who their friends are, and where they worship. Given the sensitivity of these facts, law enforcement agents should have to demonstrate to a judge that they have a good reason to believe that they will turn up evidence of wrongdoing before gaining access to information that can paint a detailed picture of where a person has been over time.

The Electronic Frontier Foundation (EFF) adds:

More generally the "third party doctrine" -- the idea you have no expectation of privacy in information turned over to third parties -- is dangerously eroding our Fourth Amendment protection at a time when cell phone companies and Internet service providers are stockpiling extensive personal information about all of us. Last year, Justice Sotomayor of the U.S. Supreme Court sounded the alarm in her concurring opinion in United States v. Jones writing the doctrine was "ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks." 

But it looks like civil liberty advocates are for now on the losing side of a battle against the Obama administration and its federal/state allies who look to erode Constitutional privacy protections.

As in the growing issue of license plate scanning to track citizens (also funded by and legally endorsed by the Obama administration), U.S. citizens should simply assume "Big Brother" is watching them at all times.

Sources: U.S. Court of Appeals for the Fifth Circuit, ACLU, EFF

"If you look at the last five years, if you look at what major innovations have occurred in computing technology, every single one of them came from AMD. Not a single innovation came from Intel." -- AMD CEO Hector Ruiz in 2007

Most Popular Articles

Copyright 2018 DailyTech LLC. - RSS Feed | Advertise | About Us | Ethics | FAQ | Terms, Conditions & Privacy Information | Kristopher Kubicki