Score One For The 4th Amendment: Appeals Court Says Police Need A Warrant To Track Phone Users' Location
In this case, the defendant, Quartavius Davis, was accused of a bunch of crimes, involving robbing a bunch of stores. Among the variety of evidence against him was cell phone location data -- specifically 11,606 location records. Davis argued that the data was collected without a warrant, violating his 4th Amendment rights (he also has other issues with the way the case was handled and challenges some other aspects as well, but we'll focus on the 4th Amendment issue concerning his location data). The court notes that other courts are still struggling with this issue, and looks to the Supreme Court's famous ruling in the Jones case, involving whether or not a warrant is needed to attach a GPS device to a car. As we noted then, that ruling stopped short of really examining if gathering up location data required a warrant, though some of the side opinions (mainly the concurrence by Justice Sotomayor) discussed the idea. This ruling looks back at some history around the 4th Amendment, and the evolving view concerning "trespass theory" vs "privacy theory," before digging into Jones. The Jones case, you may recall, was decided on the idea that putting the device on the car was a form of "trespass," leaving aside the privacy aspect. But, obviously, this case is different. Thankfully, the court takes some instruction from the concurrences that do discuss privacy theory, and see how they apply in this case.
But, in an important way, the court seems to go even further. While much of the focus in the Jones case was on the "mosaic theory" of linking together a bunch of individual location data points to create a picture that reveals something people expected to be kept private, this ruling notes that even a single data point may be enough to violate the expectation of privacy: One’s cell phone, unlike an automobile, can accompany its owner anywhere. Thus, the exposure of the cell site location information can convert what would otherwise be a private event into a public one. When one’s whereabouts are not public, then one may have a reasonable expectation of privacy in those whereabouts. Therefore, while it may be the case that even in light of the Jones opinion, GPS location information on an automobile would be protected only in the case of aggregated data, even one point of cell site location data can be within a reasonable expectation of privacy. In that sense, cell site data is more like communications data than it is like GPS information. That is, it is private in nature rather than being public data that warrants privacy protection only when its collection creates a sufficient mosaic to expose that which would otherwise be private. The court also rejects the idea that the information is not private just because it puts the defendant near the scene of a crime: The prosecutor at trial stressed how the cell phone use of the defendant established that he was near each of six crime scenes. While committing a crime is certainly not within a legitimate expectation of privacy, if the cell site location data could place him near those scenes, it could place him near any other scene. There is a reasonable privacy interest in being near the home of a lover, or a dispensary of medication, or a place of worship, or a house of ill repute. Again, we do not see the factual distinction as taking Davis’s location outside his expectation of privacy. That information obtained by an invasion of privacy may not be entirely precise does not change the calculus as to whether obtaining it was in fact an invasion of privacy. And, finally, the court addresses the famed "third party doctrine" issue, of whether or not Davis gave up his right to privacy to this information because it's been "given" to a third party (i.e., the mobile phone operators). The court is not convinced and (thankfully) explains how Smith v. Maryland (that key case that so many third party doctrine claims rely on) doesn't make sense here, relying on a ruling from the 3rd Circuit, stating that because Davis did not "voluntarily" shared this information with the mobile operator, the third party doctrine does not apply (amusingly, the court even cites the government's own arguments to support the lack of a voluntary handover): The reasoning in Smith depended on the proposition that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties,” .... The Third Circuit went on to observe that “a cell phone customer has not ‘voluntarily’ shared his location information with a cellular provider in any meaningful way.” That circuit further noted that “it is unlikely that cell phone customers are aware that their cell phone providers collect and store historical location information.” ... (emphasis added). Therefore, as the Third Circuit concluded, “when a cell phone user makes a call, the only information that is voluntarily and knowingly conveyed to the phone company is the number that is dialed, and there is no indication to the user that making that call will also locate the caller.” ... Even more persuasively, “when a cell phone user receives a call, he hasn’t voluntarily exposed anything at all.” ....
Supportive of this proposition is the argument made by the United States to the jury. The prosecutor stated to the jury “that obviously Willie Smith, like [Davis], probably had no idea that by bringing their cell phones with them to these robberies, they were allowing [their cell service provider] and now all of you to follow their movements on the days and at the times of the robberies . . . .” Just so. Davis has not voluntarily disclosed his cell site location information to the provider in such a fashion as to lose his reasonable expectation of privacy. In short, we hold that cell site location information is within the subscriber’s reasonable expectation of privacy. The obtaining of that data without a warrant is a Fourth Amendment violation. That said, the court still decides to not overturn the original ruling, saying that the court ruled in good faith. However, it still means that future cases will require a warrant for this information (within areas covered by the 11th Circuit). It seems likely that this, or another similar case in a different circuit, will eventually make it to the Supreme Court, but this is a very good ruling in the meantime.
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Law Enforcement Agencies Continue To Obtain Military Equipment, Claiming The United States Is A 'War Zone'
That law enforcement agencies across the US are swiftly converting themselves into military outfits is hardly a surprise at this point. The problem is that nothing seems to be slowing them down, not even the dismayed reactions of citizens supposedly under their care.
The government's desire to offload its unused military hardware at deeply discounted rates has turned a few outliers into the new normal. Towns as with populations well under the 10,000 mark have secured Mine-Resistant Ambush Protected (MRAP) vehicles, supposedly in order to keep up with a non-existent arms race between the good guys and the bad guys.
The MRAPs are only the most visible symptom of law enforcement's desire to dress for battle. Along with the vehicles (which normally run from $250,000-$750,000 but are routinely paid for by DHS grants awarded to requests that mention the word "terrorism" or "drugs" in a sufficiently terrified manner), agencies are also picking up military-grade weapons like grenade launchers and automatic weapons. The low prices and large grants make this an opportunity few agencies are able to resist.
The problems with this sort of ad hoc "mobilization" are numerous. The dangers of outfitting police with military gear can best be signaled with a combination of "if all you have is a hammer..." and Chekhov's Gun. If you give police military gear, they're going to want to use it. The very occasional shootout with heavily-armed criminals simply won't satisfy the urge to deploy the new acquisitions. The slightly-more-occasional no-knock warrant served in the dead of night to known drug offenders won't sufficiently scratch the itch. Consequently, this: Police SWAT teams are now deployed tens of thousands of times each year, increasingly for routine jobs. Masked, heavily armed police officers in Louisiana raided a nightclub in 2006 as part of a liquor inspection. In Florida in 2010, officers in SWAT gear and with guns drawn carried out raids on barbershops that mostly led only to charges of “barbering without a license.” All the training and all the equipment obtained over the years to… crack down on unlicensed barbering. (Or check water quality/"rescue" a baby deer from an animal shelter.) Square that with this statement by David Lutz, chief of the Edinburgh (IN) police department: Lutz fully supports using the MRAP. "Oh, yeah, anything for the safety of officers," he said. "SWAT is after the worst of the worst. It's what they do." Crime, including domestic terrorism -- the fear most commonly cited in equipment requests -- has never been lower. But the nearly universal response has been to escalate. With no data on their sides, defenders of these acquisitions are forced to rely on speculation and worst-case hypotheticals to defend bringing an MRAP into communities where violent crimes like homicide are nearly nonexistent. “I don’t like it. I wish it were the way it was when I was a kid,” [Neenah, WI police chief Kevin Wilkinson] said. But he said the possibility of violence, however remote, required taking precautions. Remote possibilities are the stated "goal." The reality is raided barbershops.
Others see it as nothing more than the natural progress of law enforcement, so entirely normal that what citizens perceive as a shift towards a police state is actually something so innocuous it can be taken to local schools to impress the kids. Capt. Chris Cowan, a department spokesman, said the vehicle “allows the department to stay in step with the criminals who are arming themselves more heavily every day.” He said police officers had taken it to schools and community events, where it was a conversation starter. Again, the facts simply don't bear out this statement. Criminals aren't arming themselves more heavily every day. Crime stats don't bear that out. In other nations, this is happening, but the United States is not ground-zero for a drug war -- or even a real war, for that matter. But yet more and more law enforcement agencies are pretending Neenah, WI and Pulaski County, IN (pop. 13,124) are the new Kabul, Afghanistan. [Warning: AUTOPLAY] "The United States of America has become a war zone," he said. "There's violence in the workplace, there's violence in schools and there's violence in the streets. You are seeing police departments going to a semi-military format because of the threats we have to counteract. If driving a military vehicle is going to protect officers, then that's what I'm going to do." (Pulaski County Sheriff Michael Gayer) The unintentionally irony of this claim (which also happens to be both completely ridiculous and profoundly disturbing) is that these "new war zones" will apparently be populated by US citizens returning from the "old" war zones. This is what's awaiting our nation's military veterans: their old equipment being deployed against them, because if they killed overseas, they'll probably just keep on killing when they get home. In the Indianapolis suburbs, officers said they needed a mine-resistant vehicle to protect against a possible attack by veterans returning from war.
“You have a lot of people who are coming out of the military that have the ability and knowledge to build I.E.D.’s and to defeat law enforcement techniques,” Sgt. Dan Downing of the Morgan County Sheriff’s Department told the local Fox affiliate, referring to improvised explosive devices, or homemade bombs. Sergeant Downing did not return a message seeking comment. Law enforcement agencies seem to want a war. And if the public fails to give them one, they'll apparently manufacture one themselves by sending heavily-armed men to enforce hairdresser regulations and use MRAPs to break up knife fights. On the bright side, this issue is receiving more and more attention, but so far, the ability of law enforcement agencies to obtain military gear far outpaces efforts directed at tempering this activity.
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