Despite court ruling, gov’t still wants to track cellphones without a warrant

In its appeal for a rehearing, the Justice Department argued that customer’s forfeit their right to privacy regarding their location when they connect with a mobile network provider. The appeal was filed in the Fourth Circuit Court of Appeals, Washington, DC on Thursday, reported the Intercept.

In August, the federal appellate court ruled 2-1 that law enforcement officials can’t request archived cell-site location information (CSLI) without a warrant.

The appeals case concerns two defendants, Aaron Graham and Eric Jordan, who were indicted for a series of robberies in Baltimore in 2011.

Shortly after the men were arrested, a search warrant was filed with a circuit court, which ordered cell provider Sprint/Nextel to disclose to law enforcement “the identification and address of the towers (cell site locations) related to the use of the defendants’ cellular telephones.”

Law enforcement then used historical cell-site location data going back to 2010 to track the users and link them to other robberies, without ever obtaining a warrant. The defendants argued that access to historical cell-site location information allowed law enforcement to surveil a suspect through a device he carried with him twenty-four hours a day – even to constitutionally protected places such as the home – and this violated the Fourth Amendment. In August, the court agreed.

In its appeal, the Justice Department quoted one of the dissenting judges in saying that the panel’s decision “flies in the face of the Supreme Court’s well-established third-party doctrine,” reported the Intercept.

As noted by the website, the third-party doctrine is a legal theory that “asserts that users voluntarily give up information like location data by subscribing to public services like communications providers.” Therefore, users have “no reasonable expectation of privacy.”

People cannot be deemed to have volunteered to forfeit expectations of privacy by simply seeking active participation in society through use of their cell phones,” the panel wrote in August.

The government argued in its appeal that two Supreme Court decisions from the 1970s affirm the third-party doctrine and that the recent court decision violates those rulings. In United States v. Miller, the Supreme Court ruled that the contents of original checks and deposit slips were “not confidential communications” and were given to a third party (the bank).

In Smith v. Maryland, the high court ruled that a device that records the numbers of outgoing phone calls did not constitute a search in violation of the Fourth Amendment because the numbers dialed were shared with the phone company.

In Graham and Jordan’s case, lawyers argued the robbers did not know which cell phone tower their phones was connecting to, and did not intentionally offer details of their whereabouts to their mobile provider.

The government, meanwhile, argued in its appeal that “it (law enforcement) simply collected historical information from a witness (the phone company) which the witness compiled and maintained in the ordinary course of business.”

The government further argues that the panel’s ruling substantially burdens important government interests as “law enforcement agencies rely on CSLI to investigate and solve serious crimes in which they lack probable cause to obtain a warrant but reasonably believe that the records will be of use.”

A staff attorney with the American Civil Liberties Union told the Intercept that the government “is struggling mightily against the tide.”

“Courts are moving towards recognizing that in the digital age, we need to protect sensitive information … As of now, in five states, they have to get warrants … They’re trying to go back to when it was easier. But it will be hard to prevent it from happening,” said Nate Wessler of the ACLU.

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