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Arthur T Knackerbracket has processed the following story:
Things continue to change thanks to the Supreme Court’s Carpenter decision. Prior to that, it was assumed the Third Party Doctrine justified all sorts of data dragnets, so long as the data was held by a third party. But that doctrine assumed the data being grabbed by law enforcement was being handed over knowingly and voluntarily. The Carpenter decision pointed out this simply wasn’t true: cell tower location data is demanded from all cell phones in the tower coverage area and location data (along with identifying info about the device itself) was taken, rather than volunteered.
This has led to a number of interesting decisions, including a couple of state-level court decisions regarding mass collections of cell tower location data. Cell tower dumps generate records of all cell phones in certain areas during certain times, the same way geofence warrants work, but using more accurate cell site location info (CSLI).
Now, even with a warrant, courts are finding cell tower dumps to be unconstitutional. In 2022, the top court in Massachusetts said these warrants may still be constitutional, but only if law enforcement followed a stringent set of requirements. Earlier this year, a magistrate judge in Mississippi came down on cell tower dumps even more forcefully, declaring that if geofence warrants (those seeking Google location data) were unconstitutional, then it just made sense warrants seeking more accurate data with a similarly-sized dragnet also violated the Fourth Amendment.
Those rulings are limited to those states (and, in the case of the magistrate judge, likely just limited to his jurisdiction). But now there’s something at a much higher level, which is definitely headed to a showdown at the Ninth Circuit Appeals Court as soon as the DOJ gets around to appealing this ruling. Here’s Matthew Gault, reporting on this decision for 404Media.
The government tried to argue that if the warrant was unconstitutional, it didn’t matter because this really wasn’t a search under the Fourth Amendment. It hinted the Third Party Doctrine applied instead. The court disagrees, citing the expert for the defense, who pointed out not only was the data not voluntarily handed over to cell service providers, but even the de-duplicated list of responding devices turned this into an extremely broad search.
Even if further efforts were made to eliminate false positives, it’s too little too late. A warrant can’t be salvaged because things were done after the warrant had been served and information obtained. It’s a general warrant, says the court, precisely the thing the Fourth Amendment was erected to protect against.
Now, the bad news, at least for Spurlock. Pretty much every judge involved, along with the investigators who crafted the warrant, had almost zero experience in handling cell tower dump warrants. (I suspect that this is because, prior to Carpenter, most law enforcement agencies handled this with subpoenas that weren’t subject to judicial review. On the other hand, this happened in a sparsely populated area where double murders aren’t exactly common, so there may have never been a reason to use one before.) Since everyone appears to be breaking new ground here, the good faith exception applies. No evidence is suppressed.
But this holding stands going forward, which means Nevada law enforcement will need to be a lot more careful when crafting cell tower dump warrants or, better off, avoid them altogether and get back on the right side of the Fourth Amendment’s particularity requirements. Since this requires federal and local law enforcement to be better at their jobs, it’s safe to assume the DOJ will ask for this ruling to be overturned. Until that happens, the law of the land is clear: Cell tower dumps (and geofence warrants) are unconstitutional.
(Score: 2, Interesting) by DadaDoofy on Friday May 09, @01:50PM (6 children)
How could the collection of your cell phone records without any probable cause or justification ever thought to have been legal? I can only believe it's a combination laziness on the part of law enforcement and government actors using it to their political advantage.
(Score: 2) by DannyB on Friday May 09, @02:31PM (3 children)
What I would have expected from police would be a request like this:
We are looking for the one single cell phone, or small number of phones, that were at these specific Target stores at these specific short time intervals when these crimes occurred. We don't care about who else was at those locations at those times.
A WHERE clause on a SQL UPDATE statement is just adding unnecessary complexity to something simple.
(Score: 1, Interesting) by Anonymous Coward on Friday May 09, @03:08PM (2 children)
Still too broad. In fact, your "suggestion" is explicitly in violation of the 4th Amendment, which says in part [wikipedia.org]:
A "warrant" such as you describe doesn't meet those criteria and as such, are invalid on their face. cf. "General warrants."
All that said, at least for now it's just best to leave any devices that can be connected to you personally at home and/or fully powered off (if you can do such a thing with your device). And the police will just have to be satisfied with their ubiquitous CCTV and ALPRs [brennancenter.org].
We've lost empathy for our fellow humans and moved too far away from Blackstone's formulation [wikipedia.org], giving way too much power to those who have repeatedly abused that power. And more's the pity.
(Score: 2) by DannyB on Friday May 09, @07:09PM (1 child)
While I agree with Blacksone's formulation, I don't see the type of request I described as being much different than visiting those stores and looking at their CCTV footage for those specific short time intervals. Other uninvolved persons will no doubt be in the CCTV footage, yet that doesn't prevent viewing CCTV footage to identify the bad guys.
A WHERE clause on a SQL UPDATE statement is just adding unnecessary complexity to something simple.
(Score: 0) by Anonymous Coward on Friday May 09, @07:27PM
It's very different. One is a warrant to seize/search CCTV footage from a specific location (i.e., specificity in the location to be searched and the items to be seized/searched). The other is a general warrant to provide all records of all persons (regardless of whether there is probable cause to search those folks' location history) in a certain geographical area during a certain time period.
The former could actually be valid as justification for a search warrant. The latter is just a fishing expedition drawing in anyone who might have wandered by.
As the law of the land says:
The former (assuming that evidence of criminal activity is likely to be found on such CCTV footage) particularly describes the place to be searched and the persons or things to be seized.
The latter cannot possibly expose evidence of criminal activity as it's just a broad dragnet of all persons in a geographical area -- and there is no "probable cause" to subject anyone who might be in a particular area to an invasive search. What's more, such a "warrant" does not specify the place to be searched or the persons or items to be seized.
So, no. You can try to justify it all you want, but GeoFence warrants are illegal on their face. That the courts have not (until now) said so doesn't make them any more valid. The plain language of the 4th Amendment clearly makes such warrants illegal.
If you don't believe that should be the law of the land, there are ways to change it. But to just ignore the law is something they do in Russia^W The Trump Administration. Just sayin'.
(Score: -1, Flamebait) by Anonymous Coward on Friday May 09, @03:32PM
I can only assume you haven't been paying attention. Wake up and educate yourself. [wikipedia.org] But given that it's you, I won't hold my breath.
Prior to the modern era, the above didn't have the implications (as cell towers and mobile devices didn't exist) it does today. And as times changed, the process/precedents haven't been updated. Rather they've been abused.
This case is some push back on that idea. One can hope that it's just the beginning. Not holding my breath about that either, as when your dear leader says "it's to get the niggers and spics^W^W^W bad guys), you'll roll right over. We've always been at war with Eastasia, right?
(Score: 2) by Frosty Piss on Friday May 09, @03:34PM
It's not "laziness" per se. For many in "law enforcement", it's not about justice and the woke ideas of right and wrong that go with it. It's about power. These people have a sociopathic need to control. Being able to sweep up huge swaths of data on the appearance of being related to the investigation of a known crime, the data can then be examined for other "crimes", and today that more and more means thought crimes.