“Courts across the country are grappling with a key question for the information age: When law enforcement asks a company for cellphone records to track location data in an investigation, is that a search under the Fourth Amendment?” Jenna McLaughlin reports for The Intercept. “By a 12-3 vote, appellate court judges in Richmond, Virginia, on Monday ruled that it is not — and therefore does not require a warrant.”
“Research clearly shows that cell-site location data collected over time can reveal a tremendous amount of personal information — like where you live, where you work, when you travel, who you meet with, and who you sleep with,” McLaughlin reports. “And it’s impossible to make a call without giving up your location to the cellphone company.”
“‘Supreme Court precedent mandates this conclusion,’ Judge Diana Motz wrote in the majority opinion. ‘For the Court has long held that an individual enjoys no Fourth Amendment protection ‘in information he voluntarily turns over to [a] third part[y].” The quote was from the 1979 Supreme Court case Smith v. Maryland,” McLaughlin reports. “The 5th, 6th, and 11th circuits have reached the same conclusion.”
Read more in the full article here.
MacDailyNews Take: The U.S. Supreme Court needs to consider third-party doctrine, as does the U.S. Congress, for the digital age.
[Thanks to MacDailyNews Reader “CognativeDisonance” for the heads up.]
I’m not sure that the Supreme Court is the best body to be making far-reaching policy decisions. As Apple has been arguing in the hacking cases, separation of powers suggests that legislative policy should be legislated by elected legislators rather than appointed judges. The judiciary has only been forced into this position because Congress has failed (or refused) to consider these issues and enact a comprehensive legislative scheme to implement Constitutional principles for the modern age. The kicker, of course, is that we might not like what Congress passes!
and besides that…..
i would not go so far as to say that our locational data is voluntarily given to a third party.
they simply record it, of their own volition, without our permission, by making the collection of that data automatic, and making us to agree to that collection as part of our eula in using their equipment.
so if you want to own a cell phone you have to agree to the data collection, without any opportunity to opt out.
that is not what i call voluntary.
it is a circumstance that exists because
1. those companies have simply claimed the right to record that info because it helps them increase their revenue stream.
2. our courts and legislators lack the incentive to help protect what remains of our privacy rights.
Just to respond to a few messages further down the page:
Dr. sparemachinery — Our location data is voluntarily given, in the same sense that our payment of the phone bill is voluntary. We could easily avoid either burden by not contracting for phone service. It is not a necessity like food or air. I suspect that the companies have to track your general location as a practical matter or they would not be able to route incoming calls to your handset or manage the handoff to another tower if you are moving during a call. They keep the data because it is required for troubleshooting and 911 location, among other things. If tracking were not technically necessary, I’m sure somebody would be offering a service to avoid it.
M — No they can’t read your mail without a warrant, because there are statutes making the U.S. Mail sacrosanct and that creates a reasonable expectation of privacy. However, there is nothing to keep law enforcement from looking at the outside of the envelope if the letter is in a public place. In this case, there is no doubt that a warrant would be required to look at the content of the mobile communications, but the metadata is treated like the addresses on the outside of an envelope.
As for “ten years ago, people would say Hell No,” Smith v. Maryland was decided 37 years ago, and involved almost exactly this situation with landlines rather than mobile (which is pretty much the same legally, as opposed to technologically). Even in 1979, only the two most liberal members of a fairly liberal court argued that the result was not required by principles going back many decades before (a third justice acknowledged the precedent, but would have voted to change it).
botvirnnik — I’m not sure how you can blame the current administration for Smith v. Maryland, an opinion written by Harry Blackmun (a Nixon appointee) and joined in by three other Republican appointees and one (White) appointed by Kennedy. If it violates the Fourth Amendment, blame it on the Burger Court. I am not sure how changing Presidents is going to change a judicial precedent that goes back for decades.
How do you destroy liberty?
By killing our rights, one at a time.
Can they read my mail without a warrant? I turn it over to the postal service (3rd party).. Actually asking this and if it is relevant to this discussion. Seems odd. Sad thing..10 years ago people would say hell no..now, it seems, people have given up on privacy. Not trying to sound paranoid..but there are plenty of examples of our government taking advantage of us..and even experimenting on us (WW2 and Cold War).
of course it’s a violation of the Fourth Amendment. The current entire federal government is a violation of the Bill of Rights.
232 days, 11 hours and 59 minutes and this obscenity will be gone from our midst.
We hope!
I think it’s silly (technical term). A few years back, I recall cell phone companies being mandated to track users for 911 calls. Then I read in another column that because we tell people were we are and the phone companies are mandated to log our locations, that now those locations are easily accessible without a warrant. I’m going to be a little cynical here and say that there was a plan all along. The government saying they need our location for emergency purposes to now say well we know where you are so now we’re going to use that information without you permission. hmmm?!?
And just who is it in Congress who continues to foist bills repealing Obama-Care, or hold their breath over their favourite pet nonsense, to hold up appropriations and other silliness without addressing the real problems? Tea baggers, you have no one to blame but yourselves!
Reading the details of this court case reveals that it’s a very sticky, iffy, vague sort of situation. Therefore, I suggest reading the details carefully if you’re interested in what’s actually going on. The case is NOT being accurately portrayed in the press. The headline above, for example, is NOT accurate. It is NOT about blasting open everyone’s cellphone use data whenever law enforcement likes. It IS about old collected data NOT applicable to the old case being saved by law enforcement then hauled off the shelf again and applied to a NEW case. Is that legal? The court is saying ‘yes’.
that also would be unconstitutional, that is known as double jeopardy.
The Constitution for $1200, Alex.
Prosecuting someone twice for two different crimes is not double jeopardy. It never has been, so don’t blame the Obama Administration.
Sorry, but with $0 you don’t get to play Final Jeopardy.
oh okay, it’s pretty convoluted and difficult to understand, thanks.
The scenario is all pre-trial. In this case, the original warrant and case didn’t result in a conviction. If the new case against the guy goes ahead, it would be the first actual trial. Therefore, it’s not related to double jeopardy. The question is whether this violates the Fourth Amendment as the data collected via the first warrant would have been impossible to collect on the second warrant as the guy deleted it all at his end.
thanks, Derek.