Many of these difficult legal questions could be avoided if Congress would simply pass legislation governing this method of investigation.
Right now, all over the country, the FBI obtains sealed (secret) court orders to obtain real time cell site data under a "hybrid theory" combining the Pen/Trap Statute (law for obtaining incoming and outgoing phone numbers) and Stored Communications Act (law for obtaining stored subscriber information from ISPs). However, Pen/Trap says location data cannot be obtained through its operation and the SCA only permits disclosure of "historical" not real time information.
The result is, the FBI obtains information to track individuals under a standard well below probable cause from a magistrate judge. The orders are sealed, and because the order applications are made ex parte, their legality has never been litigated in court or given meaningful judicial review.
Magistrate Judges Stephen Wm. Smith in Texas and Orenstein in New York were the first judges to question the government's theory and deny applications. An application Smith denied in 2010 is the subject of this appeal.
If a cell phone company really had balls, they'd make a website where you can see realtime and historical location data for every cellphone owned by every elected official and federal judge. They have "no privacy interest", after all, so I guess that would be no big deal...
If we're innocent, why do we need to be tracked? If they have no suspicion of guilt, then for what reason do they need data about us?
I want the protection of 'requiring a judge's approval' before police are allowed to track me. The risk of having my self or my information at the mercy of either corrupt, or easily hacked, law enforcement is too great.
This is a difficult issue. For most of us, our cell phone is where our body is, so you're tracking the person. It is easy to imagine ways that this data could be abused.
On the other hand turn it around. Suppose that there was a rash of burglaries and you were the investigating officer. Wouldn't you want to be able to find all cell phones that were in proximity to a significant number of the burglaries at the time that they happened? This kind of speculative data mining could be a good source of leads, but you can't engage in it unless you have a lot of data on a lot of innocent people. (And, as always with data mining, until you have the data, you don't know what questions you want to ask of it.)
But the problem is that if the data is centralized and accessible, the minority who would abuse it will access it as well. And the worse abusers are people like Hoover and Nixon - people who will use this data to try to push political aims.
> Wouldn't you want to be able to find all cell phones that were in proximity to a significant number of the burglaries at the time that they happened?
There was also a recent case where the FBI was looking for a person distributing child pornography on Youtube. They found that 3 of his IP addresses originated at hotels. So they cross-referenced the hotel guest registries and identified the one guy who had been registered at all the hotels at the relevant times.
This seems like a perfectly legitimate method of investigating a crime and I don't think anyone is arguing that police ought to be prevented from doing what they did with the Scarecrow Bandits.
The problem is that the Government wants to be able to target a person and track their movements via a cellphone based only on a showing of reasonable grounds to believe that the location data is relevant and material to an ongoing criminal investigation. This essentially allows the government to conduct fishing expeditions.
> the worse abusers are people like Hoover and Nixon - people who will use this data to try to push political aims.
I would submit that, given the ability to abuse such centralized and accessible information for political aims, a large percentage of people would do so; incentives have a remarkable way of corrupting power. And that's precisely why I oppose such things even when I have nothing to hide.
I don't see it as a difficult issue at all. The effects of false positives (and they are going to be mostly, almost totally, false positives by definition) in your scenario make it a non-starter, period. For property crimes?
I can see a rationale that they aren't really false positives since nobody is being accused or whatever, but that's just moving the goalposts such that it becomes OK to investigate random people like Nixon and Hoover (et al), but I will put good money down on the eventuality of someone with a criminal record, a cellphone, and an airtight alibi getting their home raided and them being injured or killed.
Of course it's a good source of leads, for some value of "lead." That's the problem. By way of analogy, there are plenty of people, some of them extremely high profile, who have criminally affected the world's economies and are getting away with it right this minute, so maybe let's take care of the crimes we have actual evidence of laws being broken before we get all Inspector Gadget about relatively minor crimes.
The only difficult part of the issue is how to explain it in a way that portrays it as both harmless and necessary, because it's neither.
Remember that false positives aren't really a problem to police and especially prosecutors. Most criminal cases in the US don't go to trial, so they just want enough to sweat people into plea-bargaining.
>On the other hand turn it around. Suppose that there was a rash of burglaries and you were the investigating officer. Wouldn't you want to be able to find all cell phones that were in proximity to a significant number of the burglaries at the time that they happened?
Do people seriously believe that investigative detectives for burglaries (or even murders) have such clout and influence as to pass federal laws concerning wiretapping and phone tracking?
This is all about the government wanting the extra ability to gather data on citizens, for political reasons.
The 2012 version of the huge files J.E. Hoover had on everyone that mattered then.
I hope this goes to the Supreme Court. I doubt it will be declared constitutional. Most people aren't even aware the Government is doing this, or at best they think it's just a silly conspiracy theory they've heard from their friends, but don't really believe it. When that's the situation, it should definitely be declared unconstitutional.
The US Supreme Court has shaved the 4th Amendment pretty thin in the last few years. See http://www.fourthamendmentsummaries.com/, "1990s cases" and "Cases after 2000" - there aren't very many of them. One case not mentioned on that web site is last year's "FBI can't track cars by GPS without a warrant" decision, which was made on trespassing grounds.
The US Supreme Court has taken a very legalistic view of what constitutes "search and seizure", what constitutes "in public" and what constitutes "private". These views don't coincide with common usage of any of the words or phrases, so yes, most people would be shocked to find out how they've been snooped on.
But I doubt the current Supreme Court will do anything other than allow it, on some weird technical basis that only lawyers and judges can understand or love.
Legalistic isn't the term - Orwellian is. The Supreme Court has legally defined interstate commerce to mean intrastate, trade to mean possession, and probable to mean possible. Their decisions have increasingly been unconstitutional.
They threw out all hope of remaining remotely constitutional when they ruled in Gonzales v. Raich.
> Most people aren't even aware the Government is doing this, or at best they think it's just a silly conspiracy theory they've heard from their friends, but don't really believe it.
Actually, when I've told people about this, they just shrugged it off. The fact of the matter is, the vast majority of people just don't care about these sorts of things, or think that it's OK for the government to do it.
Given the choice between keeping their anonymity and farmvilling with friends, most people will choose the latter. Especially since most people believe "Obscurity" to still be a valid security technique.
Even worse is the argument that it's OK for the government to spy on people because they personally "have nothing to hide". I hear this argument with astonishing regularity from otherwise highly educated individuals.
People forget McCarthyism; I am fine if this administration has access to my cell phone records, but I would not be fine if the red scare happened again. It is hard to take away power from government once it is considered "settled law".
I am not old enough to state this with confidence, but I strongly suspect that a large minority, if not the majority, of people were in favour of McCarthyism in order to root out those awful communists. People are surprisingly unimaginative and just don't see how it could be turned on them.
>Given the choice between keeping their anonymity and farmvilling with friends, most people will choose the latter.
And most people WONT have a problem caused by choosing the latter.
It's the few people, people who probably wouldn't chose it in the first place, that would get affected.
People like the future Martin Luther Kings and Malcom Xs, Joe Hill, Jimmy Hoffa, victims of the McCarthy persecution, the EFF, whistleblowers, anti-war protesters, OWS, etc etc.
I remember reading stories about how if you leave your bluetooth on, you're basically leaving your phone wide open. These days though, most phones require four digit passcodes and what I assume are fail2ban-like features. Am I wrong to assume that, or does it not matter for other reasons?
I know TV shows like Person of Interest use technology more as a plot device than as a display of possibility, but the idea of forced pairing was a thing at some point, wasn't it?
Right now, all over the country, the FBI obtains sealed (secret) court orders to obtain real time cell site data under a "hybrid theory" combining the Pen/Trap Statute (law for obtaining incoming and outgoing phone numbers) and Stored Communications Act (law for obtaining stored subscriber information from ISPs). However, Pen/Trap says location data cannot be obtained through its operation and the SCA only permits disclosure of "historical" not real time information.
The result is, the FBI obtains information to track individuals under a standard well below probable cause from a magistrate judge. The orders are sealed, and because the order applications are made ex parte, their legality has never been litigated in court or given meaningful judicial review.
Magistrate Judges Stephen Wm. Smith in Texas and Orenstein in New York were the first judges to question the government's theory and deny applications. An application Smith denied in 2010 is the subject of this appeal.
This is Smith's Congressional testimony from 2010 which gives a good (and readable) overview of the problems in the current system: http://or.fd.org/Sady/Judge%20Smith%20testimony.pdf
And here is a law review article that deals with highly convoluted legal issues: http://www.arizonalawreview.org/pdf/53-2/53arizlrev663.pdf