Justice Dept. wants phone locales without warrant

Feb 12, 2010 By MARYCLAIRE DALE , Associated Press Writer

(AP) -- Should the government be allowed to track a person's movements based on cell phone records, without evidence of criminal wrongdoing?

A showdown on the issue unfolded Friday in a federal appeals court in Philadelphia, as the Justice Department battled electronic-privacy groups.

The privacy groups say the information could reveal when someone goes to a religious service, medical clinic or political rally, or is having an extramarital affair. Third U.S. Circuit Judge Dolores Sloviter seemed to share that concern.

"You know there are governments in the world that would like to know where some of their people are or have been," Sloviter challenged Justice Department lawyer Mark Eckenwiler, an associate director of criminal enforcement operations.

"Can the government assure us that it will never try to find out these things?" she asked. "Don't we have to be concerned about this? Not this government right now, but a government?"

Law enforcement agencies hope to obtain cell phone location data from cellular providers without first showing probable cause of a crime - and without the customer's knowledge. The data comes from cell phone towers, and in densely populated cities can pinpoint a person's location to within a few hundred yards.

The issue is not whether the government can obtain the information, but whether a probable-cause warrant should be required first.

"An individual has no Fourth Amendment-protected privacy interest in business records, such as cell-site usage information, that are kept, maintained and used by a cell phone company," Eckenwiler wrote in his brief.

Sloviter countered by asking Eckenwiler why there was a need to skip a probable-cause showing, saying that she knew no magistrates reluctant to grant search warrant applications.

He replied that the relevant law does not require them. Eckenwiler said probable-cause warrants are only needed to obtain the contents of electronic communications, such as a text or e-mail, or to wiretap a phone. He believes the 1986 Electronics Communications Privacy Act allows police to obtain "non-content" data without a warrant.

After Friday's hearing, Senate Judiciary Chairman Patrick Leahy, D-Vt., chief author of the 1986 law, said his committee would revisit the legislation this year.

"The question of how best to protect these digital communications, while providing law enforcement with the tools that it needs to keep us safe, has no simple answer. But, what is clear is that our federal electronic privacy laws are woefully outdated," Leahy said in a statement.

The appeal heard Friday stems from a Pittsburgh drug-trafficking case, in which the Bureau of Alcohol, Tobacco, Firearms and Explosives sought the data as an investigative tool because the suspects frequently changed vehicles and residences.

Magistrate Lisa Pupo Lenihan denied the 2008 request, calling the information "extraordinarily personal and potentially sensitive."

The Electronic Frontier Foundation and the American Civil Liberties Union asked that Lenihan's ruling stand.

Eckenwiler challenged the notion that government access to location data would turn a person's phone into a "tracking device." He said the ATF was only seeking past cell phone use in the drug case.

However, a professor of cyberspace law called the distinction negligible. Police could ask a cell phone provider for historical data and then ask again a month later - thereby achieving the same end, argued Susan Freiwald, a University of San Francisco law professor.

"Most cell phone users would be unpleasantly surprised, if not outraged, to learn that a law enforcement agent could gain access to their location information without first obtaining a warrant based on a showing of probable cause," she wrote in a "friend of the court" brief.

Sloviter is joined on the three-judge panel by Judge R. Jane Roth, who was absent from the bench Friday, and visiting 9th Circuit Judge A. Wallace Tashima. The judges suspended the usual 30-minute time limit for oral arguments, extending the session to 80 minutes.

Tashima questioned Freiwald's contention that the phone-location data lets police invade the privacy of the home. Freiwald believes the information can suggest when people are home, when they are awake and who might be with them.

"We should be able to use our cell phones without them creating a virtual map of our movements and associations," Freiwald argued.

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CarolinaScotsman
3.7 / 5 (3) Feb 12, 2010
"Appellate Judge Dolores Sloviter wondered aloud what a rogue government might do with such information."

A rogue government wouldn't bother to ask.

Quantum_Conundrum
1.1 / 5 (16) Feb 12, 2010
Personally, I am for the abolition of the 4th ammendment and the implementation of a totally electronic and/or RFID chipped tracking system for currency and all transactions of every type, including internet and cell phones.

Why? Because I am absolutely sicka nd tired of organized crime, drugs, theft, murder and rapists, especially kidnappers and child traffickers having as much success as they have had even in this so-called modern age.

I want the bastards found, prosecuted, and punished YESTERDAY, and I'm willing to give up some of my "rights" to see it done, pronto...

Coins and currency should be replaced with coded RFID and GPS tracking devices which have both an encrypted firmware code as well as an external serial number, making counterfieting impossible. Paper bills and metal coins, could be replaced with plastic chips and cards like credit cards, with an RFID chip and GPS locator on board, such that the location and nature of every transaction is known immediately.
Quantum_Conundrum
1 / 5 (9) Feb 12, 2010
The above implementation would make organized crime and tax evasion virtually impossible.

Criminals may come up with some sort of barter-based system, but it would be exponentially harder to exchange currency for contraband, or to steal currency...
bob_barker
5 / 5 (9) Feb 12, 2010
Sacrificing rights and freedoms isn't the answer to addressing crime. Britain has outlawed guns and built entire networks of CCTV cameras. Both measures have done nothing to curb crime or violence. The government has used its CCTV networks as a means of profiting from its own people. A non-violent person who is caught on camera tossing a cigarette butt on the sidewalk is fined $70 while murderers and rapists run free.

If this were implemented, it would only mean the government would sell the information to private corporations and hackers would break into the database and be able to acquire information on anyone, anytime. The real victims would be those the government mistakenly claims this will protect.
tkjtkj
4.5 / 5 (4) Feb 12, 2010
CarolinaScotsman "Appellate Judge Dolores Sloviter wondered aloud what a rogue government might do with such information."

CarolinaScotsman:
A rogue government wouldn't bother to ask.


Did she say that such a gov would 'ask'? No. She's implying that a rogue gov would harm our society with the arrogance that only such a gov would demonstrate. You seem to be trying to counter her point: when its your own, point, too, really.
Bobr
5 / 5 (10) Feb 12, 2010

I want the bastards found, prosecuted, and punished YESTERDAY, and I'm willing to give up some of my "rights" to see it done, pronto...

They that can give up essential liberty
To obtain a little temporary safety
Deserve neither liberty nor safety

B. Franklin 1759
Caliban
4.4 / 5 (7) Feb 12, 2010
Absolutely right on, Bobr-
This is exactly the kind of threat to our Civil Liberties that would inevitably lead to the Big Brother/=/Big Government state of affairs that people(rightly, too!) fear so much.
In this context, all the crime and evil in the world is the "lesser of two evils". Far better to have to deal with the evil of people and its consequences than give up our freedom. Crime and evil arise out of the individual- and no amount of law making, policy making, civil rights removal, or government intrusion into the private life of people is going to change that.
antialias_physorg
4.7 / 5 (6) Feb 12, 2010
I am for the abolition of the 4th ammendment and the implementation of a totally electronic and/or RFID chipped tracking system for currency and all transactions of every type, including internet and cell phones.

Why? Because I am absolutely sicka nd tired of organized crime, drugs, theft, murder and rapists, especially kidnappers and child traffickers having as much success as they have had even in this so-called modern age.


And you think these people wouldn't switch to another, secure form of communication as soon as they knew this was the case? So you'd have give up all your rights for nothing.
Quantum_Conundrum
1.3 / 5 (7) Feb 12, 2010

And you think these people wouldn't switch to another, secure form of communication as soon as they knew this was the case? So you'd have give up all your rights for nothing.


Their communications are irrelevant when they can't transfer funds in any way without being tracked...
antialias_physorg
5 / 5 (4) Feb 12, 2010
Given a 1GB USB stick sent by secure courier I can guarantee you undecypherable text communication which will probably be enough for ten years worth of near constant chatting between two parties.

All the government would know that the two people are talking - but no way of knowing what about.
Quantum_Conundrum
1 / 5 (4) Feb 12, 2010
Given a 1GB USB stick sent by secure courier I can guarantee you undecypherable text communication which will probably be enough for ten years worth of near constant chatting between two parties.

All the government would know that the two people are talking - but no way of knowing what about.


I know that, but they couldn't transfer usable funds in such a manner, so drug trafficking and human trafficking would be much more difficult for anyone to make a profit in...

P.S.

I can guarantee undecypherable text from a hand written message...let alone 2GB worth of concealment and coding...
antialias_physorg
5 / 5 (4) Feb 12, 2010
I know that, but they couldn't transfer usable funds in such a manner,

Why not? Just have one of the partners be the banker.
Quantum_Conundrum
1.3 / 5 (4) Feb 12, 2010
I know that, but they couldn't transfer usable funds in such a manner,

Why not? Just have one of the partners be the banker.


If everything is chipped, the government would realize that shipment definitely isn't innocent cargo...

five million dollars for a crate of bananas would be a bit obvious...
GrayMouser
3.3 / 5 (3) Feb 12, 2010
I know that, but they couldn't transfer usable funds in such a manner,

Why not? Just have one of the partners be the banker.


If everything is chipped, the government would realize that shipment definitely isn't innocent cargo...

five million dollars for a crate of bananas would be a bit obvious...

How do they chip diamonds? Or gold? Or drugs? All of these have monetary value.
Quantum_Conundrum
1.7 / 5 (3) Feb 12, 2010

How do they chip diamonds? Or gold? Or drugs? All of these have monetary value.


Here is why the illegal transaction would be nearly impossible:

The rich guy wants money to buy primarily legal, "normal" goods: a yacht, a mansion, 1000 acres of some tropical island with a golf course, etc. He cannot do this without currency. If all legal currency is electronic and/or traceable RFID and GPS chipped, then it is not possible for a dealer to make transactions of illegal goods and services without being detected. Again, if he wants money, he's got to sell his product in some way, and the purchaser has to transfer funds which are electronically traceable at all times. If the government sees 5 million worth of currency going down the street in an unmarked car, they have a suspect. If they see someone buy a 5 million dollar crate of bananas, for example, they know illegal activity has occured, because a crate of bananas is only worth a tiny fraction of that...
Quantum_Conundrum
1.7 / 5 (3) Feb 12, 2010
Since all legitimate cargo would be marked with RFID, it would be easy enough to discover where the crate came from, and whether it was really bananas, or whether it was contraband.
PinkElephant
5 / 5 (3) Feb 12, 2010
1) Illegitimate cargo would NOT be marked with RFID, so you wouldn't know anything's being shipped in the first place.

2) Most large-scale transactions aren't done with actual money; they are done with electronic transfers and intermediated via contracts. Anyone can write up a contract on a regular piece of paper, without any built-in RFID or GPS.

3) Money laundering will ensure that organized crime organizations look like legitimate corporations deriving income from business activities. Once laundered, you can take that money out of any ATM without any fear of discovery.
PinkElephant
5 / 5 (4) Feb 12, 2010
But the GREATEST issue with your Orwellian vision, should you find work-arounds for all the problems I mentioned and ensure it is water-tight, Quantum_Conundrum, is that should the government ever really go BAD -- as in Stalinist sort of bad -- the people would stand no chance at mounting any sort of organized resistance amid such a pervasive police state.

THAT is the key consideration behind the 4th amendment (as well as the 2nd amendment.)

Go ask any former inhabitant of East Germany, how wonderful it was to live under constant Stazi surveillance, and in a state of perpetual paranoia...

Then (re)read 1984.
dan42day
3.8 / 5 (4) Feb 13, 2010
Quantum_Conundrum

I'm sure that someplace like North Korea would be happy to accommodate your wishes for total surveillance. The United States was founded on the opposite idea. Perhaps you should consider relocating. I'm sure we would ALL feel a little more secure!
SteveBush
3 / 5 (2) Feb 13, 2010
I prefer evil people to evil government any day. At best you are a "useful idiot", quantum.
Quantum_Conundrum
3 / 5 (2) Feb 13, 2010
I prefer evil people to evil government any day. At best you are a "useful idiot", quantum.


I prefer neither evil people nor evil government.
JerryPark
4 / 5 (3) Feb 13, 2010
I seem to recall that our current president promised to "fix" the privacy violations of the previous administration -- yet here we are trying to extend the government's ability to pry into our affairs without control or probable cause.

The government wants control, pure and simple, because control is power.
Quantum_Conundrum
2 / 5 (3) Feb 13, 2010
I prefer evil people to evil government any day. At best you are a "useful idiot", quantum.


See, you are arguing from the point of a "false dilema" fallacy, whereby you assume the worst from government and conclude that you would rather have a common murderer, rapists, or thief than a NAZI or Stalin.

So your fallacy is that you believe we can only have one or the other: evil people, or evil government, or perhaps evil people and evil government.
Quantum_Conundrum
1 / 5 (7) Feb 13, 2010
Also, americans are just as evil as NAZIs anyway, especially liberals.

What? You forgot to count all those aborted babies as "Murder"? I didn't forget, and God hasn't either.

The "Inconvenient Truth" is that Americans have "conveniently" murdered their "inconvenient" chidren for decades, and with the blatant approval and even direct support of our allegedly "good" democracy.

Wholesale human sacrifice is performed every day right here in America by our "good" democracy, in the name of "women's rights".

Hitler would be proud, and certainly hard pressed to propose a more efficient means of exterminating human beings.
maxcypher
5 / 5 (3) Feb 13, 2010
QC's last comment about evil liberals and God's Judgement characterizes this person's brand of thinking better than anything I could say.

But back to the rational discussion about the relation between privacy and security... Imagine that you're one of the top 1% of the wealthy. If you can hire all the muscle/tech you need to feel secure, then I suppose you might be able to retain some semblance of a private life, but if that muscle/tech is in the hands of anyone else -- whether a dictator, a 'democratic' gov't, or a multinational corp. -- then human nature will prevail and someone will find a way to profit from using your personal info against your wishes.
Quantum_Conundrum
1 / 5 (7) Feb 13, 2010
maxcypher:

about 50 million died in WW2 on both sides combined...

Americans have murdered something like 60 million of their own babies in the time since then, it averages out to about a million to two million per year...This is only counting "abortion", and does not count "Normal" domestic murder, which in and of itself annually exceeds all U.S. casualties in all wars since vietnam combined...

The point is, American democracy isn't so "good" after all...the whole country is infected with murderers.
GDM
5 / 5 (1) Feb 13, 2010
...to add to someone elses paranoia, just what do you think those new counterfeit-proof metal strips are in our new currency? BUWAHAHAHA
..come on QC, get a real life. It somehow figures that right-wing religious people would be the first to have ALL of us give up our hard-won freedoms. Sorry, not today, not ever, and not in my country.
Quantum_Conundrum
1 / 5 (5) Feb 13, 2010
...to add to someone elses paranoia, just what do you think those new counterfeit-proof metal strips are in our new currency? BUWAHAHAHA
..come on QC, get a real life. It somehow figures that right-wing religious people would be the first to have ALL of us give up our hard-won freedoms. Sorry, not today, not ever, and not in my country.


What makes you think I'm "right wing"?

I can't stand either the democrats or the republicans corruption.

I am a Christian with socialist, perhaps even communist tendencies.

I cannot stand what modern capitalism has become, and I certainly cannot stand what modern "democracy" has become, because it has lead the American people on a course where they honestly seem to believe that something is "good" just because a majority of people say it is good, which is ridiculous. If prisons were democracies, murder and rape would be legal, but does that make it "good"? Hell no.

I will be glad when Jesus returns and sets up "Godocracy".
PinkElephant
5 / 5 (3) Feb 13, 2010
What? You forgot to count all those aborted babies as "Murder"? I didn't forget, and God hasn't either.

And what does this have to do with the price of tea in China? Stay on topic. But since I'm replying to that tangent anyway, I'll just mention a couple of things: fetuses aren't people, abortion isn't murder, and natural abortions (a.k.a. miscarriages and/or failure of blastocyst to implant) outnumber man-made abortions by a couple orders of magnitude. Considering the latter, and given your definition of "babies", you could say your god is the #1 abortionist on this planet, and always has been.
jonnyboy
5 / 5 (4) Feb 13, 2010
Is there any way to block comments from a user so that you never even knows he exists? Yes, this means you QC, I have yet to ever see you post a worthwhile comment to any conversation that you choose to "contribute" to.
Quantum_Conundrum
1 / 5 (4) Feb 13, 2010
PinkElephant:
God is not responsible for the deaths of those babies, Adam, Eve and the devil are, as are in many cases mothers and fathers who do drugs and don't eat right and such things.

But the point is, "death entered because of sin".

That isn't God's fault at all. It's our fault.

Jonnyboy:

You certainly haven't looked hard enough then.

My posts are often "contraversial" on this site, since most everyone here is a pro-baby killing God hater, but I have certainly made many posts here which I am sure "someone" found constructive.

Anyway, people with nothing to hide have nothing to fear.

Don't fool yourselves sinners, God sees everything anyway
GDM
3 / 5 (2) Feb 13, 2010
Interesting. You are in perfect agreement with Islam. Although I'm sorry that since you are also an "unbeliever", you are also comdemned to hell. My god is much more forgiving...well, actually, s/he/it couldn't care a whit, since it is omnipresent (i.e., quantum physics) and is a part of me, you, everything.
maxcypher
5 / 5 (1) Feb 13, 2010
I'd sure like it if everyone would just ignore QC's religion-soaked tirades and get back to the interesting question of privacy/personal freedoms vs. the need to feel secure. Especially in the post 9/11 era, this issue is one of the more crucial threads that make up our cultural fabric. Is there anyway to nudge folk into a more peaceful coexistence without sacrificing our personl liberties (also without invoking some Transhuman Power that will bludgeon us into submission)? I'd be particulary interested in PinkElephant's take on this.
Quantum_Conundrum
1 / 5 (3) Feb 13, 2010
Maxcypher:

Once again, people with nothing to hide have nothing to fear.

John 3:16For God so loved the world, that he gave his only begotten Son, that whosoever believeth in him should not perish, but have everlasting life.

17For God sent not his Son into the world to condemn the world; but that the world through him might be saved.

18He that believeth on him is not condemned: but he that believeth not is condemned already, because he hath not believed in the name of the only begotten Son of God.

19And this is the condemnation, that light is come into the world, and men loved darkness rather than light, because their deeds were evil.

20For every one that doeth evil hateth the light, neither cometh to the light, lest his deeds should be reproved.

21But he that doeth truth cometh to the light, that his deeds may be made manifest, that they are wrought in God.

GDM
5 / 5 (2) Feb 13, 2010
OK, I agree.
The 4th amendment states "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The Justice department believes that the cell phone information kept in cell towers is not covered, because it is not "content", yet it seems to me location of a specific cell phone and the number and destination of the calls made is certainly "effects" as mentioned in the amendment. I believe it to be absolutely required that the justice dept first obtain a warrant, and in doing so, must show probable cause to the magistrate. Without doing so, how can there be any guarantee they are not violating the rights of innocent citizens? Finding a sympathetic magistrate is no problem, so just do it.
PinkElephant
4 / 5 (1) Feb 14, 2010
@maxcypher,
Is there anyway to nudge folk into a more peaceful coexistence without sacrificing our personl liberties (also without invoking some Transhuman Power that will bludgeon us into submission)? I'd be particulary interested in PinkElephant's take on this.

I'm honored that you value my opinion, though I've done little to earn such trust. But it's the million-dollar question you're asking. There are many thoughts I could put down on this matter, but they sort into two broad categories: idealistic, vs. pragmatic. Ultimately, only the latter type are of use, and there I'm quite skeptical and frankly despondent. We are too deeply set in our ways, and too firmly upon our course: as nations, as civilizations, and as individuals on the whole. The key step toward progress, would be for a majority to break out of its tunnel vision and step away from the treadmill, learn history, learn about the world, and reflect upon the state of affairs. But we're not very reflective...
GDM
not rated yet Feb 14, 2010
Cheer up, PinkElephant, idealistic views can still persuade. The majority of people are basically good at heart, but tend to do stupid things when they are told to (by lobbyists, fringe groups, sermons, politcal parties, etc.) Just question everything that you are "encouraged" to do and ask yourself (and others) , "Does this advance the human race to achieve the best in all of us?"
maxcypher
4 / 5 (1) Feb 14, 2010
@PinkElephant,

I suspect that one of the 'ways' that we are stuck in, is the presumption of being somehow separate or above the rest of life on Earth. I also suspect that this attitude arose via Christian indoctrination during the Middle Ages.

Rather than our being some sort of Divine or Alien intervention upon the Earth, I think that science supports the notion that we are an intrinsic part of a natural development as fundamental as entropy -- just the other direction (negentropy?).

Perhaps as more people realize this, the hubris of our species could shrink enough to allow for a little more gentle behavior amongst ourselves.

Then again, perhaps not.
Simonsez
5 / 5 (1) Feb 15, 2010
@Quantum Conundrum
Anyway, people with nothing to hide have nothing to fear.

Don't fool yourselves sinners, God sees everything anyway

One problem with your argument quoted here is that, supposing God does see all, His judgment does not come until after the person dies, which may be months or years after their killing/raping/robbery spree or whatever other crimes you wish to append. The folks willing to commit crimes are already gamblers willingly risking punishment and consequences here in this life - accordingly, they are likely far more willing to risk punishments in an afterlife that may or may not exist.

To add my own opinion, I am against this sort of intrusion into privacy for the reasons presented in just about every "dystopian future" science (currently) fiction novel ever written. As evidenced by others, the CCTV monitoring system in London has done little to curb crime and, much like stoplight cameras in the US, is used instead to generate revenue by fines.
frogz
3.5 / 5 (2) Feb 15, 2010
Why must we continue to fight against those within the government that would give no more than a passing thought before wiping their feet on the constitution and WHAT IT STANDS FOR.

You don't need a rogue government to have a haven for criminals, and this government has a few.
CyberRat
5 / 5 (1) Feb 16, 2010
Quantum_Conundrum, wake up, GOD doesn't exist, stop reading from the fairytale called Bible, stop allowing your life be controlled by stories of over 2000 years ago. Btw, you know most child abusers live and work in churches?
CyberRat
5 / 5 (1) Feb 16, 2010
About privacy, what is next, chip every person, treat us like animals that way. Make the country a prison itself? damn, Hitler and Stalin would be horny if they could have the information they are collecting now already.
magpies
1 / 5 (2) Feb 20, 2010
CyberRat, Wake up, god exists, stop reading from the fairyland science books and start thinking for yourself. Do you really think this world could get the way it is without someone being god?

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