Again, federal court finds cops don’t need a warrant for cellphone location data

[Eugen Leitl]

http://arstechnica.com/tech-policy/2013/07/again-federal-court-finds-cops-dont-need-a-warrant-for-cellphone-location-data/

Again, federal court finds cops don’t need a warrant for cellphone location
data

If you want your records anonymized, tell "the market or the political
process."

by Cyrus Farivar - July 31 2013, 1:17am WEDT

GOVERNMENT LAWSUITS

In a new 2-1 decision published (PDF) Tuesday, the Fifth Circuit Court of
Appeals has held that law enforcement does not need a warrant to obtain
cell-site location information (CSLI) from a mobile phone, falling in line
with other recent high-level federal court decisions.

In July, however, the New Jersey Supreme Court ruled unanimously that cops do
not have this right (at least in the Garden State), setting up a situation
where the Supreme Court could rule to settle the debate once and for all.

The Fifth Circuit’s majority judges cited the Stored Communications Act (also
known as a 2703(d) order) as grounds to allow CSLI to law enforcement. Under
that federal statute, authorities can’t retrieve the contents of electronic
communication, but they can find out where and to whom electronic
communication was sent. In contemporary cases within the last decade, law
enforcement and judges have increasingly used this reasoning to obtain
extensive location data that can effectively turn the phone into a tracking
device. Such information previously would have required a much higher legal
threshold like a probable cause-driven warrant.

In the majority decision, the judges wrote (PDF) that cell site information
was nothing more than a business record, which "the Government has neither
'required [n]or persuaded' providers to keep."

"In the case of such historical cell site information, the Government merely
comes in after the fact and asks a provider to turn over records the provider
has already created," the judges continued. "Moreover, these are the
providers’ own records of transactions to which it is a party. The caller is
not conveying location information to anyone other than his service provider.
He is sending information so that the provider can perform the service for
which he pays it: to connect his call."

Not surprisingly, civil libertarians decried the Fifth Circuit's decision. As
the American Civil Liberties Union's Catherine Crump wrote:

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.

Still, the Fifth Circuit judges did have one more remedy for mobile phone
users who want to keep their location private: just, y'know, "demand" it from
your mobile carrier. As they wrote:

We understand that cell phone users may reasonably want their location
information to remain private, just as they may want their trash, placed
curbside in opaque bags, Greenwood, 486 U.S. at 40-41, or the view of their
property from 400 feet above the ground, Florida v. Riley, 488 U.S. 445, 451
(1989), to remain so. But the recourse for these desires is in the market or
the political process: in demanding that service providers do away with such
records (or anonymize them) or in lobbying elected representatives to enact
statutory protections. The Fourth Amendment, safeguarded by the courts,
protects only reasonable expectations of privacy.