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How a Radio Shack Robbery Could Spur a New Era in Digital Privacy

122 points by petethomas 9y ago

gr3yh47 9y ago
It's unfortunate that so often the constitution is defended in cases where there's clear wrongdoing, but I sure hope the fourth is upheld, and law enforcement learns to - and is forced to by court rulings - knock it off with massive orwellian surveillance
- mrguyorama 9y ago
  The point is that if there is such clear wrongdoing, law enforcement should not have to trample a suspect's rights to find such wrongdoing.
  - dsfyu404ed 9y ago
    Exactly. If they're so guilty then doing everything perfect and by the book should be a walk in the park.
- mitchdoogle 9y ago
  How else could it be defended? Considering that someone has to show injury before courts will take up a case, it's usually going to be someone that's been charged with a crime whose privacy has been invaded.
  - khedoros1 9y ago
    I think they're saying that people would be more sympathetic and supportive of the amendment if it turned out that the accused was innocent.
    - bsder 9y ago
      The FBI/NSA/Police won't let those cases get to this point. Every time a case with an innocent starts winding through, the government drops the case, after having caused much grief to the innocent in question, rather than risk having their surveillance powers curtailed.
  - gr3yh47 9y ago
    ahh i see the lack of clarity - i was referring to cases where the person whose rights were violated was someone clearly guilty of or at least very likely did commit the crime with which they are charged
- Aloha 9y ago
  I'd argue its neither massive, nor terribly orwellian, right now its a bunch of private companies generating a huge number of data points, which the government then sometimes uses. There is no known program to monitor in real time the position of every citizen - right now all of the data the government uses is incidental to the voluntary use of another service. I don't take much issue with the service generating that data - but in no case should it be considered commoditizable nor should the government be able to access it on a whim for whatever purpose the government sees fit. Right now the process is working as defined, the law exists to constrain abuses, and to a lesser extent prevent them - but the presumption of the founders was that government will always try to take the maximum amount of power it can, and that the courts exist largely to strike the balance.
username223 9y ago
It's a start, but the real problem is that the data exists in the first place. Modern "surveillance capitalism" is the underlying cancer, and warrantless government snooping and targeted ads are just symptoms.
- Aloha 9y ago
  Is it? There are valid reasons why cellular provider would create that information in the first place - largely to do with automated network repair stuff (you can find malconfigured neighbor lists in CDMA systems for example), or automated network metrics. The issue isn't creating this kind of data, its excessive retention, warrantless government use of it, and using it as another revenue stream to tell it to third parties - but the generation itself on the surface seems perfectly valid.
  - digi_owl 9y ago
    As a foreigner i have found it highly annoying how US companies, particular Amazon, simply store my credit card data without any clear prompting or similar. If i want to trade there, i am perfectly capable of inputting the various digits and such each time, thank you very much.
    - craftyguy 9y ago
      It's harder for folks to make impulse purchases if they have to take time to locate their credit card and enter the digits every time. This behavior you have observed is by design.
      - digi_owl 9y ago
        In other words, the US consumer economy is a massive hamster wheel...
        CamTin 9y ago
        That may be true, but I'm not sure how you glean it just from the observation that smart companies try to make it as easy as possible for customers to spend money with them. Every smart businessman since the stone age has tried to do the same thing.
KeepTalking 9y ago
Planet money did a take on this robbery and its digital privacy implications. Worth a listen.https://www.npr.org/sections/money/2017/11/08/562888974/episode-804-your-cell-phones-a-snitch https://www.npr.org/sections/money/2017/11/08/562888974/epis...
ust 9y ago
There was an interesting discussion about 4A implications between Orin Kerr (who thinks, that according to 3rd party doctrine, there was no need for a warrant, and therefore no 4A protections of cell-cite data) and Alex Abdo (of ACLU, who argues that, since the collection was too excessive, it does trigger 4A protections). Link: https://www.youtube.com/watch?v=hW32k7x7zE0 https://www.youtube.com/watch?v=hW32k7x7zE0
vaadu 9y ago
Hopefully the ruling encompasses other modern technologies and methods for location tracking such as smart tag data, facial recognition and license plate readers. All of them result in data similar to person X was at location Y at time Z.
giarc 9y ago
My question to any lawyers or legal experts in the room. Would the opposite be true? If my phone isn't at the location of the crime, can I argue that I also wasn't there? Therefore a criminal just needs to leave his/her cell phone at home and present the location data as evidence.
- pm90 9y ago
  No. Because your cellphone may not have been on your person. If it isn't clear yet: the cellphone records were used to find the suspected ringleader (the appealing person in the case). They weren't the sole evidence for his conviction by lower courts.
  - giarc 9y ago
    I see, so even if the SCOTUS finds the police over reached with the data they gathered, Tiny Tim could still have his sentence upheld.
Mankhool 9y ago
>urging the Supreme Court to continue to bring Fourth Amendment law into the modern era. If the Supreme Court can do this, then perhaps it could bring the Second Amendment law into the modern era.
- dragonwriter 9y ago
  The fundamental premise is no longer valid. It was premised not on the state-based popular militia as a counterbalance to government forces, but the government's dependence on the state-based popular militia to meet it's need for significant forces, with the limited standing forces forming a cadre for a wartime/emergency force comprised nearly entirely of mobilized popular militia. The large standing post-WWII force undermined that premise, and the transition to an all-volunteer force demolished it. While Fourth Amendment law needs some serious reconsideration of the mechanism by which the protections are best given effect given new technologies and social context, that’s a lot smaller issue than addressing the modern realization of the goals of the Second Amendment.
  - pm90 9y ago
    > The fundamental premise is no longer valid That is exactly true, but the problem with abiding by a written constitution is that as long as the words are in there, it is the Supreme Law of the land. Its rather unfortunate, but its one of the risks assumed when a country decides on the Constitutional System. And all the political partisanship makes it unlikely that this will be changed (i.e. Constitution changed) anytime soon.
- Washuu 9y ago
  Trying to compare the Second and Fourth for reworking does not work well since they are fundamentally different concepts. In the case of both amendments the laws enacted surrounding them are the issues. In the case of the fourth amendment there are problematic laws such as civil asset forfeiture that are overreaching and result in the lost of property loss with little to no resource. In the case of the second amendment the laws are usually created by people who don't even know how guns work at a fundamental level.
coding123 9y ago
So if I was unlucky enough to be near a couple of the robbery locations, I might be swept up in the dragnet based on my phone location. Even if 6 of 8 robbery locations my phone was clearly elsewhere the police may still try to make a case that I only participated in two of the robberies. That's some scary excrement right there. There needs to be a much larger burden or proof than location info. Even if a suspected phone is at 8/8 locations (like the robbers have a way of steeling an someone's phone and putting it back before/after a robbery just to help incriminate someone else). (See the movie Rampage)
- marci 9y ago
  > See the movie Rampage Which one? https://en.wikipedia.org/wiki/Rampage https://en.wikipedia.org/wiki/Rampage
  - BLKNSLVR 9y ago
    The 2009 one, directed by Uwe Boll https://en.wikipedia.org/wiki/Rampage_(2009_film) https://en.wikipedia.org/wiki/Rampage_(2009_film)
- JustSomeNobody 9y ago
  And you know there's a LE conversation happening that goes, "well, if they didn't commit this crime, we have plenty of unsolved ones to compare the data against."
  - specialist 9y ago
    Pretty much. The sales guy from Seisent (bought by Lexis/Nexus) gave examples of their data mining of demographic data helped solve cold cases. Back in 2005. Both awesome AND scary.
- pm90 9y ago
  > So if I was unlucky enough to be near a couple of the robbery locations, I might be swept up in the dragnet based on my phone location. Even if 6 of 8 robbery locations my phone was clearly elsewhere the police may still try to make a case that I only participated in two of the robberies. I don't think you are reading this right. This wasn't some random person who happened to be in the same place as the robberies. I believe one of the robbers testified that he was their ringleader. I feel like the cellphone data needlessly jeopardized the whole operation. A judge would probably have given an actual warrant to search online data for 12 people on the contact list of the robber. But this is the thing: the police in this case were used to getting by without a warrant and so probably didn't think twice about getting all that data (which they should). The question being considered is whether that warrant less search is illegal. If SCOTUS does overturn this decision, the guy's conviction would be thrown out causing much outrage. I hope they do: the privacy laws are clearly not strong enough.
c3534l 9y ago
> Mr. Wessler said prosecutors should be required to obtain a warrant when they seek more than 24 hours’ worth of location data. When even the defense is saying that you don't actually need a warrant to search phone GPS records, only to conduct long-term nonspecific espionage then the goal-posts have moved so far beyond anything recognizable as rights and into a land of bizarre technicalities with arbitrary bright-lines in the sand completely devoid of the intented meaning of the bill of rights. Here's the only question they should be asking: did you get a warrant? No? Then fuck off. If you want to submit evidence to convict someone in a court of law, you have to first demonstrate to an unbiased third party that you have the right to gather that evidence. The meaning of that amendment was plain to common people in 1791 and it means the same thing in 2017. Warrant first then you can use it as evidence.

122 points by petethomas 9y ago

It's unfortunate that so often the constitution is defended in cases where there's clear wrongdoing, but I sure hope the fourth is upheld, and law enforcement learns to - and is forced to by court rulings - knock it off with massive orwellian surveillance

mrguyorama 9y ago
The point is that if there is such clear wrongdoing, law enforcement should not have to trample a suspect's rights to find such wrongdoing.
- dsfyu404ed 9y ago
  Exactly. If they're so guilty then doing everything perfect and by the book should be a walk in the park.
mitchdoogle 9y ago
How else could it be defended? Considering that someone has to show injury before courts will take up a case, it's usually going to be someone that's been charged with a crime whose privacy has been invaded.
- khedoros1 9y ago
  I think they're saying that people would be more sympathetic and supportive of the amendment if it turned out that the accused was innocent.
  - bsder 9y ago
    The FBI/NSA/Police won't let those cases get to this point. Every time a case with an innocent starts winding through, the government drops the case, after having caused much grief to the innocent in question, rather than risk having their surveillance powers curtailed.
- gr3yh47 9y ago
  ahh i see the lack of clarity - i was referring to cases where the person whose rights were violated was someone clearly guilty of or at least very likely did commit the crime with which they are charged
Aloha 9y ago
I'd argue its neither massive, nor terribly orwellian, right now its a bunch of private companies generating a huge number of data points, which the government then sometimes uses. There is no known program to monitor in real time the position of every citizen - right now all of the data the government uses is incidental to the voluntary use of another service. I don't take much issue with the service generating that data - but in no case should it be considered commoditizable nor should the government be able to access it on a whim for whatever purpose the government sees fit. Right now the process is working as defined, the law exists to constrain abuses, and to a lesser extent prevent them - but the presumption of the founders was that government will always try to take the maximum amount of power it can, and that the courts exist largely to strike the balance.

username223 9y ago

It's a start, but the real problem is that the data exists in the first place. Modern "surveillance capitalism" is the underlying cancer, and warrantless government snooping and targeted ads are just symptoms.

Aloha 9y ago
Is it? There are valid reasons why cellular provider would create that information in the first place - largely to do with automated network repair stuff (you can find malconfigured neighbor lists in CDMA systems for example), or automated network metrics. The issue isn't creating this kind of data, its excessive retention, warrantless government use of it, and using it as another revenue stream to tell it to third parties - but the generation itself on the surface seems perfectly valid.
- digi_owl 9y ago
  As a foreigner i have found it highly annoying how US companies, particular Amazon, simply store my credit card data without any clear prompting or similar. If i want to trade there, i am perfectly capable of inputting the various digits and such each time, thank you very much.
  - craftyguy 9y ago
    It's harder for folks to make impulse purchases if they have to take time to locate their credit card and enter the digits every time. This behavior you have observed is by design.
    - digi_owl 9y ago
      In other words, the US consumer economy is a massive hamster wheel...
      - CamTin 9y ago
        That may be true, but I'm not sure how you glean it just from the observation that smart companies try to make it as easy as possible for customers to spend money with them. Every smart businessman since the stone age has tried to do the same thing.

KeepTalking 9y ago

Planet money did a take on this robbery and its digital privacy implications. Worth a listen.https://www.npr.org/sections/money/2017/11/08/562888974/episode-804-your-cell-phones-a-snitch https://www.npr.org/sections/money/2017/11/08/562888974/epis...

ust 9y ago

There was an interesting discussion about 4A implications between Orin Kerr (who thinks, that according to 3rd party doctrine, there was no need for a warrant, and therefore no 4A protections of cell-cite data) and Alex Abdo (of ACLU, who argues that, since the collection was too excessive, it does trigger 4A protections). Link: https://www.youtube.com/watch?v=hW32k7x7zE0 https://www.youtube.com/watch?v=hW32k7x7zE0

vaadu 9y ago

Hopefully the ruling encompasses other modern technologies and methods for location tracking such as smart tag data, facial recognition and license plate readers. All of them result in data similar to person X was at location Y at time Z.

giarc 9y ago

My question to any lawyers or legal experts in the room. Would the opposite be true? If my phone isn't at the location of the crime, can I argue that I also wasn't there? Therefore a criminal just needs to leave his/her cell phone at home and present the location data as evidence.

pm90 9y ago
No. Because your cellphone may not have been on your person. If it isn't clear yet: the cellphone records were used to find the suspected ringleader (the appealing person in the case). They weren't the sole evidence for his conviction by lower courts.
- giarc 9y ago
  I see, so even if the SCOTUS finds the police over reached with the data they gathered, Tiny Tim could still have his sentence upheld.

Mankhool 9y ago

>urging the Supreme Court to continue to bring Fourth Amendment law into the modern era. If the Supreme Court can do this, then perhaps it could bring the Second Amendment law into the modern era.

dragonwriter 9y ago
The fundamental premise is no longer valid. It was premised not on the state-based popular militia as a counterbalance to government forces, but the government's dependence on the state-based popular militia to meet it's need for significant forces, with the limited standing forces forming a cadre for a wartime/emergency force comprised nearly entirely of mobilized popular militia. The large standing post-WWII force undermined that premise, and the transition to an all-volunteer force demolished it. While Fourth Amendment law needs some serious reconsideration of the mechanism by which the protections are best given effect given new technologies and social context, that’s a lot smaller issue than addressing the modern realization of the goals of the Second Amendment.
- pm90 9y ago
  > The fundamental premise is no longer valid That is exactly true, but the problem with abiding by a written constitution is that as long as the words are in there, it is the Supreme Law of the land. Its rather unfortunate, but its one of the risks assumed when a country decides on the Constitutional System. And all the political partisanship makes it unlikely that this will be changed (i.e. Constitution changed) anytime soon.
Washuu 9y ago
Trying to compare the Second and Fourth for reworking does not work well since they are fundamentally different concepts. In the case of both amendments the laws enacted surrounding them are the issues. In the case of the fourth amendment there are problematic laws such as civil asset forfeiture that are overreaching and result in the lost of property loss with little to no resource. In the case of the second amendment the laws are usually created by people who don't even know how guns work at a fundamental level.

coding123 9y ago

So if I was unlucky enough to be near a couple of the robbery locations, I might be swept up in the dragnet based on my phone location. Even if 6 of 8 robbery locations my phone was clearly elsewhere the police may still try to make a case that I only participated in two of the robberies. That's some scary excrement right there. There needs to be a much larger burden or proof than location info. Even if a suspected phone is at 8/8 locations (like the robbers have a way of steeling an someone's phone and putting it back before/after a robbery just to help incriminate someone else). (See the movie Rampage)

marci 9y ago
> See the movie Rampage Which one? https://en.wikipedia.org/wiki/Rampage https://en.wikipedia.org/wiki/Rampage
- BLKNSLVR 9y ago
  The 2009 one, directed by Uwe Boll https://en.wikipedia.org/wiki/Rampage_(2009_film) https://en.wikipedia.org/wiki/Rampage_(2009_film)
JustSomeNobody 9y ago
And you know there's a LE conversation happening that goes, "well, if they didn't commit this crime, we have plenty of unsolved ones to compare the data against."
- specialist 9y ago
  Pretty much. The sales guy from Seisent (bought by Lexis/Nexus) gave examples of their data mining of demographic data helped solve cold cases. Back in 2005. Both awesome AND scary.
pm90 9y ago
> So if I was unlucky enough to be near a couple of the robbery locations, I might be swept up in the dragnet based on my phone location. Even if 6 of 8 robbery locations my phone was clearly elsewhere the police may still try to make a case that I only participated in two of the robberies. I don't think you are reading this right. This wasn't some random person who happened to be in the same place as the robberies. I believe one of the robbers testified that he was their ringleader. I feel like the cellphone data needlessly jeopardized the whole operation. A judge would probably have given an actual warrant to search online data for 12 people on the contact list of the robber. But this is the thing: the police in this case were used to getting by without a warrant and so probably didn't think twice about getting all that data (which they should). The question being considered is whether that warrant less search is illegal. If SCOTUS does overturn this decision, the guy's conviction would be thrown out causing much outrage. I hope they do: the privacy laws are clearly not strong enough.

c3534l 9y ago

> Mr. Wessler said prosecutors should be required to obtain a warrant when they seek more than 24 hours’ worth of location data. When even the defense is saying that you don't actually need a warrant to search phone GPS records, only to conduct long-term nonspecific espionage then the goal-posts have moved so far beyond anything recognizable as rights and into a land of bizarre technicalities with arbitrary bright-lines in the sand completely devoid of the intented meaning of the bill of rights. Here's the only question they should be asking: did you get a warrant? No? Then fuck off. If you want to submit evidence to convict someone in a court of law, you have to first demonstrate to an unbiased third party that you have the right to gather that evidence. The meaning of that amendment was plain to common people in 1791 and it means the same thing in 2017. Warrant first then you can use it as evidence.