

Justice Department to defend warrantless cell phone tracking - dhconnelly
http://news.cnet.com/8301-13578_3-57524109-38/justice-dept-to-defend-warrantless-cell-phone-tracking/

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macchina
Many of these difficult legal questions could be avoided if Congress would
simply pass legislation governing this method of investigation.

Right now, all over the country, the FBI obtains sealed (secret) court orders
to obtain _real time_ cell site data under a "hybrid theory" combining the
Pen/Trap Statute (law for obtaining incoming and outgoing phone numbers) and
Stored Communications Act (law for obtaining stored subscriber information
from ISPs). However, Pen/Trap says location data cannot be obtained through
its operation and the SCA only permits disclosure of "historical" not real
time information.

The result is, the FBI obtains information to track individuals under a
standard well below probable cause from a magistrate judge. The orders are
sealed, and because the order applications are made ex parte, their legality
has never been litigated in court or given meaningful judicial review.

Magistrate Judges Stephen Wm. Smith in Texas and Orenstein in New York were
the first judges to question the government's theory and deny applications. An
application Smith denied in 2010 is the subject of this appeal.

This is Smith's Congressional testimony from 2010 which gives a good (and
readable) overview of the problems in the current system:
<http://or.fd.org/Sady/Judge%20Smith%20testimony.pdf>

And here is a law review article that deals with highly convoluted legal
issues: <http://www.arizonalawreview.org/pdf/53-2/53arizlrev663.pdf>

------
eck
If a cell phone company really had balls, they'd make a website where you can
see realtime and historical location data for every cellphone owned by every
elected official and federal judge. They have "no privacy interest", after
all, so I guess that would be no big deal...

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stephengillie
If we're innocent, why do we need to be tracked? If they have no suspicion of
guilt, then for what reason do they need data about us?

I want the protection of 'requiring a judge's approval' before police are
allowed to track me. The risk of having my self or my information at the mercy
of either corrupt, or easily hacked, law enforcement is too great.

~~~
dmorgan
> _If we're innocent, why do we need to be tracked?_

Because governments, including the american government, are well known to also
persecute the innocent.

It's not about murderers, fraudsters and rapists --it's all about political
cases, whistleblowers, dissidents, and such.

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btilly
This is a difficult issue. For most of us, our cell phone is where our body
is, so you're tracking the person. It is easy to imagine ways that this data
could be abused.

On the other hand turn it around. Suppose that there was a rash of burglaries
and you were the investigating officer. Wouldn't you want to be able to find
all cell phones that were in proximity to a significant number of the
burglaries at the time that they happened? This kind of speculative data
mining could be a good source of leads, but you can't engage in it unless you
have a lot of data on a lot of innocent people. (And, as always with data
mining, until you have the data, you don't know what questions you want to ask
of it.)

But the problem is that if the data is centralized and accessible, the
minority who would abuse it will access it as well. And the worse abusers are
people like Hoover and Nixon - people who will use this data to try to push
political aims.

~~~
rhizome
I don't see it as a difficult issue at all. The effects of false positives
(and they are going to be mostly, almost totally, false positives by
definition) in your scenario make it a non-starter, period. For property
crimes?

I can see a rationale that they aren't really false positives since nobody is
being accused or whatever, but that's just moving the goalposts such that it
becomes OK to investigate random people like Nixon and Hoover (et al), but I
will put good money down on the eventuality of someone with a criminal record,
a cellphone, and an airtight alibi getting their home raided and them being
injured or killed.

Of course it's a good source of leads, for some value of "lead." That's the
problem. By way of analogy, there are plenty of people, some of them extremely
high profile, who have criminally affected the world's economies and are
getting away with it right this minute, so maybe let's take care of the crimes
we have actual evidence of laws being broken before we get all Inspector
Gadget about relatively minor crimes.

The only difficult part of the issue is how to explain it in a way that
portrays it as both harmless and necessary, because it's neither.

~~~
Semiapies
Remember that false positives _aren't really a problem_ to police and
especially prosecutors. Most criminal cases in the US don't go to trial, so
they just want enough to sweat people into plea-bargaining.

~~~
rhizome
Right, the same as the DoJ peeps who are going to be defending this: the ends
justify the means.

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mtgx
I hope this goes to the Supreme Court. I doubt it will be declared
constitutional. Most people aren't even aware the Government is doing this, or
at best they think it's just a silly conspiracy theory they've heard from
their friends, but don't really believe it. When that's the situation, it
should definitely be declared unconstitutional.

~~~
bediger4000
The US Supreme Court has shaved the 4th Amendment pretty thin in the last few
years. See <http://www.fourthamendmentsummaries.com/>, "1990s cases" and
"Cases after 2000" - there aren't very many of them. One case not mentioned on
that web site is last year's "FBI can't track cars by GPS without a warrant"
decision, which was made on trespassing grounds.

The US Supreme Court has taken a very legalistic view of what constitutes
"search and seizure", what constitutes "in public" and what constitutes
"private". These views don't coincide with common usage of any of the words or
phrases, so yes, most people would be shocked to find out how they've been
snooped on.

But I doubt the current Supreme Court will do anything other than allow it, on
some weird technical basis that only lawyers and judges can understand or
love.

~~~
dreamdu5t
Legalistic isn't the term - Orwellian is. The Supreme Court has legally
defined interstate commerce to mean intrastate, trade to mean possession, and
probable to mean possible. Their decisions have increasingly been
unconstitutional.

They threw out all hope of remaining remotely constitutional when they ruled
in Gonzales v. Raich.

See: <http://en.wikipedia.org/wiki/Gonzales_v._Raich> and
<http://en.wikipedia.org/wiki/Wickard_v._Filburn>

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diminoten
Are phones as crackable as they used to be?

I remember reading stories about how if you leave your bluetooth on, you're
basically leaving your phone wide open. These days though, most phones require
four digit passcodes and what I assume are fail2ban-like features. Am I wrong
to assume that, or does it not matter for other reasons?

I know TV shows like Person of Interest use technology more as a plot device
than as a display of possibility, but the idea of forced pairing was a thing
at _some_ point, wasn't it?

