The US Court of Appeals ruled: Police can track our cell phones without a warrant.

The United States Court of Appeals for the Sixth Circuit ruled Tuesday that police can use cell phone data obtained without a warrant to establish an individual’s location.

The case, United States v. Skinner, involved a suspected drug trafficker, Melvin Skinner, who was tracked and arrested by the Drug Enforcement Administration (DEA).

“The drug runners in this case used pay-as-you-go (and thus presumably more difficult to trace) cell phones to communicate during the cross country shipment of drugs,” Judge John Rogers wrote in his opinion (PDF). “Unfortunately for the drug runners, the phones were trackable in a way they may not have suspected. The Constitution, however, does not protect their erroneous expectations regarding the undetectability of their modern tools.”

The U.S. Supreme Court ruled in January that police could not plant a GPS tracking device on a suspect’s car without obtaining a warrant. However, Rogers ruled that the Fourth Amendment did not prevent law enforcement agencies from tracking a cell phone’s location.

“Skinner did not have a reasonable expectation of privacy in the data emanating from his cell phone that showed its location,” Rogers wrote. “Skinner himself obtained the cell phone for the purpose of communication, and that phone included the GPS technology used to track the phone’s whereabouts.”
“Law enforcement tactics must be allowed to advance with technological changes, in order to prevent criminals from circumventing the justice system,” he added.

Cell phones continuously transmit data to cell-sites scattered across the nation. The cell-sites are operated by cell phone service providers, who keep records of the cell phone’s geolocational data.

Law enforcement agencies can obtain cell phone records from service providers, giving them access to the phone’s locational data. In addition, computers scientists have found it is relatively easy and inexpensive to set up a device to track a cell phone’s position, without any collaboration with cell phone service providers.

According to an investigation by the American Civil Liberties Union, cell phone tracking by police is widespread. While some police departments obtain a warrant to track cell phones, many do not.
http://www.rawstory.com/rs/2012/08/14/appeals-court-police-can-track-cell-phones-without-warrant/

Appeals Court ok's warrantless, real-time mobile phone tracking.

A federal appeals court on Wednesday said the authorities do not need a probable-cause warrant to track a suspect’s every move via GPS signals from a suspect’s mobile phone.

The 6th U.S. Circuit Court of Appeals, ruling 2-1, upheld a 20-year term for a drug courier nabbed with 1,100 pounds of marijuana in a motorhome camper the authorities tracked via his mobile phone pinging cell towers from Arizona to a Texas truck stop.

The decision, a big boost for the government’s surveillance powers, comes as prosecutors are shifting their focus to warrantless cell-tower location tracking of suspects in the wake of a Supreme Court ruling in January sharply limiting the use of GPS vehicle trackers. The Supreme Court found law enforcement should acquire probable-cause warrants from judges to affix GPS devices to vehicles and monitor their every move.

The court of appeals ruling comes a month after a congressional inquiry found that law enforcement made 1.3 million requests for cellphone data last year alone while seeking out subscriber information like text messages, location data and calling records.

Judge John M. Rogers wrote for the majority:

"If a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal. The law cannot be that a criminal is entitled to rely on the expected untrackability of his tools. Otherwise, dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent. A getaway car could not be identified and followed based on the license plate number if the driver reasonably thought he had gotten away unseen. The recent nature of cell phone location technology does not change this. If it did, then technology would help criminals but not the police."

The appeals court distinguished this case from a GPS case decided by the Supreme Court. The high court ruled that the physical act of installing a GPS device on a target’s vehicle amounted to a search, which usually necessitates a probable cause warrant under the Fourth Amendment.

“Here, the monitoring of the location of the contraband-carrying vehicle as it crossed the country is no more of a comprehensively invasive search than if instead the car was identified in Arizona and then tracked visually and the search handed off from one local authority to another as the vehicles progressed. That the officers were able to use less expensive and more efficient means to track the vehicles is only to their credit,” Rogers wrote.

Another appeals court, the 5th U.S. Circuit Court of Appeals, is also mulling a similar issue, one involving historical cell-site data. And the 3rd U.S. Circuit Court of Appeals ruled in 2010 that warrants were required to get cell-site location data. Split rulings generally leads the Supreme Court to step in and clear the conflicts.

In all of the cases, including the 5th Circuit case, the Obama administration maintains that Americans have no expectation of privacy in cell-site records because they are “in the possession of a third party” — the mobile phone companies. What’s more, the authorities maintain that the cell site data is not as precise as GPS tracking and “there is no trespass or physical intrusion on a customer’s cellphone when the government obtains historical cell-site records from a provider.”
http://www.wired.com/threatlevel/2012/08/warrantless-gps-phone-tracking/

To make sure criminals get no location privacy, the 6th Circuit kills it for everyone else too.

A day after we filed an amicus brief arguing law enforcement needs a search warrant in order to obtain cell phone tracking data from wireless carriers, the Sixth Circuit Court of Appeals reached the opposite conclusion yesterday (PDF), killing privacy protections for a large swath of the country.

As part of an ongoing investigation into a drug trafficking organization, DEA agents obtained approval from a federal magistrate judge to access the "subscriber information, cell site information, GPS real-time location, and 'ping' data" from a pre-paid wireless phone through the use of an admininstrative order (PDF) issued under the Stored Communications Act, which does not require "probable cause" like a search warrant. On appeal the defendant Melvin Skinner, argued that the three day warrantless cell phone tracking violated the Fourth Amendment, but the Sixth Circuit disagreed.

In what can only be described as a results-oriented opinion, the court found Skinner had no reasonable expectation of privacy in the cell phone location data because "if a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal." Otherwise, "technology would help criminals but not the police." In other words, because cell phones can be used to commit crimes, there can't be any Fourth Amendment privacy rights in them. If this sounds like an over-simplistic description of the legal reasoning in an opinion we disagree with, the sad reality is that the court's conclusion really did boil down to this shallow understanding of the law.

Completely missing in the court's analysis was any attempt to analyze whether a "search" occurred when the government accessed this data. Traditionally, this has meant that a court must undertake a two step inquiry: first determine whether a person has manifested a subjective expectation of privacy; and second, decide whether society would find that expectation of privacy reasonable. These questions are tricky, and courts that have considered the issue have reached differing results, including an opinion in the Third Circuit finding a search warrant may be necessary for cell tracking.

But the fact remains that previous courts ruling on the constitutionality of warrantless cell tracking have at least engaged the privacy questions, looking at not only the technology at issue and how precise cell site tracking has become over the years. The opinions have also explored the government's alleged statutory authority to apply for such orders, whether users truly are "voluntarily" turning over their location when they simply turn their cell phone on, and whether privacy rights are extinguished merely by virtue of this information being turned over to the cell phone providers. Its not just courts that are grappling with these issues. Legislation on both the state and federal level have attempted to balance privacy rights with law enforcement needs in order to ensure that cell phone tracking is available to the police without completely eroding privacy.

But rather than engage in any of this analysis, or even acknowledge the prior, conflicting decisions on the issue, the Sixth Circuit took the lazy way out, noting that Skinner was only moving in public streets, and therefore the cell phone tracking was "no more of a comprehensively invasive search" than if the car was "tracked visually and the search handed off from one local authority to another as the vehicles progressed." Of course, earlier this year in her concurring opinion in United States v. Jones, a case deciding the constitutionality of long term GPS surveillance, Justice Sotomayor noted that she did "not regard as dispositive the fact that the Government might obtain the fruits of GPS monitoring through lawful conventional surveillance techniques." And in Kyllo v. United States, Justice Scalia's majority opinion made clear "the fact that equivalent information could sometimes be obtained by other means does not make lawful the use of means that violate the Fourth Amendment.

The court's failure to even distinguish between "subscriber information," "cell site information", "GPS real-time location" and "ping data" only underscores the Court's lack of analysis. This data is not all the same, and it would be foolish for a court to extend the rationale behind allowing police access to "subscriber information"—things like the name on file for a particular account, as well as billing information and method of payment—to allow the police to obtain real time tracking location of a person's movements over a course of three days. After all, a "search" is determined by looking at how intrusive the government's actions are, and little is more intrusive than the government's ability to trace a person's every movement for an extended period of time.

The court's focus on Skinner's involvement in a drug trafficking operation and its emphasis on "burner" phones as being more difficult to trace highlights not only the Court's apparent understanding of The Wire, but what we think is the court's true concern: making sure a criminal charged with serious crimes remains locked up. Even Judge Donaldson, who concurred with the result but not the rationale of the majority, noted he did not agree with his colleagues' characterization of the issue as "whether society is prepared to recognize a legitimate expectation of privacy in the GPS data emitted from a cell phone used to effectuate drug trafficking." He laments that the majority opinion not only "focuses on the criminal conduct in which Skinner was engaged," but implies that possession of a prepaid phone "is somehow illicit or suspicious in itself."

Somehow, the Sixth Circuit lost sight of the fact that its attempt to ensure criminals cannot "use modern technological devices to carry out criminal acts" means that innocent people will have to lose their privacy rights. Judge Berzon of the Ninth Circuit (PDF) recently noted a fear that "understandable abhorrence" of child pornography crimes "can infect judicial judgment" and lead to incorrect legal results that erode constitutional protections against intrusive computer searches for everyone. This fear is even greater when the issue before a court is the scope of privacy protections for a cell phone, a device carried by far more innocent people than criminals. Judge Berzon wrote judges must "remember that the protections of the Fourth Amendment do not depend on the nature of the suspected criminal activity, any more than they do on the race or gender of the suspect."

With the the battle over warrantless cell tracking coming soon to the Fifth Circuit Court of Appeals, who will hear oral argument during the week of October 1 in a case in which we filed an amicus brief, we hope the judges of that court will look beyond the fact that criminals use cell phones, and remember that innocent people use them too.
https://www.eff.org/deeplinks/2012/08/to-make-sure-criminals-get-no-location-privacy-6th-cir-kills-it-everyone-else-too