Cell Phones Need A Warrant, But Cell Site Location Info Doesn't? Appellants Challenge Government's Assertions

from the it's-time-to-start-disassembling-the-Third-Party-Doctrine dept

The Supreme Court's recent finding that warrantless cell phone searches are unconstitutional is already generating some pretty interesting arguments in ongoing cases. The government obviously wishes to mitigate the "damage" done by this decision by still doggedly pursuing data through warrantless methods.

In this particular case, the government is arguing that it has every right to access cell site location information (CSLI) without a warrant, claiming that the Riley decision solely pertains to the contents of cell phones. Obtaining CSLI without a warrant is still Constitutionally-dubious, however. One state court and a federal court have held that this information should only be obtained with a warrant. In the prior case, it was found that the state's Constitution provided more protection than the US Constitution and in the latter, the finding was very narrowly tailored to the case at hand, making it very difficult to apply to others cases, even under the same jurisdiction.

While the government makes the usual claims about third party data and warrant requirements being an undue burden, the appellant's reply takes those arguments apart.

The government is quite candid in its brief that it wishes to use cell phone location data to conduct dragnet surveillance without any individualized suspicion, or even a belief that a crime has occurred. It claims that CSLI is a simple building block at the beginning of an investigation that is the equivalent of chatting with bystanders. Riley refused to countenance this warrantless practice when it explained that location data qualifies as one of the “privacies of life” that the Fourth Amendment protects.
The appellant's reply further disassembles the government's assertion that grabbing cell location info is like "chatting with bystanders" in order to help "build an investigation." In one footnote, it asks why the government feels it shouldn't need a warrant for the cell location data when it obviously found a warrant necessary elsewhere, belying its "building an investigation" claim.
Here, this argument is demonstrably false. Appellants had already been arrested and indicted–and multiple search warrants had already been issued–before the government first sought the 18 U.S.C. § 2703(d) orders. In fact, some of the warrants were to search the cell phones.
In another, it attacks the ridiculousness of the Third Party Doctrine, which the government claims gives it the "right" to grab records without warrants and, in essence, turns the cell provider into nothing more than an impartial witness/bystander.
Contrary to the government’s assertion, nobody at Sprint witnessed Appellants’ movements, let alone any criminal activity. The government required Sprint to record his movements, using Sprint as the custodian. The technology itself needs only ephemeral and anonymous detection of location. Using this artefact of the technology as a retrospective homing beacon does not transform Sprint into a witness. Without the government’s action, no person would have ever known or seen the Appellants’ every move over the course of seven months.
If there's anything the court should pay particular attention to, it's this footnote. The government has successfully argued for years that so-called "business records" carry no expectation of privacy while hiding the fact that many of these records are maintained to meet government regulations. The government compels the production of records and then claims it should have broad, warrantless access to them because cell phone owners "voluntarily" generated these by using their phones. It ignores the fact that there's no way for customers to opt out of these collections, short of not using a phone. This ties into the Riley decision, in which the Supreme Court noted that having a cell phone isn't some sort of luxury enjoyed by a small percentage of the population but a necessity of modern life.



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Filed Under: 4th amendment, cell site location, doj, location info, riley, warrant


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  1. identicon
    KM., 21 May 2015 @ 8:43am

    The unconstitutionalit of SCA 18 U.S.C. 2703 (d)

    In order to prevail on the issue of historical CSLI and its requiring of a warrant to obtain, one must first attack the constitutionality of SCA 18 U.S.C. 2703 (d) which allows the obtaining of historical CSLI with a court order.

    SCA 18 U.S.C. 2703 (d) is unconstitutional because the U.S. Supreme Court decisions of Lustig and Byars that says, 'anytime the government (police, federal agent, etc) uses a private citizen/entity (cellular service provider) as its agent in acquiring evidence against someone
    this evokes the full ponoply of constitutional protections'(ie...a warrant based on probable cause).

    What has officiated all cellular service providers status as "agents for the government" is the "nexus" that was created in or around 2000 when the government's FCC issued a set of rules, called the Enhanced 911 rules (E911 rules), that mandated all wireless carriers to collect precise location information in the near future in order to improve the delivery of emergency services...See "The Mobile Wireless Web, Data,Services and Beyond: Emerging Technologies and Consumer Issues published by the Federal Trade Commission, February 2002.

    When you view this book/pamphlet you will get a unique uncorrupted view of the mindset from a diverse consortium of individuals who we at the forefront of pioneering cellular technology, rules, and safeguards.

    For instance, at the workshop which the aforementioned book is a overview of, there was consensus as to the uncertainty of who CSLI (historical and realtime) belongs to.

    We the People desrves to know who designated CSLI the property of cellular providers when said ownership was clearly uncertain back in 2000.

    We the People deserve to know how, who, when, and where the original intent of the government to collect this information for E911 purposes evolved to criminal investigations.

    We the People deserves to know how the keenest legal minds in the United States allowed legislators to enact SCA 18 U.S.C. 2703 (d) knowing full well cellular providers were government 'agents' and thus any information acquired by them at the behest of the government could only be turned over by abiding by the strictest of constitutional protections.

    We the People deserve to know if any legislators who helped to vote SCA 18 U.S.C. 2703 (d) into being profited from the 5 to 9 billion dollar a year average the Harris Corporation (HRS) made over years since this unconstitutional enactment. The Harris Corporation is the company that makes and sells the devices that capture CSLI and they have been selling these devices such as the stingray to police departments throughout the U.S. .

    We the people deserve to know if any of these legislators had investments in Harris Corporation, or its subsideraries, or in any one of the investment companies that hold Harris Corp stock and thus profited from the more than $100 billion dollars made to investors as a direct result of their unconstitutional enactment.

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