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Fifth Circuit Upholds Warrantless Cellphone Location Tracking

Unknown Lamer posted about 9 months ago | from the cops-concerned-you-never-leave-home dept.

Cellphones 149

First time accepted submitter mendax writes "The New York Times is reporting, 'In a significant victory for law enforcement, a federal appeals court on Tuesday said that government authorities could extract historical location data directly from telecommunications carriers without a search warrant. The closely watched case, in the United States Court of Appeals for the Fifth Circuit, is the first ruling (PDF) that squarely addresses the constitutionality of warrantless searches of historical location data stored by cellphone service providers. Ruling 2 to 1, the court said a warrantless search was 'not per se unconstitutional' because location data was 'clearly a business record' and therefore not protected by the Fourth Amendment.'' The article pointed out that this went squarely against a New Jersey Supreme Court opinion rendered earlier this month but noted that the state court's ruling was based upon the text of the state's constitution, not that of the federal constitution."

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LOL Corporations! (2)

Qzukk (229616) | about 9 months ago | (#44434823)

the court said a warrantless search was 'not per se unconstitutional' because location data was 'clearly a business record'

Not a person when the federal government feels like it.

Re:LOL Corporations! (5, Insightful)

blcamp (211756) | about 9 months ago | (#44434907)

This has nothing to do with the concept of "corporate personhood", whether you agree with it or not.

This is a 4th Amendment issue. Searches and seizures of anything are protected for personal effects and papers. Electronic records are arguably that, but this court did not agree. It needs to be settled by SCOTUS.

Re:LOL Corporations! (2, Insightful)

Anonymous Coward | about 9 months ago | (#44434995)

RIght, but if corporations are people, then their business records are clearly "personal effects and papers," no?

Re:LOL Corporations! (2)

jittles (1613415) | about 9 months ago | (#44435037)

RIght, but if corporations are people, then their business records are clearly "personal effects and papers," no?

IANAL but that's exactly what I was thinking. You can't have your cake and eat it, too. So I guess someone in that jurisdiction needs to start suing their mobile provider to get them to delete all this location data once their bill has been paid. After all, they need the location data for billing purposes. Once the bill has been settled, they no longer need those records, only the settled invoice itself. And since I prepay, have unlimited everything, and have no roaming capabilities, there is no need to keep any location data whatsoever. Hmm...

Re:LOL Corporations! (4, Interesting)

pixelpusher220 (529617) | about 9 months ago | (#44435213)

While the ruling is troubling on a number of levels the concept itself is fine.

A 'business record' whether held by an individual or a corporation (person or otherwise) is a '3rd party' record and as such isn't protected by YOUR 4th Amendment rights. It would be no different if you paid your neighbor to record your movements and they asked them for your data.

That said, the troubling aspects are we've made the jump from business records (how the business runs its operations) to user generated records housed and recorded by the business. The law makes no distinction, but the latter has massive privacy implications.

I suppose if there were truly a free market (I hate that word btw) we'd have entries into the mobile wireless business doing what VPNs have for a while. I.e. no logging 'at all'.

If the gov't in any way compels a business to keep records (and there lots of valid reasons for this) then those records are not considered 'business records' and need applicable warrants, etc.

Re:LOL Corporations! (0)

Anonymous Coward | about 9 months ago | (#44435921)

Yeah but unless I am a business, I am not generating business records. So what the does the fact that they are business records have to do with MY records? Unless the government counts me as a business for some reason. I think that's the point.

Re:LOL Corporations! (1)

pixelpusher220 (529617) | about 9 months ago | (#44436299)

The point is the type of 'records' doesn't matter except in very very specific cases. If it's held by a 3rd party, you don't have grounds to invoke the 4th Amendment.

Re:LOL Corporations! (2)

10101001 10101001 (732688) | about 9 months ago | (#44437141)

A 'business record' whether held by an individual or a corporation (person or otherwise) is a '3rd party' record and as such isn't protected by YOUR 4th Amendment rights. It would be no different if you paid your neighbor to record your movements and they asked them for your data.

Except that makes no sense (not surprisingly). Again, the text of the 4th Amendment: "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." Notice how the wording consistently uses plurals or groups? The idea that by dividing the people effected you can get around the 4th Amendment is about as preposterous as stating that because the 4th Amendment constantly uses plurality that no individual is protected from unreasonable searches and seizures. Clearly that's not how the wording is being used.

Another big canary that's often missed is no part of the 4th Amendment gives exception just because the government otherwise demanded, required, or paid that information be turned over. Ie, the wording of the 4th Amendment seems pretty clear that even *if* by some twisted logic they compelled or bribed your neighbor to hand over your data, they'd *still* need a warrant to search it. The government, after all, is not a person and all those inherent truths--like what you legally possess you can legally search--don't inherently hold true. And the 4th Amendment clearly spells out that if there's a valid reason to do a search, the government can clearly get a warrant to do a search and follow that path. The whole idea that by compelling or paying people/businesses to get around that exception is absurd on the face of it, as clearly the intent of the 4th Amendment was precisely that ordinary, average people should be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures". But, then, courts just love illogical loopholes.

Re:LOL Corporations! (0)

Anonymous Coward | about 9 months ago | (#44435913)

After all, they need the location data for billing purposes.

No, they don't.

Unless they intend to bill you differently depending on what state you were in but then the location data doesn't need to be more detailed than that.
The are storing more data about you than they need to.

Re:LOL Corporations! (1)

camperdave (969942) | about 9 months ago | (#44435625)

RIght, but if corporations are people, then their business records are clearly "personal effects and papers," no?

The amendment doesn't work if the "person" willingly hands their data over.

Re:LOL Corporations! (0)

Anonymous Coward | about 9 months ago | (#44436305)

RIght, but if corporations are people, then their business records are clearly "personal effects and papers," no?

Corporations are not people, and the courts have never ruled that they are. That's a pile of misinformation spread by people who have a limited understanding and reactionary "news" services looking for a sensational story.
The court ruling that spawned this particular pile of tripe actually ruled that it's the speech which is protected, regardless of whether it's coming from a person or a corporation.

As for this particular discussion, there are two issues. First is whether or not it's constitutional for the government to scoop up large amounts of data... this ruling only regards a State-level constitution so it doesn't really mean much right now. The second issue, which has been completely ignored so far, is that phone companies who are giving up this information without being presented with a warrant or court order are in direct violation of CPNI regulations. (search the FCC's government site for details).

Re:LOL Corporations! (3, Insightful)

Greyfox (87712) | about 9 months ago | (#44435279)

It NEEDS to be EXPLICITLY settled by Congress. With clear language the courts can't ignore. Congress as a whole only understands one thing and that's the risk to their jobs.So until they start losing them over stuff like this, nothing much will get done. Until then if you don't like being tracked every waking moment, you'll have to not carry a cellphone or leave the battery out of it unless you need to make a call.

Re:LOL Corporations! (1)

GodfatherofSoul (174979) | about 9 months ago | (#44435791)

That will NEVER happen any time soon since as soon as the next terrorism incident happens, anyone who any way voted against any surveillance program will be hoisted up on a pike in the next election.

Re:LOL Corporations! (1)

Nerdfest (867930) | about 9 months ago | (#44436041)

The surveillance is one thing, doing without any oversight is another. It needs to done with a warrant.

Re:LOL Corporations! (0)

Anonymous Coward | about 9 months ago | (#44434993)

Proof that the government only sees corporations as citizens.
The US is run like an Ancient Greek Polis where only citizens have a higher status than non-citizens, such as women, slaves or barbarians.
Just substitute women, slaves and barbarians with "We the people".

!='clearly a business record' (0)

Anonymous Coward | about 9 months ago | (#44435341)

the tower(s) used to facilitate a given call are potentially relevant to billing (roaming, reselling, etc) but how is continuous location data when I'm not driving revenue and/or cost to the carrier (i.e. 99.99% of the time) a "business record" to the carrier? and that's just talking at the TOWER precision (hell, I'll be generous & say sector precision) - can someone explain to me how continuous high-precision location data not associated with (a) billable event(s) is "business records"?

what business legitimate (i.e. non-NSA) purpose does this data have?

Re:LOL Corporations! (1, Interesting)

camperdave (969942) | about 9 months ago | (#44435609)

By extension, the records of a Private Investigator following someone are clearly a business record as well. So the cops can just hire PIs to follow suspects around, record their conversations, etc. without search warrants. Sigh! Why bother with a constitution at all?

Fourth Amendment (4, Insightful)

blcamp (211756) | about 9 months ago | (#44434875)

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.

- Fourth Amendment to the US Constitution

What? Emails, text messages and other electronic communications are not "papers", you say? Well, "electronic signatures" are taken as just as legal and binding as if it were an actual signature in ink on a piece of paper.

This needs to be taken to SCOTUS, extra pronto.

Re:Fourth Amendment (4, Informative)

EmagGeek (574360) | about 9 months ago | (#44434919)

You need to read the Commerce Clause and supporting case law, which says that anything having an effect on Interstate Commerce is a business record and not a "Paper" or personal effect.

Bank Statements, emails, and so on, are all fair game.

Re:Fourth Amendment (1)

stewsters (1406737) | about 9 months ago | (#44435001)

So is anything that has crossed state lines. Don't live in a state with paper production? Well, there goes the rest of your papers too.

Re:Fourth Amendment (0)

Anonymous Coward | about 9 months ago | (#44435229)

You don't have to cross state lines to be considered interstate commerce.

https://en.wikipedia.org/wiki/Wickard_v._Filburn

Re:Fourth Amendment (1, Insightful)

spire3661 (1038968) | about 9 months ago | (#44435033)

Yes, but the commerce clause is utter bullshit as interpreted. WHile your argument may be legal, its still wrong and needs to be changed.

Re:Fourth Amendment (1)

intermodal (534361) | about 9 months ago | (#44435145)

I agree that it is utter bullshit as interpreted, but the question is not whether it needs to be changed but how we make that change become reality. We can argue shoulds and musts all day long, but until it comes to pass, it is but words.

Re:Fourth Amendment (1)

spire3661 (1038968) | about 9 months ago | (#44435293)

It starts with people recognizing and discussing how wrong it is. It has taken me years to feel confident enough to say the commerce clause is bullshit.

Re:Fourth Amendment (1)

intermodal (534361) | about 9 months ago | (#44435415)

A very fair point. I've been saying the same for quite a while. However, it is unfortunate to note that nothing has changed on this front even with an increasing number of people recognizing it over time. On the positive side, I've met plenty of people who have come to agree the commerce clause's present interpretation is bullshit, but none at all who thought our way and changed their mind to agree with its interpretation at present.

Re:Fourth Amendment (0)

Anonymous Coward | about 9 months ago | (#44436325)

Simplest Solution to Affect the Necessary Change: A bullet in the head of every politician in either the House of Representatives or the Senate. As for the House of Representatives it is clear the Government is not representing the People. Revolution is the only recourse. The Terrorists won a greater victory over "The Land of the Brave and the Home of the Free" than even their wildest 88 virgin fantasy could have possibly promised. Osama bin Laden is likely a dinner guest with Barack Hussein Obama at the White House on a regular basis.

Re:Fourth Amendment (1)

intermodal (534361) | about 9 months ago | (#44436423)

The terrorists didn't win this. We screwed ourselves over decades ago. It was pretty much all over with the New Deal, followed by the agencies created during World War II and kept in operation under the auspices of the Cold War.

Re:Fourth Amendment (0)

Anonymous Coward | about 9 months ago | (#44435347)

My medical records are my 'personal papers' but are a business record to my physician, his billing service, the insurance company, etc.

Re:Fourth Amendment (1)

CrimsonAvenger (580665) | about 9 months ago | (#44435903)

You need to read the Commerce Clause and supporting case law,

Just remember, abuse of the Commerce Clause really got going when FDR found that his New Deal was mostly unconstitutional, and he had to find some new way to justify it.

Which "new way" involved threatening to pack the Supreme Court till they gave in and let him do what he wanted, then using the Commerce Clause to justify...anything.

Re:Fourth Amendment (1)

Talderas (1212466) | about 9 months ago | (#44436103)

Wickard vs Filburn is the case which basically started the bullshit interpretation of the Commerce Clause.

Re:Fourth Amendment (2)

operagost (62405) | about 9 months ago | (#44434961)

And the fact that the decision was based on NJ law, not the US Constitution, still doesn't fly because the supremacy clause clearly holds, looking at both the 14th and 4th amendments. Claiming they're "business records" is stupid. Yes, they're business records. This just means that the business doesn't get to claim privacy rights to them. However, it's my information, so I do!

Re:Fourth Amendment (1)

bill_mcgonigle (4333) | about 9 months ago | (#44435087)

And the fact that the decision was based on NJ law, not the US Constitution, still doesn't fly because the supremacy clause clearly holds

NJ is free to offer its citizens more protection than the General Government does - that doesn't constitute a conflict under the Supremacy Clause. Properly viewed, the Supremacy Clause only applies to the enumerated powers of the Constitution anyway - it should not even apply in cases where States' powers are being infringed, unless one of the Bill of Rights protections are being violated (we'll pretend the 9th and 10th Amendments do not exist, just like DC, for the sake of argument).

Re:Fourth Amendment (1)

spacepimp (664856) | about 9 months ago | (#44435155)

I agree with you on this. That the nature of it being digital does not imply that there are no expectations of privacy. The logic i have heard is that you need to have a third party involved. Since that third party has knowledge the idea of privacy is non existent. therefore they can get their grubby hands on it. However,. If I send a package/letter it involves a third party. Why is that different?

Re: Fourth Amendment (1)

AvitarX (172628) | about 9 months ago | (#44435457)

Do you have access to your location data?

I assume that's the difference I assume, these are records the cell company kept for their own use and can give away as they see fit (and unfortunately have to even with no subpoena).

Your texts, email etc SHOULD be treated as yours, under the theory that you are renting the space they are stored, but it is your private info. I dont think the courts are consistent even there though.

I see this as a case where private companies keep too much data that they gleefully hand over, but even if they wanted to fought it, there is nothing but a secret court to fight much of it in. Considering the tracking info will clearly cover times when there was an expectation of privacy, it wouldn't shock me to see it overturned.

Re:Fourth Amendment (1)

vikingpower (768921) | about 9 months ago | (#44435157)

This needs to be taken to SCOTUS, extra pronto.

Yes, and.... if the SCOTUS ruling concurs with this one, what are you, poor devils of American citizens that you are, going to do then ??

Re:Fourth Amendment (1)

fnj (64210) | about 9 months ago | (#44435501)

if the SCOTUS ruling concurs with this one, what are you, poor devils of American citizens that you are, going to do then

Well, you are presuming future events which haven't occurred yet, but to answer your question, corrupt dickheads in the supreme court can be impeached by the house and tried by the senate, with immediate removal from office without appeal the penalty following conviction. Look, I know I'm running the risk of being laughed out of the room for even suggesting this, but after all, it is the next step.

There is also further amendment of the constitution possible. If the justices are too stupid to read and comprehend english, or tyrannical enough to make up things that are not in the constitution, we can try making the point even more explicit.

If all that fails, and the offense outrageous enough, there is the usual remedy to tyranny. The one this country was born with.

Re:Fourth Amendment (1)

Desler (1608317) | about 9 months ago | (#44435719)

Only someone ignorant would think thay SCOTUS will overturn this decision. And the House and Senate impeaching them? You're joking right? How wonderful it must be to be so naive.

Re:Fourth Amendment (0)

Anonymous Coward | about 9 months ago | (#44435543)

This needs to be taken to SCOTUS, extra pronto.

Yes, and.... if the SCOTUS ruling concurs with this one, what are you, poor devils of American citizens that you are, going to do then ??

Mostly just bitch about it. The only thing that *would* work, we're all too chickenshit to follow through on.

Re:Fourth Amendment (0)

Anonymous Coward | about 9 months ago | (#44436413)

This needs to be taken to SCOTUS, extra pronto.

Yes, and.... if the SCOTUS ruling concurs with this one, what are you, poor devils of American citizens that you are, going to do then ??

Not to worry. The Americans (US citizens and permanent residents only) will merrily lick the balls of their masters, both governmental and corporate, all the while watching American Idol. The end days of the Roman Empire is repeating itself in "America". Fools.

Re:Fourth Amendment (1)

Froggels (1724218) | about 9 months ago | (#44435205)

Unfortunately the SCOTUS would in all likelihood agree with federal appeals court decision, ripping open the already gaping hole in the Constitution even further. The concept of checks and balances cannot work as intended in the current US system where the legislative executive and judicial branches of government are all serving the same greedy corporate interests. The current system is rotten at every level all the way to the core and there is nothing that anyone can do about it until it's too late. In the meanwhile it's probably best to just sit back and enjoy the partisan bickering.

Re:Fourth Amendment (0)

Anonymous Coward | about 9 months ago | (#44436465)

Putting Attorney General Eric Holder on trial for high crimes and misdemeanors would be a starting point.

Re:Fourth Amendment (2)

Hatta (162192) | about 9 months ago | (#44435285)

This needs to be taken to SCOTUS, extra pronto.

Where they can rubber stamp whatever law enforcement wants, extra extra pronto.

Are the papers yours? (1)

sjbe (173966) | about 9 months ago | (#44435575)

What? Emails, text messages and other electronic communications are not "papers", you say?

The question is whether they are *your* papers. If they aren't then the 4th amendment doesn't apply. It is not entirely obvious whether phone records should count as your property nor is it clear whether you have a reasonable expectation of privacy regarding them. (For the record *I* think they should be treated as yours and not available to law enforcement without a warrant - but that's just my opinion) If they are yours, then the question becomes whether the search is unreasonable. But if they aren't yours then the question of being an unreasonable search becomes moot.

Re:Are the papers yours? (2)

Antipater (2053064) | about 9 months ago | (#44435657)

I've often wondered why privacy lawyers don't frame it differently. It's not about the papers, it's about the person. Location tracking necessarily implies that the surveillance target is no longer secure in their person.

Re:Are the papers yours? (1)

tburkhol (121842) | about 9 months ago | (#44436143)

The question is whether they are *your* papers. If they aren't then the 4th amendment doesn't apply. It is not entirely obvious whether phone records should count as your property nor is it clear whether you have a reasonable expectation of privacy regarding them.

The papers themselves may belong to Verizon, but this information is about me. Calling them business records is fundamentally an end-run around the intent that a person's personal information be protected.

Look, technically, the results of my HIV test are just business records to my physician, but no one would argue that the government should be able to access and store that information. Phone metadata can be personally identified, which makes it the person's data. Just because some third party business is the entity that creates or collects the data doesn't make it any less my data, nor any less of an invasion for that third party to turn the data over to the government or the evening news. If the evening news opened every broadcast with a story about my latest medical test, or even just my current physical location, I would feel pretty fucking violated, regardless of whether any of their viewers "cared" or not.

Unlikely to impress SCOTUS (4, Interesting)

bill_mcgonigle (4333) | about 9 months ago | (#44434881)

The Court was unanimous in /US v. Jones [politico.com] / - it's hard to see how they'd backpedal because their concern was over the surveillance nature of modern technology, not merely the source of said data. By their logic in /Jones/, this case's data gathering would also be a search.

I'd feign shock that the 5th Circuit couldn't understand the /Jones/ decision, but it's so much more realistic to believe that those judges just wanted to give government power another bite at the /Jones/ apple.

Re:Unlikely to impress SCOTUS (2)

intermodal (534361) | about 9 months ago | (#44434953)

I agree with your reasoning. I'm just not as confident as you are in the consistency of the Supreme Court. That said, I think the 5th Circuit has willfully ignored the constituion and the intent of its clauses.

Re:Unlikely to impress SCOTUS (0)

Anonymous Coward | about 9 months ago | (#44435115)

from FTS

... the state court's ruling was based upon the text of the state's constitution, not that of the federal constitution.

I'd have to say I agree with you, though I don't understand how an appeals court would rule on the issue using only the state constitution while willfully ignoring the federal one.

Re:Unlikely to impress SCOTUS (1)

Antipater (2053064) | about 9 months ago | (#44435335)

Completely different cases. The Fifth Circuit is Texas, Louisiana, and Mississippi. The NJ court ruled using the NJ state constitution on a case regarding NJ cops.

Re:Unlikely to impress SCOTUS (1)

intermodal (534361) | about 9 months ago | (#44435371)

The synopsis does not specify which state's court they refer to in that sentence. It could be referring to either New Jersey or New York. In the former possibility, it makes sense, as states may protect above and beyond what the federal government does.

Re:Unlikely to impress SCOTUS (4, Informative)

Hatta (162192) | about 9 months ago | (#44435317)

Wasn't the issue in Jones that the police affixed the GPS tracker to the vehicle without a warrant? When you willingly carry a tracking device, the expectation of privacy is entirely different.

Re:Unlikely to impress SCOTUS (1)

Antipater (2053064) | about 9 months ago | (#44435599)

Yeah, Jones is tricky. In fact, after SCOTUS threw out the GPS data, they had a retrial [wikipedia.org] , and the prosecution used cell tracking data instead of the GPS data. The district court said that was OK. It never went back up the line to the Supremes, though, because Jones took a plea deal rather than keep fighting.

The problem is that while the justices voted unanimously in Jones, they did so for different reasons. A number regarded the placement of the GPS device as a personal trespass, which would not apply to cell data. Scalia's opinion pays lip service to the reasonable-expectation-of-privacy argument, but in reality it's up in the air if he would hold to that in a case that didn't involve personal trespass.

Re:Unlikely to impress SCOTUS (0)

Anonymous Coward | about 9 months ago | (#44435839)

The Court was unanimous in /US v. Jones [politico.com] / - it's hard to see how they'd backpedal because their concern was over the surveillance nature of modern technology, not merely the source of said data.

No, the police needed a warrant to physically place the tracker on the suspect's vehicle.

xbone (2)

anne on E. mouse cow (867445) | about 9 months ago | (#44434899)

So if MS' s XBone records you and saves the data on its corporate servers, it 'clearly' becomes business data and the government can then spy on you without pesky lawsuits or constitutional hassles.

Judge is a twisting cunt and just shafted all Americans big time.

Re:xbone (1)

gl4ss (559668) | about 9 months ago | (#44435193)

more importantly anything you store on the cloud that is somehow billed for by someone then it's interstate commerce?

sounds like bullshit.

(technically storing your email and it's access data is quite similar to this data)

Re:xbone (1)

fnj (64210) | about 9 months ago | (#44435557)

sounds like bullshit.

... and looks like ... and swims like ... and quacks like.

Hm. (5, Insightful)

Anonymous Coward | about 9 months ago | (#44434913)

Then, in the spirit of an open government, I would like to have all historical location data of all the elected politicians please.

Re:Hm. (0)

Anonymous Coward | about 9 months ago | (#44435005)

We know where you live. Please cease with your requests, This is a polite warning.

Re:Hm. (0)

Anonymous Coward | about 9 months ago | (#44435227)

This would be a good way to stop something like this. If you are a minimum wage employee working at Verizon or AT&T you should download the location records of as many politicians as you can find. You make a website called "trackmycongressman.com" that just posts all of them on a map where you can scroll through and watch them travel. They are your business records, you can disclose them if you want.

Re:Hm. (1)

GodfatherofSoul (174979) | about 9 months ago | (#44435871)

You know, that's the world we live in. If some politician finds out that his privileges have been nullified and his or his family's travel is now a matter of public record, they'll vote to pull back executive power. Slightly OT, but there was a small town around KC on a highway that commuters used. Their cops routinely wrote spurious tickets and pulled commuters over for absolutely anything and sometimes for made up reasons (touching the yellow or white line, driving too fast, driving too SLOW, in some cases a matter of 1 or two miles). Even cautious drivers were pulled over for suspicion.

Anyway, NOT a damned thing happened even with all the citizen complaints until the sheriffs were dumb enough to pull over a state legislator for false reasons. He responded by getting a law passed so that only X% of a town's revenue can come from traffic tickets. Since that was the only thing that town did, it basically dissolved after that and disbanded their police force.

What is the carriers' position? (3, Interesting)

timeOday (582209) | about 9 months ago | (#44434915)

Even if the carriers can legally share their "their" data (about you) without a warrant, nothing says they have to, unless there is a warrant. It seems a provider would have nothing to lose, and could gain, by promising confidentiality unless there is a warrant. Do any of them have any meaningful sort of privacy policy about this?

Re:What is the carriers' position? (1)

Anonymous Coward | about 9 months ago | (#44435239)

I don't know how the hell they can put "it's business" in front of "your rights" but they did. Now all we need to do is start a business that hires folks to walk around neighborhoods, keeping tabs on home address, car tags on the property, time. We don't have to stop at homes either, this could go all the way to businesses, government buildings. And it doesn't have to stop at citizens either, we can do this to police/city vehicles/personnel as well. See the thing to bring to light here is the fact that people are no longer "consumers", but rather they're "data producers". And since being a business removes all of the people's rights, then we can do whatever the fuck we want. Hey, maybe the company that I'm speaking about sounds odd, but it'd be the only company that could possibly compete with the NSA's data. I mean, as it stands, who can question the validity of NSA's data?

Re:What is the carriers' position? (0)

Anonymous Coward | about 9 months ago | (#44435247)

Providers would lose those juicy government contracts or their CEOs languish in jail (Quest) for refusing to honor a request to share their customer's data.

Re:What is the carriers' position? (1)

timeOday (582209) | about 9 months ago | (#44435703)

Thanks for the reference to Quest CEO Joseph Nacchio [wikipedia.org] . That is a fascinating and story that deserves deeper treatment, with angles of both corporate malfeasance and the security state. Hero, villain, or both? I wish I could watch a Frontline on it right now.

Re:What is the carriers' position? (3, Informative)

pixelpusher220 (529617) | about 9 months ago | (#44435325)

nothing says they have to

Actually, lots of the Patriot Act and such recent legislation is making them do exactly that. They don't have grounds to oppose a subpoena since it isn't incriminating of 'them'.

Re:What is the carriers' position? (2)

MozeeToby (1163751) | about 9 months ago | (#44435351)

Nothing to lose? You realize the government can lean on companies that don't cooperate right? Make all kinds of things more difficult, more costly, and sometimes even impossible. From spectrum deals to taxes to grants to visa applications, our various federal departments are far too interconnected to claim that they have "nothing to lose" by refusing to cooperate.

Re:What is the carriers' position? (0)

Anonymous Coward | about 9 months ago | (#44435803)

Nothing to lose... except lucrative government contracts. Government can also use regulatory red tape, block consolidation, etc. There are only four major wireless carriers out there (some might say only two considering the coverage issues of Sprint and T-Mobile). If all four are subservient to the surveillance state - what do you do? Even if some are better than others, how do you know who is handing over your data in the first place?

Consumers don't have many choices and no information about who is and isn't cooperating.

Re:What is the carriers' position? (1)

MobyDisk (75490) | about 9 months ago | (#44435835)

We need data protection laws. They should not be able to share such data without a warrant.

expectation of privacy (2)

ArcadeX (866171) | about 9 months ago | (#44435023)

if you are using a cel phone, and paying a carrier to provide service to your phone, it's a 50/50 relationship. as crappy as it is, you shouldn't have an expectation of privacy. same reason i like to pay cash, i have no expectation of privacy when visa / mastercard keep records of all the transactions performed by them on my behalf.

Re:expectation of privacy (0)

Anonymous Coward | about 9 months ago | (#44435267)

What about when you got to a hospital? The hospital is a business. Should you expect privacy with regard to your medical records? They are, after all, created by hospital employees, stored on hospital systems, to be used by hospital medical personnel. Maybe you also think that the hospital should be able copyright your records? Why shouldn't they be able to charge you a royalty when you need to share your records with another competing medical service. Medical records are really just business records, right? Thinking like yours is going to lead to this scenario eventually.

Re:expectation of privacy (4, Insightful)

CanHasDIY (1672858) | about 9 months ago | (#44435353)

if you are using a cel phone, and paying a carrier to provide service to your phone, it's a 50/50 relationship. as crappy as it is, you shouldn't have an expectation of privacy.

Hmm, let's apply that mentality to a few other arenas, and see how well it works:

If you are sending a package, and paying a carrier to deliver it, it's a 50/50 relationship... you shouldn't have an expectation of privacy; UPS can just rip open your package and go through it.

If you are traveling, and paying a service to move you (taxi/airline/etc), you shouldn't have an expectation of privacy; Taxi drivers can strip search passengers.

If you use electricity, and pay a service to provide it, you shouldn't have an expectation of privacy; the utility company can go through all your shit to see what you're using the electricity for.

Applied to pretty much any other service available/necessary, that sort of thinking obviously does not fly; so why would it be OK with communications?

Re:expectation of privacy (1)

ArcadeX (866171) | about 9 months ago | (#44435649)

if you send a sealed package, you have the expectation of that package staying sealed. you have no expectation that UPS won't keep track of where they picked up the package, and where it was delivered to; that data belongs to them. you have an expectation that the cel carrier won't read your text (not much of one), but where they pick up the text and who they deliver it to is not data that belongs soley to you.

Re:expectation of privacy (1)

CanHasDIY (1672858) | about 9 months ago | (#44436149)

if you send a sealed package, you have the expectation of that package staying sealed. you have no expectation that UPS won't keep track of where they picked up the package, and where it was delivered to; that data belongs to them. you have an expectation that the cel carrier won't read your text (not much of one), but where they pick up the text and who they deliver it to is not data that belongs soley to you.

OK, so that explains tracking in/outbound call origin/destination information... but not location tracking or any of their other questionable practices. Besides, you said that we "shouldn't have an expectation of privacy" when it comes to carrier services in general, a philosophy I not only disagree with, but find incredibly dangerous were it to become the status quo (yea, yea, I know, don't remind me).

you have an expectation that the cel carrier won't read your text (not much of one)

Say hello to 2 years ago [cnn.com]

Re:expectation of privacy (1)

Holi (250190) | about 9 months ago | (#44435673)

Well that's where you and I differ. I don't think having a business relationship with a company is enough to require me to give up my expectation of privacy. I expect them to use my usage data to bill me, not to give to the government.

If the government wants something it should be the de facto standard to need a warrant. They should not be allowed to side step the constitution by having a 3rd party collect the data.

This is wonderful news (-1)

Anonymous Coward | about 9 months ago | (#44435093)

Warrants are racist.

At the moment (1)

vikingpower (768921) | about 9 months ago | (#44435173)

...there is no such thing as a well-functioning judicial system in the USA, dixit Jimmy Carter. I tend to concur.

Eli and Jedediah... (5, Insightful)

webbiedave (1631473) | about 9 months ago | (#44435225)

... and the rest of Amish went along their day, unaware of how right they are.

Re:Eli and Jedediah... (0)

Anonymous Coward | about 9 months ago | (#44436505)

... and the rest of Amish went along their day, unaware of how right they are.

Why did you post this on the internet? Is it possible that despite its potential to track you, you still find your cell phone worth keeping?

God says! (-1)

Anonymous Coward | about 9 months ago | (#44435331)

unemployed in_a_galaxy_far_far_away slackened well-ordered
containeth pliant uprightness in_theory came larger snare
perceived shines adored girded penitent whither foretell
presiding commenders NOTICE infidelity 'knock duck_the_shoe
reckoning aches Varoom Hence very confined heightening
homo transparent furious narrow melodious constrained
virtue

Isn't the address on a letter a business record (0)

Anonymous Coward | about 9 months ago | (#44435427)

...to the USPS? Better track them too!

Re:Isn't the address on a letter a business record (0)

Anonymous Coward | about 9 months ago | (#44436725)

Its already done, there was a story a month or two back about how the FBI was perusing mailing records searching for the person(s) mailing those "ricin" letters, and I think the article mentioned how law enforcement/intelligence agencies had access to it for over a decade. I imagine there are already lists of all of those "troublemakers" contributing to the EFF/ACLU/NRA. Its the one constant in the universe, "if a government has a power, they WILL abuse that power". It wouldn't be so bad if there was at least some accountability, but as we've seen time and time again there are (at least) two standards. One for government officials/officers/appointees and one for everyone else, if it weren't all of those Whitehouse emails/visitor logs/phone records that were subpoenaed wouldn't have been "never kept"/"lost"/"too difficult to collect"/"national secrets". Its one of the great hypocrisies of our age, as government continually demands more and more access into the private lives of its citizens they invoke ever increasing secrecy in their own activities (ALL activities, not just defense related). In a "free" society that is not a good sign.

Privacy Amendment NOW (0)

Anonymous Coward | about 9 months ago | (#44435471)

In the Federalist No. 84, Alexander Hamilton wrote, under the pseudonym Publius, the following about the Bill of Rights:

I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.

With the decimation of the 4th Amendment made by laws and court rulings which have created these "various exceptions to powers" (i.e national security), it looks like Hamilton was correct. Unfortunately, the only course left to the country to preserve the recognition of our natural right to privacy is an amendment which specifically updates the 4th Amendment for the digital age.

This is insane (0)

Anonymous Coward | about 9 months ago | (#44435493)

First they have to qualify it with "per se", and second of all they are positing that "location data" and "business record" are synonymous. What the hell is wrong with these people? Location data is clearly location data, and business records are business records. They are not each other.

Shining example of why nothing good lasts forever (5, Insightful)

TheCarp (96830) | about 9 months ago | (#44435521)

The moment you write a document like the constitution, somebody is looking for how to game it. Over time they find technicality after technicality that allow them to push the envelope in new ways, until the entire spirit and intent of the original document is so shreded that it barely resembles what it was intended to.

How do we read amendments like the 4th and 5th so narrowly? Is it really ok that minor technological changes allow technicalities to be used to extend government powers in ways never before envisioned?

How does anyone seriously and honestly look at the constitution, then look at what is going on here, and not see that the only reason this doesn't get prohibited under them is minor technicalities that never could have been seen before they happened? Its a violation of the very spirit of the document!

Re:Shining example of why nothing good lasts forev (0)

Anonymous Coward | about 9 months ago | (#44435785)

in other words

this is why we can't have nice things, america.

c'est la guerre, or something (1)

Impy the Impiuos Imp (442658) | about 9 months ago | (#44435629)

"In a significant victory for law enforcement"

Gotta love ignorant writers. How about, "In an astounding loss for the framers of the Constitution..."

Note to future constitution writers: "Government has only these powers and none others", "you can't construct other powers from these", and "whenever new stuff is invented, if government isn't authorized, it can't. Amend if desired to allow it" are just optional.

You're gonna need better language. Because you sure ain't gonna get better people.

Now, people are businesses (1)

WOOFYGOOFY (1334993) | about 9 months ago | (#44435841)

Not only are business people, with the freedom so speech and the ability to contribute unlimited funds to elections, but now, people are businesses with no 4th Amendment rights.

The transformation is complete. The fascist dream of merging corporate power with state power has been achieved *by turning people into businesses.*

That's how they win. They come at you in a way you never imagined.

Good luck (0)

Anonymous Coward | about 9 months ago | (#44435843)

With apologies to Tommy Chong: All of you cats who think the government can be changed to fix this problem, well you're all fucked!

17 People Determine the Outcome for Millions (1)

sl4shd0rk (755837) | about 9 months ago | (#44436399)

The court is composed of seventeen active judges [wikipedia.org] and is based at the John Minor Wisdom United States Court of Appeals Building in New Orleans, Louisiana.

Many of the judges were appointed by Bush and Regan. Go figure why this didn't pass :|

(doesn't quite paste correctly from the link so use you imagination)

# Judge Duty station[4][5] Born Appointed Chief Appointed by
71 Carl E. Stewart Shreveport, LA 1950 1994 2012 Clinton
51 Carolyn Dineen King[6] Houston, TX 1938 1979 19992006 Carter
60 E. Grady Jolly Jackson, MS 1937 1982 Reagan
61 W. Eugene Davis Lafayette, LA 1936 1983 Reagan
63 Edith H. Jones Houston, TX 1949 1985 2006 2012 Reagan
64 Jerry Edwin Smith Houston, TX 1946 1987 Reagan
73 James L. Dennis New Orleans, LA 1936 1995 Clinton
74 Edith Brown Clement New Orleans, LA 1948 2001 G.W. Bush
75 Edward C. Prado San Antonio, TX 1947 2003 G.W. Bush
77 Priscilla Owen Austin, TX 1954 2005 G.W. Bush
78 Jennifer Walker Elrod Houston, TX 1966 2007 G.W. Bush
79 Leslie H. Southwick Jackson, MS 1950 2007 G.W. Bush
80 Catharina Haynes Dallas, TX 1963 2008 G.W. Bush
81 James E. Graves, Jr. Jackson, MS 1953 2011 Obama
82 Stephen A. Higginson New Orleans, LA 1961 2011 Obama

Business Records? (0)

Anonymous Coward | about 9 months ago | (#44436467)

A business record with no real purpose for its collection as far as the business is concerned? These tracking/location systems were not put in place by the businesses in question but by government regulators/officials putting pressure on carriers to create these "features" for law enforcement purposes. This is like saying law enforcement searching your apartment is ok because your landlord has a stipulation that he can check your apartment for maintenance issues, and that stipulation was put in place by the city/state/feds.

billing statements (0)

Anonymous Coward | about 9 months ago | (#44436473)

so iare my doctors billing records concerning me revueable with out a warrent?
they're clearing bussiness records.

business record ? Not really (0)

Anonymous Coward | about 9 months ago | (#44437023)

the court said a warrantless search was 'not per se unconstitutional' because location data was 'clearly a business record'

That would maybe be true if the business would be holding on to that data for billing-purposes (or alike).

They stop being 'business records' when the business do not need them anymore. Than they become trash, clutter or any other word you want to use for worthless, space-occupying stuff. Its just that they are not allowed to throw them away because of "you must keep them available to us" laws the gouverment has created.

So, arguably those records are, from the moment the business does not need them anymore but are not allowed to throw them away, something quite different (unwarranted searches before-the-fact comes to mind).

Ofcourse, the Law is no stranger to juggeling with words when it benefits them ...

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