6 ms·

Am I the only one surprised that this is allowed in the first place? What established practices/precedent does the state have that "it could warrantlessly get c

Am I the only one surprised that this is allowed in the first place? What established practices/precedent does the state have that "it could warrantlessly get cell phone location data to find anyone, anytime, at any place as long as it was less than six hours old"? That seems like precisely the information that should require a warrant, no?

CPLX 7y ago
To shorthand the basic principle, you’re only promised privacy for your personal papers. Since this info is shared with a third party (the phone company) it’s no longer considered private. Of course that’s problematic but that’s the basic concept.
- giancarlostoro 7y ago
  If they dont make it public to everyone they shouldnt plainly make it public to the government. In an age of identity theft and smarter high tech criminals this sort of data should be on lockdown and under scrutiny for access.
- Taniwha 7y ago
  But it's not shared with the phone company - this case is about pinging a phone to make it give up its GPS location
  - Bartweiss 7y ago
    That's a key question for this case, yeah. United States v. Graham held, with significant controversy, that obtaining historical location data from a phone company is shared with a third party and so lacks 4th Amendment protection. But the Massachusetts court finding for this case centered on the ping; law enforcement can't ask third parties to conduct specific searches in its place, which was effectively what they did here. (Similarly, there's a standing case about the FBI use of paid GeekSquad informants which hinges on whether they were being paid for discoveries in the course of work, or implicitly hired to conduct searches.) That said, two judges here held that even if the Fourth Amendment doesn't protect location data, the Massachusetts constitution does. So once the targeted-request program ends, we may see this question revisited.
bellerose 7y ago
In the US, the typical consensus for law enforcement & government entities, is basically use whatever's available that's beneficial and when nothing has been written into law about it. So I doubt warrant covers much about digital data and that can be accessed from third parties or intercepted when traveling over the air with special devices.
dragonwriter 7y ago
> What established practices/precedent does the state have that "it could warrantlessly get cell phone location data to find anyone, anytime, at any place as long as it was less than six hours old"? There's precedent allowing use of such data without a warrant where there is an immediate need, but probably no clear boundary in precedent: taking a broad interpretation of authority which clearly exists in some form until courts have drawn a clear demarcation is not at all unusual. > That seems like precisely the information that should require a warrant, no? No, I think the set of legitimate warrantless access to such data (the exigent circumstances the court refers to) would be a subset of the set of less-than-six-hour-old data, so the limitation the State appl d is in the right direction though still very much too broad; if it only allowed historical but not current data, then it would be precisely the information that should require a warrant rather than a far-too-broad line around legitimate warrantless access.
spaceheretostay 7y ago
A common feature of our modern society is that bad actors will take illegal actions and rarely/never face repercussions. This emboldens them to further do more illegal things. Meanwhile, the courts take months or years to reach decisions (especially regarding technology) and in the passing time the practice becomes normalized [1] or already the damage is done. Perhaps in that time new technological paradigms create fuzzier muddier waters and the same crimes "can" continue "legally" while the courts decide, yet again. It is a flaw in our current system. It is most obvious at the federal level, where the President and many Republicans routinely break laws in obvious manners, while the courts fight it out for years. [1] Some of our laws are based on what is 'normal'. So after some years of a practice taking place clearly illegally, it can become to be seen as 'normal' by society and therefore legalized de facto. For example "cruel and unusual punishment" does not outlaw the death penalty because it already exists and is sufficiently common to not count as unusual.
- giggles_giggles 7y ago
  >the President and many Republicans routinely break laws in obvious manners Can you link to some citations regarding this? If one of our political parties and our elected officials are brazenly breaking the law I'd sure like to know about it!
  - spaceheretostay 7y ago
    The redacted Mueller report does a good job getting started on a well-researched list of crimes committed by the President and various fellow Republicans. You can find it all over the web. If it is too long and dense and you wish a summary, many reputable lawyers and journalists have written down their understanding of the laws broken, the context and their intents. There are many more than listed in the Mueller report but it's a good start. It is hard to read your comment in good faith however, as I assume it is likely you already knew about this detailed list of the President's crimes if you truly "sure would like to know about it!" Edit: By popular demand, here is a direct link to justice.gov for the redacted Mueller report. https://www.justice.gov/storage/report.pdf https://www.justice.gov/storage/report.pdf
jasonjayr 7y ago
The "Third Party Doctrine" https://en.wikipedia.org/wiki/Third-party_doctrine https://en.wikipedia.org/wiki/Third-party_doctrine Everyone storing data in "the cloud" is also at risk, the cloud provider can voluntarily hand data to law enforcement at their discretion. IIRC this also comes into play when your email messages are hosted on a 3rd party server that you do not own.
- deleted 7y ago
  [deleted]
- rgbrenner 7y ago
  Cloud data and email are protected by the Electronic Communications Privacy Act: https://en.wikipedia.org/wiki/Electronic_Communications_Privacy_Act https://en.wikipedia.org/wiki/Electronic_Communications_Priv... Under the ECPA they need to obtain a warrant for email and other cloud storage services, unless it's older than 180 days... then it's considered "abandoned". There's been some effort to remove the 180 day limit.. some states have laws that protect older data + the 6th circuit already extended it past 180 days in US v Warshark.. but we need a national law like the Email Privacy Act that the House passed last year (but the senate didn't): https://www.natlawreview.com/article/house-judiciary-committee-approves-email-privacy-act https://www.natlawreview.com/article/house-judiciary-committ... https://en.wikipedia.org/wiki/Email_Privacy_Act https://en.wikipedia.org/wiki/Email_Privacy_Act
  - samstave 7y ago
    Fun fact: some major coporations have a defacto policy to auto delete all emails older than 180 days. Period. This alows them to bot have those emails available to government spying as a writ. One company who does this is lockheed. Basically if you are a defense contractor - you do this.
    - matt4077 7y ago
      Fun fact: this is bullshit. Large companies, especially public ones and those doing business with the government, follow different sets of rules specifying retention times. For anything that has an impact on accounting, the minimum is usually 5 years. If you’re trying to get an FAA approval for anything that flies, it’s much longer. Bonus: the 180 days mentioned above is for third party service providers as the cutoff of considering information to be “in transit”. Is has absolutely no bearing on in-house systems which have first-party protection.
deleted 7y ago
[deleted]

CPLX 7y ago

To shorthand the basic principle, you’re only promised privacy for your personal papers. Since this info is shared with a third party (the phone company) it’s no longer considered private. Of course that’s problematic but that’s the basic concept.

giancarlostoro 7y ago
If they dont make it public to everyone they shouldnt plainly make it public to the government. In an age of identity theft and smarter high tech criminals this sort of data should be on lockdown and under scrutiny for access.
Taniwha 7y ago
But it's not shared with the phone company - this case is about pinging a phone to make it give up its GPS location
- Bartweiss 7y ago
  That's a key question for this case, yeah. United States v. Graham held, with significant controversy, that obtaining historical location data from a phone company is shared with a third party and so lacks 4th Amendment protection. But the Massachusetts court finding for this case centered on the ping; law enforcement can't ask third parties to conduct specific searches in its place, which was effectively what they did here. (Similarly, there's a standing case about the FBI use of paid GeekSquad informants which hinges on whether they were being paid for discoveries in the course of work, or implicitly hired to conduct searches.) That said, two judges here held that even if the Fourth Amendment doesn't protect location data, the Massachusetts constitution does. So once the targeted-request program ends, we may see this question revisited.

bellerose 7y ago

In the US, the typical consensus for law enforcement & government entities, is basically use whatever's available that's beneficial and when nothing has been written into law about it. So I doubt warrant covers much about digital data and that can be accessed from third parties or intercepted when traveling over the air with special devices.

dragonwriter 7y ago

> What established practices/precedent does the state have that "it could warrantlessly get cell phone location data to find anyone, anytime, at any place as long as it was less than six hours old"? There's precedent allowing use of such data without a warrant where there is an immediate need, but probably no clear boundary in precedent: taking a broad interpretation of authority which clearly exists in some form until courts have drawn a clear demarcation is not at all unusual. > That seems like precisely the information that should require a warrant, no? No, I think the set of legitimate warrantless access to such data (the exigent circumstances the court refers to) would be a subset of the set of less-than-six-hour-old data, so the limitation the State appl d is in the right direction though still very much too broad; if it only allowed historical but not current data, then it would be precisely the information that should require a warrant rather than a far-too-broad line around legitimate warrantless access.

spaceheretostay 7y ago

A common feature of our modern society is that bad actors will take illegal actions and rarely/never face repercussions. This emboldens them to further do more illegal things. Meanwhile, the courts take months or years to reach decisions (especially regarding technology) and in the passing time the practice becomes normalized [1] or already the damage is done. Perhaps in that time new technological paradigms create fuzzier muddier waters and the same crimes "can" continue "legally" while the courts decide, yet again. It is a flaw in our current system. It is most obvious at the federal level, where the President and many Republicans routinely break laws in obvious manners, while the courts fight it out for years. [1] Some of our laws are based on what is 'normal'. So after some years of a practice taking place clearly illegally, it can become to be seen as 'normal' by society and therefore legalized de facto. For example "cruel and unusual punishment" does not outlaw the death penalty because it already exists and is sufficiently common to not count as unusual.

giggles_giggles 7y ago
>the President and many Republicans routinely break laws in obvious manners Can you link to some citations regarding this? If one of our political parties and our elected officials are brazenly breaking the law I'd sure like to know about it!
- spaceheretostay 7y ago
  The redacted Mueller report does a good job getting started on a well-researched list of crimes committed by the President and various fellow Republicans. You can find it all over the web. If it is too long and dense and you wish a summary, many reputable lawyers and journalists have written down their understanding of the laws broken, the context and their intents. There are many more than listed in the Mueller report but it's a good start. It is hard to read your comment in good faith however, as I assume it is likely you already knew about this detailed list of the President's crimes if you truly "sure would like to know about it!" Edit: By popular demand, here is a direct link to justice.gov for the redacted Mueller report. https://www.justice.gov/storage/report.pdf https://www.justice.gov/storage/report.pdf

jasonjayr 7y ago

The "Third Party Doctrine" https://en.wikipedia.org/wiki/Third-party_doctrine https://en.wikipedia.org/wiki/Third-party_doctrine Everyone storing data in "the cloud" is also at risk, the cloud provider can voluntarily hand data to law enforcement at their discretion. IIRC this also comes into play when your email messages are hosted on a 3rd party server that you do not own.

deleted 7y ago
[deleted]
rgbrenner 7y ago
Cloud data and email are protected by the Electronic Communications Privacy Act: https://en.wikipedia.org/wiki/Electronic_Communications_Privacy_Act https://en.wikipedia.org/wiki/Electronic_Communications_Priv... Under the ECPA they need to obtain a warrant for email and other cloud storage services, unless it's older than 180 days... then it's considered "abandoned". There's been some effort to remove the 180 day limit.. some states have laws that protect older data + the 6th circuit already extended it past 180 days in US v Warshark.. but we need a national law like the Email Privacy Act that the House passed last year (but the senate didn't): https://www.natlawreview.com/article/house-judiciary-committee-approves-email-privacy-act https://www.natlawreview.com/article/house-judiciary-committ... https://en.wikipedia.org/wiki/Email_Privacy_Act https://en.wikipedia.org/wiki/Email_Privacy_Act
- samstave 7y ago
  Fun fact: some major coporations have a defacto policy to auto delete all emails older than 180 days. Period. This alows them to bot have those emails available to government spying as a writ. One company who does this is lockheed. Basically if you are a defense contractor - you do this.
  - matt4077 7y ago
    Fun fact: this is bullshit. Large companies, especially public ones and those doing business with the government, follow different sets of rules specifying retention times. For anything that has an impact on accounting, the minimum is usually 5 years. If you’re trying to get an FAA approval for anything that flies, it’s much longer. Bonus: the 180 days mentioned above is for third party service providers as the cutoff of considering information to be “in transit”. Is has absolutely no bearing on in-house systems which have first-party protection.

deleted 7y ago

[deleted]