• A Supreme Court case this week could change US digital privacy standards
    13 replies, posted
[quote]You wouldn’t leave home without your smartphone. It gets you everywhere you need to go, and keeps you connected. But, by pinging nearby cellphone towers, it’s also leaving a trail of digital breadcrumbs that the government can follow. This location data tells a story about where you’ve used your phone. Whether that story is protected by the Fourth Amendment of the US Constitution, which prohibits unreasonable searches and seizures by the government, is a question now before the US Supreme Court. On Nov. 29, the justices will hear oral arguments in Carpenter v. US (pdf), a case essentially asking whether or not authorities need a warrant based on probable cause and signed by a judge to see your cellphone location data. For now, they do not. Mobile-service providers collect “cell site location information” (CSLI) for all phones, ostensibly to use for things like improving their networks. The US government considers these data “routinely collected business records” rather than private information. That means it can demand the records without proving probable cause. That’s what happened in the criminal case of Timothy Carpenter, accused of a series of Detroit, Michigan robberies. At Carpenter’s trial, prosecutors presented evidence collected by private companies, obtained by the law without probable cause. They used 127 days-worth of cellphone-location data, amounting to almost 13,000 data points, to tell a circumstantial story of Carpenter comings and goings. In its brief to the high court, filed in September, the justice department argued that when Carpenter signed onto his cell-phone provider’s service, he agreed that his call records weren’t private information belonging to him, but rather business records belonging to the company. Therefore, he should have “no reasonable expectation of privacy” when it comes to these records, government attorneys wrote. Carpenter argues that the location evidence was obtained illegally. The Sixth Circuit Court of Appeals denied that claim last year, basing their decision on Supreme Court cases from the 1970s: Smith v. Maryland and US v. Miller. The appeals court concluded that, under what’s called the “third-party doctrine,” Americans don’t have a reasonable expectation of privacy in things like check deposit slips, similar banking records, and dialed telephone numbers. Carpenter appealed. “Tracing a person’s geographical movements reveals highly sensitive personal information, and prior to the digital age, people reasonably expected that police in most investigations would not have followed a person and recorded her every movement for days or weeks on end,” Carpenter’s attorneys at the American Civil Liberties Union wrote in their August appeal to the Supreme Court (pdf). The high court agreed this past July to hear the appeal, and to consider whether this age demands a new, more nuanced approach to data privacy questions. Carpenter’s attorneys liken cumulative location-data collection to long-term GPS tracking. Cops can’t just attach a GPS to a car and secretly track a suspect without probable cause, based on US v. Jones, a 2012 Supreme Court case. The same standard should apply to CSLI, they write: “When the government employs new technology to obtain sensitive personal information in a way that diminishes the degree of privacy that individuals reasonably expected prior to the technology’s adoption, it conducts a search under the Fourth Amendment.”[/quote] This is extremely important. I highly reccomend reading the whole article. [url]https://qz.com/1138830/a-supreme-court-case-this-week-could-change-us-digital-privacy-standards/[/url]
Im betting gorsich breaks modern conservative, says police can do what they want, justifies it through originalism "well congress never forbid this..." and sneaks in something about legislating from the bench. he's got big jittery slippers to fill after all. roberts might flip as older conservative doctrines are appalled by the government overreach [editline]28th November 2017[/editline] honestly i wish they would do something about mass collection of licens plate data by private unregulated firms, police have to delete non hits but the private sector gets to amass massive poorly secured databases that they then sell back to law enforcement and its just about as good as gps tracking if not better since it doesn't require any warants and every cruser and bounty hunter has a license plate scanner on them now
[QUOTE=Sableye;52929761]Im betting gorsich breaks modern conservative, says police can do what they want, justifies it through originalism "well congress never forbid this..." and sneaks in something about legislating from the bench. he's got big jittery slippers to fill after all.[/QUOTE] Man I hope not, otherwise we'll start having dogs as senators.
The scope of this will still probably only apply to location-based gathering. But the precedent it will set for future cases is what's important here. If [I]Carpenter[/I] wins out then we could definitely see a [B]lot[/B] more cases like these pop up in the very near future. However, that said, I don't think this will alleviate the problems associated with intelligence agencies (i.e. NSA mass-data collection) who circumvent all of the legal BS through FISA which will continue to allow them to gather this information. I also don't think the private sector at large will be too hurt by this either considering the companies that are backing [I]Carpenter[/I]. When all's said and done I think it's a massive step forward for law enforcement agencies as a whole, but this case only represents a small piece of a much larger puzzle that still needs to be solved.
CSLI goes private E911 is going to be completely fucked and ineffective.
I've been reading a lot about this lately, really interested to see what the decision ends up being. We've had some country-shaking supreme court decisions and either way this one goes it'll probably end up being one. [quote]Technology companies, like Apple, Amazon, Facebook, Google, Twitter, Verizon and many others joined in [URL="http://www.scotusblog.com/wp-content/uploads/2017/09/16-402-bs-US.pdf"]an amicus curiae brief[/URL] supporting Carpenter and arguing that even “non-content data” like location should be private, and protected by the constitution.[/quote] It's nice to hear a lot of them on our side.
[QUOTE=Code3Response;52931383]CSLI goes private E911 is going to be completely fucked and ineffective.[/QUOTE] They can carve out an exception for public safety like 911, after all the government already has an exception that lets them coopt devices to broadcast public safety information like amber alerts [editline]28th November 2017[/editline] [QUOTE=WitheredGryphon;52931213]The scope of this will still probably only apply to location-based gathering. But the precedent it will set for future cases is what's important here. If [I]Carpenter[/I] wins out then we could definitely see a [B]lot[/B] more cases like these pop up in the very near future. However, that said, I don't think this will alleviate the problems associated with intelligence agencies (i.e. NSA mass-data collection) who circumvent all of the legal BS through FISA which will continue to allow them to gather this information. I also don't think the private sector at large will be too hurt by this either considering the companies that are backing [I]Carpenter[/I]. When all's said and done I think it's a massive step forward for law enforcement agencies as a whole, but this case only represents a small piece of a much larger puzzle that still needs to be solved.[/QUOTE] the best thing they could say is reverse their long held belief that there is no expectation of privacy in the public when it comes to digital information, this is the linchpin that's been used to justify all this crap like stingers and whatnot for years and the lower courts are starting to change that.
[QUOTE=Lambeth;52930634]Man I hope not, otherwise we'll start having dogs as senators.[/QUOTE] To be fair, dogs would be better than half of our senators.
[QUOTE=Sableye;52929761]Im betting gorsich breaks modern conservative, says police can do what they want, justifies it through originalism "well congress never forbid this..." and sneaks in something about legislating from the bench. he's got big jittery slippers to fill after all. roberts might flip as older conservative doctrines are appalled by the government overreach [editline]28th November 2017[/editline] honestly i wish they would do something about mass collection of licens plate data by private unregulated firms, police have to delete non hits but the private sector gets to amass massive poorly secured databases that they then sell back to law enforcement and its just about as good as gps tracking if not better since it doesn't require any warants and every cruser and bounty hunter has a license plate scanner on them now[/QUOTE] Actually Gorsuch is a known originalist. So that's pretty much exactly what's going to happen.
[QUOTE=Sableye;52929761]Im betting gorsich breaks modern conservative, says police can do what they want, justifies it through originalism "well congress never forbid this..." and sneaks in something about legislating from the bench. he's got big jittery slippers to fill after all. roberts might flip as older conservative doctrines are appalled by the government overreach [editline]28th November 2017[/editline] honestly i wish they would do something about mass collection of licens plate data by private unregulated firms, police have to delete non hits but the private sector gets to amass massive poorly secured databases that they then sell back to law enforcement and its just about as good as gps tracking if not better since it doesn't require any warants and every cruser and bounty hunter has a license plate scanner on them now[/QUOTE] A license plate on a public road is completely public information though. The same thing applies to recording people in public. A phone transmitting data without your knowledge is not. It's a fairly important distinction.
[QUOTE=Sableye;52931404]They can carve out an exception for public safety like 911, after all the government already has an exception that lets them coopt devices to broadcast public safety information like amber alerts [editline]28th November 2017[/editline] the best thing they could say is reverse their long held belief that there is no expectation of privacy in the public when it comes to digital information, this is the linchpin that's been used to justify all this crap like stingers and whatnot for years and the lower courts are starting to change that.[/QUOTE] I'm curious, do you know any prominent cases to read up on or basic secondary sources on the topic? Seem p. knowledgeable and this seems like an interesting topic to use to procrastinate instead of actually studying for my civil procedure exam.
[QUOTE=ForcedDj;52931832]To be fair, dogs would be better than [B]ANY[/B] of our senators.[/QUOTE] Fixed :dog:
[QUOTE=WitheredGryphon;52931213]The scope of this will still probably only apply to location-based gathering. But the precedent it will set for future cases is what's important here. If [I]Carpenter[/I] wins out then we could definitely see a [B]lot[/B] more cases like these pop up in the very near future. However, that said, I don't think this will alleviate the problems associated with intelligence agencies (i.e. NSA mass-data collection) who circumvent all of the legal BS through FISA which will continue to allow them to gather this information. I also don't think the private sector at large will be too hurt by this either considering the companies that are backing [I]Carpenter[/I]. When all's said and done I think it's a massive step forward for law enforcement agencies as a whole, but this case only represents a small piece of a much larger puzzle that still needs to be solved.[/QUOTE] There is a little-publicized case, [I]Dahda v. US[/I], coming up on the docket as a pseudo-corollary to this case as to whether actual data gathering of mobile phones can be authorized by any federal judge (as opposed to a judge with personal jurisdiction over the suspect). Stingrays are a big deal right now but [I]Dahda[/I] is kind of the hidden kicker for me. Unfortunately, SCOTUS isn't tackling the whole issue. Short laymen's summary: in 1986, Congress introduced a jurisdictional exception for "mobile interception devices" so that if a mobile phone was moved out of a jurisdiction, a wiretap warrant wouldn't have become invalid. In 1997, the Seventh Circuit held that a "mobile interception device" was a device which intercepted mobile phone communications, so any device - including a stationary one - which intercepted mobile phone communications could be authorized and operated in a jurisdiction anywhere in the US. The problem - the 1986 amendment also added data communications to wiretaps, so this exception meant that, in essence, law enforcement could now monitor voice, texts, and data on any phone in the US as authorized by any judge in the US regardless of jurisdiction. Naturally this introduces some issues. For example, the NYPD could get a warrant from a friendly judge in NY and get all data from a phone in CA owned by someone who has never so much as step foot in NY. In 2017, the Tenth Circuit switched this around in [I]Dahda[/I], holding that a "mobile interception device" was a device which was mobile - such as a Stingray - which introduces some procedural inefficiency that deters law enforcement from this kind of extreme overreach. The NYPD would need to actually travel to CA with a Stingray, which it can't really do en masse from the comfort of its desks. But the Tenth Circuit declined to act on the overreach that actually occurred under its definition because of a weird statutory quirk regarding what happens when the wiretap is invalid. Unfortunately, SCOTUS is ruling on the quirk, not the language of the exception. Right now, though, we're riding the waves of the NSA leaks, among other things, that are taking the spotlight. But you can rest assured that as smartphones gain more traction and privacy law gets tighter, the old "mobile interception device" exception interpretation is bound to be abused. Why would the NSA need FISA courts when it can just call up any old federal judge and accomplish the same thing? It gives the power of PRISM to any Joe Blow detective. Unfortunately [b]literally nobody[/b] is talking about this. Not even any legal scholar articles. Very strange.
[QUOTE=Snowmew;52937082]There is a little-publicized case, [I]Dahda v. US[/I], coming up on the docket as a pseudo-corollary to this case as to whether actual data gathering of mobile phones can be authorized by any federal judge (as opposed to a judge with personal jurisdiction over the suspect). Stingrays are a big deal right now but [I]Dahda[/I] is kind of the hidden kicker for me. Unfortunately, SCOTUS isn't tackling the whole issue. Short laymen's summary: in 1986, Congress introduced a jurisdictional exception for "mobile interception devices" so that if a mobile phone was moved out of a jurisdiction, a wiretap warrant wouldn't have become invalid. In 1997, the Seventh Circuit held that a "mobile interception device" was a device which intercepted mobile phone communications, so any device - including a stationary one - which intercepted mobile phone communications could be authorized and operated in a jurisdiction anywhere in the US. The problem - the 1986 amendment also added data communications to wiretaps, so this exception meant that, in essence, law enforcement could now monitor voice, texts, and data on any phone in the US as authorized by any judge in the US regardless of jurisdiction. Naturally this introduces some issues. For example, the NYPD could get a warrant from a friendly judge in NY and get all data from a phone in CA owned by someone who has never so much as step foot in NY. In 2017, the Tenth Circuit switched this around in [I]Dahda[/I], holding that a "mobile interception device" was a device which was mobile - such as a Stingray - which introduces some procedural inefficiency that deters law enforcement from this kind of extreme overreach. The NYPD would need to actually travel to CA with a Stingray, which it can't really do en masse from the comfort of its desks. But the Tenth Circuit declined to act on the overreach that actually occurred under its definition because of a weird statutory quirk regarding what happens when the wiretap is invalid. Unfortunately, SCOTUS is ruling on the quirk, not the language of the exception. Right now, though, we're riding the waves of the NSA leaks, among other things, that are taking the spotlight. But you can rest assured that as smartphones gain more traction and privacy law gets tighter, the old "mobile interception device" exception interpretation is bound to be abused. Why would the NSA need FISA courts when it can just call up any old federal judge and accomplish the same thing? It gives the power of PRISM to any Joe Blow detective. Unfortunately [b]literally nobody[/b] is talking about this. Not even any legal scholar articles. Very strange.[/QUOTE] Wow, that's actually the first time I've heard of this. It sounds like the quirk was created to prevent stuff like this from happening: [quote="Case Description"]Prior to trial, the Dahdas brothers moved to suppress the information obtained from the wiretaps on the grounds that the wiretap orders exceeded the district court's territorial jurisdiction.[/quote] The ruling for which would mean that any and all evidence obtained from wiretaps outside the judges' jurisdictions are rendered null in court. You're right though, judging from the question being presented in the case, they're ruling on Dahda's specific situation and not the circumstances that allowed it in the first place. That's...really odd that that exists in the first place, I'm surprised this hasn't been addressed in decades. Hopefully a separate case ruling on that particular allowance of wiretaps outside of jurisdictions receives a proper investigation sooner rather than later though.
Sorry, you need to Log In to post a reply to this thread.