Tag Archives: warrant

Government Can Track Cellphones Without Warrants

Mostly everyone has a cell phone.  A lot of smartphones have GPS capabilities.  This can be handy when you are looking for directions and you are lost.  However, what about being tracked?  For instance, unless you change your privacy settings, your photos will keep track of where you took the picture and what time.

The question the Fifth Circuit Court of Appeals decided is whether the government needs a warrant to track you.  In In re: Application of the U.S.A. for Historical Cell Site Data (July 30, 2013 5th Cir. Ct.), the court ruled that obtaining cell-location information without a warrant  did not violate the Fourth Amendment.

When we think of the Fourth Amendment we remember that a search and seizure may require a warrant.  If there is no expectation of privacy, i.e. in a garbage bag we got rid of, then the government wouldn’t need a warrant.  However, if we have an expectation of privacy, i.e. to enter your house, then the government must have a warrant.

An expectation of privacy usually is the crux of a search and seizure case.  Here, the ACLU argued that people have a reasonable expectation of privacy when they are being tracked for a long period of time and the data gathered is collected in great detail.

In this case, this argument was not discussed by the court.

Why would this not be discussed?  The Fourth Amendment deals with government actions.  In other words,  the seizure or search has to be collected by the government.  In a similar case, the Supreme Court had decided that the government must obtain a warrant if it wants to install a GPS tracking device.  See United States v. Jones (2012).

However, this case was found to be different.  The reason for this is because the Fifth Circuit Court of Appeals found that the information was collected by a third-party, i.e. the cell phone carrier.  The court explained,

Where a third party collects information in the first instance for its own purposes, the Government claims that it can obtain this information later with a [section] 2703(d) order, just as it can subpoena other records of a private entity.  We agree.

Id. (citations omitted).

Here, the government was not installing a GPS tracking device.  The Government was accessing a business record owned by carriers.  The court stated:

… cell site information is clearly a business record.  The cell service provider collects and stores historical cell site data for its own business purposes, perhaps to monitor or optimize service on its network or to accurately bill its customers for the segments of its network that they use.   The Government does not require service providers to record this information or store it.  The providers control what they record and how long these records are retained.

Consequently, the court found that the Government did not need a warrant.

via Cops Can Track Cellphones Without Warrants, Appeals Court Rules | Threat Level | Wired.com.

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Filed under civil rights, courts, discovery, electronic discovery, federal, legal decision, legal research, Privacy Rights, technology

Cellphone Tower Tracking Without Court Order Considered in NJ Supreme Court

Does the government need a warrant when it uses cellphone towers to track individuals? That’s a question currently being considered by the New Jersey Supreme Court.

In State of New Jersey v. Thomas W. Earls, the government argues that the tracking in question doesn’t invade someone’s privacy, according to Record of Bergen County, N.J. Privacy groups hope the court will see things differently, and build on this year’s U.S. Supreme Court opinion that found attaching a GPS device on an individual’s vehicle without a warrant violated his 4th Amendment rights. Oral arguments take place Monday.

Thomas W. Earls was suspected in a series of residential burglaries. Police received real-time cellphone locations from his provider three times on one day, according to an amicus brief (PDF) filed by the American Civil Liberties Union of New Jersey Foundation and the Association of Criminal Defense Lawyers of New Jersey. Earls pleaded guilty to burglary and theft charges, but later reopened his case.

In July 2011, the Supreme Court of New Jersey Appellate Division found that determining Earls’ general location on public roads, or other places where there is no expectation of privacy, did not violate his constitutional rights.

via Cellphone Tower Tracking Without Court Order Considered in NJ Supreme Court – News – ABA Journal.

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Proposed bill requires warrants to search e-mails

US Senator Leahy proposes bill requiring warrants to search e-mails

US Senator Patrick Leahy (D-VT) introduced a bill Tuesday amending the 25-year-old Electronic Communications and Privacy Act (EPCA), which he authored, to require the government to obtain a warrant before searching private e-mails and other data stored on an internet cloud. The bill removes the 180-day rule that only requires a warrant to search e-mails that are unopened and stored for less than 180 days.

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Filed under Pending Legislation