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  (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



Comments     Threshold


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So the Fed's response is...
By SAN-Man on 7/31/2013 3:26:09 PM , Rating: 5
"We're not tracking you, the phone company is, so it's legal."

And then the Fed demands access to the phone company's networks (we know they have access) so they can access the data directly.

What a shame.

I am ashamed of my government and ashamed to live in the US.

I am sure I am on a list now for saying this.

Anyone who doesn't put the blame squarely with the President here is a hack.




RE: So the Fed's response is...
By sm6184 on 7/31/13, Rating: -1
RE: So the Fed's response is...
By MrBlastman on 7/31/2013 4:24:36 PM , Rating: 3
There is a lot to be ashamed of here right now. Take our president, for instance, and all the clueless people who voted for him. Then, look at all the people who blindly vote single ticket, bet it Republican -or- Democrat. Lots of shame there, too.

The reason things are broken in our great country are right in front of us. Whether they will change and improve remains to be seen.

This appelate ruling is shameful in its entirety.


RE: So the Fed's response is...
By Ammohunt on 7/31/2013 5:28:45 PM , Rating: 1
You are right we should elect someone like Ron Paul and let him finish of the idea that is America. Then maybe we can start over again America V2.0!


RE: So the Fed's response is...
By BRB29 on 8/1/2013 10:09:33 AM , Rating: 2
It would be called United Utopias of America.


RE: So the Fed's response is...
By MrBlastman on 8/1/2013 11:17:57 AM , Rating: 3
The people who rated me down are evidence enough that Americans can't handle the truth.


RE: So the Fed's response is...
By ipay on 8/1/2013 12:26:07 PM , Rating: 3
Or maybe its by people you know that the president doesn't act solely in our system. Our representatives in congress are involved and have had the opportunity (not taken by many) to be briefed on many of these issues, which begun implementation before the current administration.


By MrBlastman on 8/1/2013 12:33:50 PM , Rating: 3
Actually I bet if you asked the majority Americans they'd tell you the President has all the power!

No, he doesn't act solely and our Congress plays a large hand in these things--many of which were set into motion under Bush but only made worse under Obama's watch. I turned my back to the Republican party due to Bush's shenanigans along with the Congress due to the Patriot Act among other things.

Most Americans probably don't even realize you can vote for a party other than Democrat or Republican.


RE: So the Fed's response is...
By danjw1 on 7/31/2013 3:47:45 PM , Rating: 2
You have it all wrong. They pay the company for those records. The companies have a price list that law enforcement organizations work from to buy the data. That said, it is just a joke. SCOTUS will have to review this. Hopefully they come to the same conclusion they did with the data from your phone.


RE: So the Fed's response is...
By ritualm on 7/31/2013 6:50:05 PM , Rating: 3
Exactly what difference will a SCOTUS ruling make? The Obama Administration has already proven it willingly tramples the US Constitution in pursuit of the endgame. If you truly value your principles, you are automatically enrolled into NSA's undesirable persons lists.

And we still have to contend with armchair chickenhawks who walk in unannounced to claim how the US government is trying to protect us from harm's way.


RE: So the Fed's response is...
By kattanna on 7/31/2013 3:52:51 PM , Rating: 3
quote:
Anyone who doesn't put the blame squarely with the President here is a hack.


yet.. all those in congress who continue to vote yes for such things.. they of course are blameless??

LOL


RE: So the Fed's response is...
By inighthawki on 7/31/2013 4:10:28 PM , Rating: 2
You would think all of those corrupt politicians would vote against something that allows the government and law enforcement to look into their activities :)


RE: So the Fed's response is...
By maevinj on 7/31/2013 4:20:27 PM , Rating: 2
But they are above the law!!


RE: So the Fed's response is...
By Reclaimer77 on 8/1/2013 9:20:53 AM , Rating: 1
Uhhh when was this put il for a vote? I'm under the impression Obama just made it so.

Remember, this is not the Patriot Act at work. Hes gone far beyond that.


By fleshconsumed on 8/1/2013 9:57:17 AM , Rating: 4
As I have told you in the other thread, you're deluding yourself if you think this is all Obama's fault. Both parties are complicit on this issue, democrats, and your beloved republicans alike.

Educate yourself:
https://www.eff.org/nsa-spying/how-it-works
https://www.eff.org/nsa-spying/timeline


By marvdmartian on 8/1/2013 9:15:22 AM , Rating: 1
Throw-away cell phones (i.e.-prepaid cell phones) should make this a bit more difficult. Really not too hard to come up with a bogus name & address, and pay any fees with a prepaid credit card.

OR....we could vote the bozo's out of office, that believe this is a perfectly acceptable way to treat their constituents.....but I'm not going to hold my breath, waiting for the voters to get angry enough to do that!


By inperfectdarkness on 8/1/2013 2:19:17 PM , Rating: 3
You think that's painful? Try being in the DOD, downrange, and watching the very constitutional freedoms you've sworn your very life to defend--being eroded away before your very eyes.

I feel like a hypocrite for being a bystander. It's the worst kind of personal guilt I know of. I'd rather live with the guilt of reckless manslaughter or killing a family while drunk-driving.


SCOTUS
By ClownPuncher on 7/31/2013 3:57:55 PM , Rating: 2
Take it to the Supreme Court. Look at cases like Katz v. United States. They should do the right thing.




RE: SCOTUS
By MrBlastman on 7/31/2013 4:26:50 PM , Rating: 2
It will eventually get there. Too bad it takes so darn long for some of these things. In the meantime who knows how many people will be infringed, spied upon or imprisoned unreasonably.


RE: SCOTUS
By bah12 on 8/1/2013 11:46:58 AM , Rating: 2
Except they are just as partisan as the rest of washington. They no longer judge based on right/wrong, but all line up allong party lines like the rest of the washington hacks.


RE: SCOTUS
By ClownPuncher on 8/1/2013 1:00:29 PM , Rating: 2
Maybe, but US v Jones just happened last year and they did the right thing.


Too bad
By SteelRing on 7/31/2013 4:30:35 PM , Rating: 2
Unfortunately, while SCOTUS banned the use of a specialized tracking device as violation of 4th amendment, tracking your phone is entirely non-intrusive so I could see why they would allow it. It's no different than having a person or a drone (gasp) following you around as long as you are in public place. Then again, if you're smart enough to avoid being detected, i.e. turn off your phone or not having one, there is nothing they can do to track you and they can't make you.

Either way, this legal nonsense only applies for the purpose of the court of law to determine admissibility of evidence. They could inject you with nannites to track you for all they care, they just can't use anything obtained in that manner to prosecute you, but they'd do that if they want to.




RE: Too bad
By ritualm on 8/1/2013 7:14:09 PM , Rating: 2
Actually, if they want you behind bars, they'll have it - due process and the rule of law are just "excuses".

History is written by the victors. Want an exception? Buy your way to the White House. Today's Congress and Senate are a complete joke. Pay several million bucks to buy votes and rig the voting process, so you can have everyone vote against you and still win.


You are
By Scootie on 7/31/13, Rating: 0
RE: You are
By AliShawkat on 7/31/2013 4:18:22 PM , Rating: 2
indeed


Key Words
By Spuke on 7/31/2013 5:15:19 PM , Rating: 2
quote:
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.
Private companies are not subject to the 4th amendment. The gov can subpoena these records or issue a warrant for them.




earn cash
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