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posted by janrinok on Saturday June 23 2018, @11:14AM   Printer-friendly
from the only-got-to-ask dept.

The Supreme Court on Friday put new restraints on law enforcement's access to the ever-increasing amount of private information about Americans available in the digital age.

In the specific case before the court, the justices ruled that authorities generally must obtain a warrant to gain access to cell-tower records that can provide a virtual timeline and map of a person's whereabouts.

Chief Justice John G. Roberts Jr. wrote the 5 to 4 decision, in which he was joined by the court's liberal members. Each of the dissenting conservatives wrote separate opinions.

https://www.washingtonpost.com/politics/courts_law/supreme-court-rules-that-warrant-is-needed-to-access-cell-tower-records/2018/06/22/4f85a804-761e-11e8-805c-4b67019fcfe4_story.html?utm_term=.a83a00384150


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  • (Score: 1, Redundant) by Arik on Saturday June 23 2018, @12:05PM (30 children)

    by Arik (4543) on Saturday June 23 2018, @12:05PM (#697175) Journal
    When I read this:

    "Chief Justice John G. Roberts Jr. wrote the 5 to 4 decision, in which he was joined by the court's liberal members. Each of the dissenting conservatives wrote separate opinions"

    I laughed. Then I took a moment to rtfa and found it actually did offer some sort of support for the statement, so I have to give them that.

    Quote:
    "Kennedy pointed out it was a serious departure from the court’s previous holdings about records held by third parties. He pointed out the government may use a subpoena — rather than a harder-to-obtain warrant — to obtain bank records, telephone records and credit card statement as investigative tools.

    “The troves of intimate information the government can and does obtain using financial records and telephone records dwarfs what can be gathered from cell-site records,” Kennedy wrote.

    <Snip>
    Quote:

    Alito said the majority’s “desire to make a statement about privacy in the digital age” was misdirected.

    “Some of the greatest threats to individual privacy may come from powerful private companies that collect and sometimes misuse vast quantities of data about the lives of ordinary Americans,” he wrote. “If today’s decision encourages the public to think that this court can protect them from this looming threat to their privacy, the decision will mislead as well as disrupt.”

    /Q

    So yeah, those are actually some decent arguments and recognizably conservative in a sense.

    What's insane is that people just dumbly accepted the completely insecure infrastructure, from the devices to the protocols to the towers, that makes all this eavesdropping not only possible but inevitable, for the most part without a grumble or a twinge. And Alito is right. I still wouldn't have voted with him but he makes an excellent point. There's no legal solution to a technical problem. The law can only attempt to limit the damage, and reasonable arguments can be made that it shouldn't even do that. But what are the prospects for a technical solution? You could build sane devices but you couldn't outsource them so freely, so they'd be more expensive, and more importantly all the commercial and governmental interests would simply move together to lock any sane system out.

    This is a creeping process that's already fairly well along. For instance, even if you have an actual website that works in a sane web browser, if that website winds up behind cloudfront or a similar 'service' it disappears from the web and ceases to be accessible. A significant portion of the web has done just that simply over the last 24 months, even the last 12.

    --
    If laughter is the best medicine, who are the best doctors?
    • (Score: 1) by Ethanol-fueled on Saturday June 23 2018, @01:01PM (5 children)

      by Ethanol-fueled (2792) on Saturday June 23 2018, @01:01PM (#697180) Homepage

      Could this be somehow related to the mysterious IMSI catchers located in DC and Herndon, VA; and all those other strategically-located places?

      This is why Trump wins. The crooks already had everything set up, but somebody with balls had to have something to say about it. You fifth-columnist bastards are going to fry.

      • (Score: 2, Touché) by Anonymous Coward on Saturday June 23 2018, @01:27PM (3 children)

        by Anonymous Coward on Saturday June 23 2018, @01:27PM (#697185)

        Could this be somehow related to the mysterious IMSI catchers located in DC and Herndon, VA; and all those other strategically-located places?

        Well, since Trump uses an off-the-shelf Android for calls and tweets (he refuses to use a secured phone), I assumed those stingrays were to capture his conversations.

        This is why Trump wins.

        Oh, yes ... all the winning. We can count all his winning on one hand with enough fingers left over to poke him in the eyes.

        • (Score: -1, Redundant) by Anonymous Coward on Saturday June 23 2018, @04:03PM (2 children)

          by Anonymous Coward on Saturday June 23 2018, @04:03PM (#697217)

          North Korea?

          If Trump woke up tomorrow, and told the world that he dreamed a cure for all cancers, and his dream proved to be accurate, you would still demonize him.

          • (Score: 1, Informative) by Anonymous Coward on Saturday June 23 2018, @05:25PM

            by Anonymous Coward on Saturday June 23 2018, @05:25PM (#697247)

            Not sure what North Korea has to do with my post (nothing has changed there except Trump gave Kim a handjob). But Trump, he lies so often that I would have to go outside and look for myself if he was soaking wet and said it was raining. He'd rather climb a tree to tell a lie than stay on the ground to tell the truth. With Trump everything is always about Trump.

            I'm sure Trump dreams he cures cancer every night. And saves the world. And screws the world. And has statues erected of himself. And is emperor for life. And is a Viking.

          • (Score: 2) by takyon on Saturday June 23 2018, @07:20PM

            by takyon (881) <reversethis-{gro ... s} {ta} {noykat}> on Saturday June 23 2018, @07:20PM (#697317) Journal

            You're declaring victory a little soon there.

            --
            [SIG] 10/28/2017: Soylent Upgrade v14 [soylentnews.org]
      • (Score: 4, Informative) by ilPapa on Saturday June 23 2018, @04:52PM

        by ilPapa (2366) on Saturday June 23 2018, @04:52PM (#697233) Journal

        This is why Trump wins.

        I think we have a more reasonable explanation about "why Trump wins".

        https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2685627 [jamanetwork.com]

        --
        You are still welcome on my lawn.
    • (Score: 2) by Immerman on Saturday June 23 2018, @01:16PM

      by Immerman (3985) on Saturday June 23 2018, @01:16PM (#697183)

      Oh, Alito makes sense, right up to the “If today’s decision encourages the public to think that this court can protect them from this looming threat to their privacy, the decision will mislead as well as disrupt.”

      Anyone paying attention already knows the problem goes far beyond government monitoring - and "the public" can't be bothered to think about it. The only issue being settled is whether the government, with it's much more varied and insidious powers should *also* get effectively unrestricted access to that data.

    • (Score: 5, Insightful) by digitalaudiorock on Saturday June 23 2018, @01:57PM (1 child)

      by digitalaudiorock (688) on Saturday June 23 2018, @01:57PM (#697194) Journal

      What's insane is that people just dumbly accepted the completely insecure infrastructure, from the devices to the protocols to the towers, that makes all this eavesdropping not only possible but inevitable, for the most part without a grumble or a twinge. And Alito is right. I still wouldn't have voted with him but he makes an excellent point. There's no legal solution to a technical problem.

      I don't get the logic here. The fact that your phone needs to connect to towers that are near your location is pretty much a given isn't it? How is that a "technological problem" that can be fixed? The fact that they track and keep that information in the first place...let alone what gets done with it very much ARE legal problems.

      I guess I understand the logic to a point, but it seems to imply that unreasonable searches are OK and long as they're not performed by law enforcement, but rather by corporations who later must give it law enforcement on demand. In that case I say outlaw the tracking of that data in the first place...still a legal issue.

      • (Score: 4, Informative) by frojack on Saturday June 23 2018, @06:21PM

        by frojack (1554) on Saturday June 23 2018, @06:21PM (#697297) Journal

        I don't get the logic here. The fact that your phone needs to connect to towers that are near your location is pretty much a given isn't it? How is that a "technological problem" that can be fixed? The fact that they track and keep that information in the first place...let alone what gets done with it very much ARE legal problems.

        Exactly.

        The system has to know which lobe of which tower your phone is connected to in order to do basic things like ring your phone when a call comes in.

        However, They probably don't need to retain this information once your phone disconnects from that tower, because you drove out of range.

        The fact that they do keep this information probably helps more people than it hurts. Missing persons, etc. But even that is arguable these days.

        NOTE:
        There were actually MUCH better articles about this than the WAPost article, as far as reporting the ramifications of this ruling. Read Curt Levey's" article. [foxnews.com]

        The ruling strikes at the heart of The Supreme Court's 40 year old Third-Party Doctrine. That doctrine holds that no search or seizure occurs when the government obtains data that the accused has voluntarily conveyed to a third party – in this case, one's wireless provider.

        The court concluded that the voluntary conveyance assumption behind the Third-Party Doctrine just doesn't hold up when it comes to cell phone location data, because "a cell phone logs a cell-site record by dint of its operation, without any affirmative act on the part of the user beyond powering up."

        Additionally, the Justices serve notice on the "No right to privacy in a public place" apologists:

        More generally, the justices recognized that individuals “have a reasonable expectation of privacy in the whole of their physical movements. ... Allowing government access to cell-site records contravenes that expectation. ... When the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user."

        While the court did say:

        "Our decision today is a narrow one. We do not express a view on (scenarios) not before us."

        they also telegraphed their expectations of a flood of litigation based on this ruling, which is far from narrow in its implications. It strikes at the very heart of the Third Party Doctrine, and could lead to eventual trashing of the Stored Communications Act (SCA). [wikipedia.org]

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    • (Score: 2) by The Mighty Buzzard on Saturday June 23 2018, @04:24PM (14 children)

      And this is why you want strict constitutionalists on the bench rather than someone who is going to rule your way on $issue while ignoring the constitution. Winning a decision that you should have lost is not a good thing. It means your government is bending the law to suit itself. You know, practicing tyranny.

      --
      My rights don't end where your fear begins.
      • (Score: 4, Insightful) by Whoever on Saturday June 23 2018, @04:55PM (10 children)

        by Whoever (4524) on Saturday June 23 2018, @04:55PM (#697234) Journal

        Strict constitutionalists don't exist. Only idealogues who claim to be strict constitutionalists, typically when they are taking rights away from individuals.

        No strict constitutionalist would go along with the current definition of the Interstate Commerce clause, where the word "affects" has been added in by the Supreme Court.

        • (Score: 3, Insightful) by The Mighty Buzzard on Saturday June 23 2018, @05:52PM (4 children)

          I agree with the latter and say you're projecting on the former. I am absolutely a strict constitutionalist. I believe every single bit of it needs to be interpreted as it was originally written and meant, even the bits I disagree with. If it's going to be changed, it needs to be done via amendment rather than judicial fiat.

          --
          My rights don't end where your fear begins.
          • (Score: 0) by Anonymous Coward on Saturday June 23 2018, @09:28PM (3 children)

            by Anonymous Coward on Saturday June 23 2018, @09:28PM (#697351)

            Okay, what's the original meaning of "probable cause" and the qualifications for "unreasonable search and seizures"? Please site your references. Or should the judges rule nothing is probable cause and every search is unreasonable and delete those words from the amendment via fiat?

            • (Score: 0) by Anonymous Coward on Saturday June 23 2018, @09:48PM (2 children)

              by Anonymous Coward on Saturday June 23 2018, @09:48PM (#697361)

              Every search without a warrant is unreasonable.

              • (Score: 0) by Anonymous Coward on Saturday June 23 2018, @09:56PM (1 child)

                by Anonymous Coward on Saturday June 23 2018, @09:56PM (#697364)

                Then why isn't the wording, "The right of the people to be secure in their persons, houses, papers, and effects, against Warrantless searches and seizures..."? I see no way for a strict interpretation can lead to your conclusion.

                • (Score: 0) by Anonymous Coward on Sunday June 24 2018, @09:30AM

                  by Anonymous Coward on Sunday June 24 2018, @09:30AM (#697488)

                  Well, I'm not a strict constitutionalist. All I care about is maximizing individual liberties.

        • (Score: 1, Flamebait) by frojack on Saturday June 23 2018, @06:35PM (4 children)

          by frojack (1554) on Saturday June 23 2018, @06:35PM (#697302) Journal

          Strict constitutionalists don't exist.

          Yes they do.
          Not only in the absolute but also in degrees.

          There are none on this court, because liberals will never allow that to happen, their agenda needs a "flexible" constitution, one that can be changed by presidential edict when they are in power. Ok, go ahead, mod this troll. But you KNOW its correct.

          --
          No, you are mistaken. I've always had this sig.
          • (Score: 4, Informative) by Whoever on Saturday June 23 2018, @07:53PM (3 children)

            by Whoever (4524) on Saturday June 23 2018, @07:53PM (#697329) Journal

            I find it hilarious that conservatives continue to blame the actions of Republicans (the very people the conservatives voted for) on liberals.

            Get a clue and take responsibility for your own actions. Stop being a snowflake.

            Republicans stole a Supreme Court nomination from Obama and put in their own man. If he isn't a strict constructionist, then it's entirely the fault of Republicans and liberals had nothing to do with it.

            • (Score: 0, Troll) by frojack on Saturday June 23 2018, @09:39PM (2 children)

              by frojack (1554) on Saturday June 23 2018, @09:39PM (#697357) Journal

              So in your world, all a Republican had to do was nominate, and that assured presence on the bench?

              How do you find your own ass to wipe it when you are that dumb?

              --
              No, you are mistaken. I've always had this sig.
      • (Score: 5, Insightful) by ilPapa on Saturday June 23 2018, @04:56PM (2 children)

        by ilPapa (2366) on Saturday June 23 2018, @04:56PM (#697235) Journal

        And this is why you want strict constitutionalists on the bench

        The "strict constitutionalists" on the bench all voted in favor of letting the government collect your personal data without a warrant.

        The thing about "strict constitutionalists" is that they always side with authoritarianism. It's the long con of the American Experiment: write lots of pretty words about Liberty and Equality to confuse the yahoos, but keep the fascists in power at all costs.

        --
        You are still welcome on my lawn.
        • (Score: 3, Insightful) by The Mighty Buzzard on Saturday June 23 2018, @05:53PM (1 child)

          Sigh. They are not even constitutionalists, much less strict ones. They're just partisan shills same as the other five.

          --
          My rights don't end where your fear begins.
          • (Score: 3, Insightful) by The Mighty Buzzard on Saturday June 23 2018, @06:01PM

            P.S. Here's a quick test to determine if someone is a partisan shill or a strict constitutionalist: if they ever remotely consider the effect a ruling would have, they're a shill. The constitution says what it says and consequences be damned. Even if it needs changing, the judiciary do not have legal authority to do so.

            --
            My rights don't end where your fear begins.
    • (Score: 3, Insightful) by Whoever on Saturday June 23 2018, @04:51PM (4 children)

      by Whoever (4524) on Saturday June 23 2018, @04:51PM (#697231) Journal

      What's insane is that bank records (clearly "papers") are not protected by the 4th.

      • (Score: 2) by The Mighty Buzzard on Saturday June 23 2018, @05:55PM

        No kidding. Even if you're going off the "reasonable expectation of privacy" test, I know I damned sure expect my business records to be confidential from the government short of a warrant.

        --
        My rights don't end where your fear begins.
      • (Score: 1, Redundant) by frojack on Saturday June 23 2018, @06:43PM (2 children)

        by frojack (1554) on Saturday June 23 2018, @06:43PM (#697304) Journal

        There is no way to use a bank without the bank keeping records. So they were never "Your" bank records anyway. They were always the bank's records.

        You don't want bank records, then don't use banks for transfer of funds anywhere beyond Bank to own Pocket or vice versa.

        Go cash, or crypto. (But choose wisely, most crytocurrency is not designed for privacy - exactly the opposite).

        --
        No, you are mistaken. I've always had this sig.
        • (Score: 2, Insightful) by Anonymous Coward on Saturday June 23 2018, @09:13PM (1 child)

          by Anonymous Coward on Saturday June 23 2018, @09:13PM (#697347)

          Doctors also keep extensive records, but we have the concept of patient doctor confidentiality. Photographers require a model consent form even though the photographer holds the copyright on the photo.

          The problem is that the businesses are in bed with government so we end up with "We'll let you monetize the money you collected on other people if you let us have it for free whenever the whim strikes us."

          • (Score: 0) by Anonymous Coward on Saturday June 23 2018, @09:58PM

            by Anonymous Coward on Saturday June 23 2018, @09:58PM (#697366)

            "We'll let you monetize the money you collected on other people if you let us have it for free whenever the whim strikes us."

            Dammit, that should be "...the data you collected..."

    • (Score: 0) by Anonymous Coward on Saturday June 23 2018, @09:42PM

      by Anonymous Coward on Saturday June 23 2018, @09:42PM (#697358)

      "Kennedy pointed out it was a serious departure from the court’s previous holdings about records held by third parties. He pointed out the government may use a subpoena — rather than a harder-to-obtain warrant — to obtain bank records, telephone records and credit card statement as investigative tools.

      So? People need to stop appealing to faulty precedent to justify more anti-constitutional rulings.

  • (Score: 0) by Anonymous Coward on Saturday June 23 2018, @01:34PM

    by Anonymous Coward on Saturday June 23 2018, @01:34PM (#697188)

    What happens to all prior convictions based on improperly acquired evidence?

    ``the improperly convicted remain imprisoned and have to appeal individually'', or ``vacate all convictions involving such evidence, and make the LEOs retry each case individually''?

    What happens to those in the chain of command who permitted violation of the constitution?

    Nothing or a criminal trial?

    Probably the first in both cases.

    (I know nothing about law, but something seems deeply wrong with just shrugging and keeping the improperly convicted imprisoned, even temporarily. The guilty going free seems a good disincentive to keep cops honest, because it stays the hand of even those willing to sacrifice their career for justice-as-they-judge-it when they look to ignore rule of law, and rule of law seems more important than justice-as-random-cops-judge-it.)

  • (Score: 3, Insightful) by Runaway1956 on Saturday June 23 2018, @04:07PM (7 children)

    by Runaway1956 (2926) Subscriber Badge on Saturday June 23 2018, @04:07PM (#697218) Journal

    Once again, the libs got it right. Government has no right, or authority, to track it's citizens. And, giving them the authority to track non-citizens and/or convicts and/or suspects as they move about the general population is just an invitation to use a backdoor.

    Government should ALWAYS be required to get a warrant. Always, and forever, Amen.

    • (Score: 2, Interesting) by The Mighty Buzzard on Saturday June 23 2018, @04:24PM (2 children)

      Damned skippy.

      --
      My rights don't end where your fear begins.
    • (Score: 2) by Whoever on Saturday June 23 2018, @04:57PM (2 children)

      by Whoever (4524) on Saturday June 23 2018, @04:57PM (#697236) Journal

      Worse still, it allows rogue law enforcement to track politicians, with a view to blackmailing them.

      Note: why is there is a delay enforced between posts for logged-in posters? It's not like the site is flooded with posts.

      • (Score: 0) by Anonymous Coward on Saturday June 23 2018, @05:29PM

        by Anonymous Coward on Saturday June 23 2018, @05:29PM (#697250)

        Note: why is there is a delay enforced between posts for logged-in posters? It's not like the site is flooded with posts.

        And we like to keep it that way, TYVM.

      • (Score: 0) by Anonymous Coward on Saturday June 23 2018, @06:03PM

        by Anonymous Coward on Saturday June 23 2018, @06:03PM (#697283)

        > Worse still, it allows rogue law enforcement to track politicians, with a view to blackmailing them.

        Like the FBI monitoring collusion with foreign government? Yep that rogue enforcement must be stopped NOW. #collusion

    • (Score: 0) by Anonymous Coward on Saturday June 23 2018, @05:07PM

      by Anonymous Coward on Saturday June 23 2018, @05:07PM (#697239)

      i think it's ridiculous anyone was even dissenting. their flimsy excuses are lame.

  • (Score: 3, Informative) by MrGuy on Sunday June 24 2018, @01:42AM

    by MrGuy (1007) on Sunday June 24 2018, @01:42AM (#697426)

    Headline is absolutely wrong. I realize the press reporting is also wrong in many stories on this. But it's important.

    What the court specifically ruled was that the police tracking an individual's location continuously over the course of seven days was not constitutional without a warrant.

    The decision is narrow, and does NOT set a blanket requirement a warrant for all requests for cell phone data. It carves out multiple cases that it specifically does NOT cover, including getting all individuals in an area, or tracing a suspect "temporarily," or checking whether someone was in a particular place at a particular time.

    The ruling is considerably better news than if things had gone the other way, but this is nowhere near a ruling that "cell tower access requires a warrant." They ruled it's required in one specific case, and indicates it's probably NOT required in many, many others.

    Scotusblog's [scotusblog.com] Amy Howe provides a more accurate assessment of what was actually ruled.

    Roberts emphasized that today’s ruling “is a narrow one” that applies only to historical cell-site location records. He took pains to point out that the ruling did not “express a view on” other privacy issues, such as obtaining cell-site location records in real time, or getting information about all of the phones that connected to a particular tower at a particular time. He acknowledged that law-enforcement officials might sometimes still be able to obtain cell-site location records without a warrant – for example, to deal with emergencies such as “bomb threats, active shootings, and child abductions.” And in a footnote, he also left open the possibility that law-enforcement officials might not need a warrant to obtain cell-site location records for a shorter period of time than the seven days at issue in Carpenter’s case – which might allow them to get information about where someone was on the day of a crime, for example. But what law-enforcement officials do not have, he wrote in closing, is “unrestricted access to a wireless carrier’s database of” cell-site location information.

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