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Tracking Big Foot: Why GPS Location Requires a Warrant | Center for Democracy & Technology

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In a case that raises as many questions as the average sighting of Big Foot, a panel of the Sixth Circuit Court of Appeals ruled earlier this week that law enforcement officers didn’t need a warrant to obtain GPS location information generated by his cell phone.

The court’s analysis has been roundly criticized as legally incorrect, lazy, shallow, and vague. I’d like to focus on one aspect of the case that the court missed:  the Department of Justice recommends that police obtain warrants in the scenario presented by this case, does so for good reason, and there were sufficient facts for the government to obtain the warrant that the Department of Justice recommends investigators obtain.

In this case, U.S. v. Skinner law enforcement officers obtained an order that allowed them to monitor for 60 days the location of a pre-paid cell phone they had good cause to believe was being used by Big Foot, the nickname given trucker eventually identified as Melvin Skinner, who they alleged was transporting marijuana.  They obtained a court order under which the provider, Sprint/Nextel, acting at the behest of law enforcement, pinged the phone repeatedly so it would reveal its location over a three-day period and eventually activated the phone’s GPS functionality to locate the phone’s GPS coordinates.   (Sprint/Nextel recently developed a web portal through which law enforcement can do this automatically for the duration of the court authorization, without contacting the provider each time officers ping the phone.)

The court found that there was “… no Fourth Amendment violation because Skinner did not have a reasonable expectation of privacy in the data given off by his voluntarily procured … cell phone.”  But, as Jennifer Grannick points out cell phones don’t normally “give off” the kind of GPS location data that law enforcement used to locate Skinner.  Unless the user is employing location services – and Skinner wasn’t – the GPS location data has to be created.  In this case, the provider, under court order, remotely activated the GPS function of Skinner’s phone so the police could track him.

There’s a critical difference between GPS location information and cell tower location information a mobile phone creates during normal use.  The GPS data in this case is created at the request of law enforcement for tracking purposes and not through the normal use of the mobile phone. The GPS data doesn’t even exist until the provider prompts the device to deliver its GPS location to the provider so law enforcement can access it.  In contrast, providers maintain cell tower location information for business reasons.  Because providers do not normally maintain GPS location information and because it was not voluntarily conveyed to the provider, it is not a “business record” and does not fit into the third party records doctrine, which says that a person has no Fourth Amendment interest in information that is voluntarily revealed to, and held by, a third party.  While the third party doctrine should probably be re-examined, for now we have to live with it, but not for GPS data created by providers at the behest of law enforcement.  For that data, we retain our Fourth Amendment rights against warrantless GPS tracking.  

Blind Eye to Justice

Apparently recognizing that GPS is different, the Justice Department recommends that prosecutors obtain a warrant to get GPS location information from mobile communications service providers.  For example, in this power point presentation the Associate Director of the Justice Department Office of Enforcement Operations recommends that prosecutors use search warrants to get prospective GPS location information (referred to as “lat/long data” or latitudinal and longitudinal data) for constitutional, not statutory reasons, and because “anything less presents significant risks of suppression.”  In addition, the Justice Department Associate Deputy Attorney General, testified in April last year that when the government seeks to compel disclosure of prospective GPS coordinates generated by cell phones, it relies on a warrant.

The Sixth Circuit missed this point entirely.  It blithely rejected Skinner’s Fourth Amendment claims and implicitly bought into the government’s argument that orders under the Stored Communications Act provision at 18 USC 2703(d) can be used to obtain prospective location information that has never been stored.  It did not consider whether the information sought was within the third party records doctrine and it cited no statutory authority for the proposition that the government can compel a provider to create the GPS information for the government to seize.  

Perhaps most ironically, it seems pretty clear that the government had facts establishing probable cause and could have obtained a warrant if it had applied for one.  As the concurring opinion in Skinner noted, law enforcement officials were watching the drug operation for months, had recorded conversations about an upcoming drug run, learned that the courier was carrying a particular phone that they could track, and that a half ton of marijuana was in transit.  

A warrant requirement for location information, as advocated by the Digital Due Process coalition, would still mean a drug courier like Skinner would get caught.  If followed, a statutory warrant requirement decreases the chances a criminal would elude jail because the seized evidence would not be at risk of suppression, as it is now for Big Foot if he appeals this decision. 

For updates, follow us on Twitter at @CenDemTech.

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Tracking Big Foot: Why GPS Location Requires a Warrant

‘Safe Data’ Strategies for Health Info on Mobile Devices

Better Policies for De-Identified Health Data

Buliding Public Trust in De-Identified Health Data

Tracking Big Foot: Why GPS Location Requires a Warrant

Better Policies for De-Identified Health Data

‘Safe Data’ Strategies for Health Info on Mobile Devices

Buliding Public Trust in De-Identified Health Data

Copyright © 2012 by Center for Democracy & Technology.

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https://www.cdt.org/blogs/greg-nojeim/1708tracking-big-foot-why-gps-location-…

Tracking Big Foot: Why GPS Location Requires a Warrant | Center for Democracy & Technology

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Filed under Security & Surveillance, More Issues in Security & Surveillance
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In a case that raises as many questions as the average sighting of Big Foot, a panel of the Sixth Circuit Court of Appeals ruled earlier this week that law enforcement officers didn’t need a warrant to obtain GPS location information generated by his cell phone.

The court’s analysis has been roundly criticized as legally incorrect, lazy, shallow, and vague. I’d like to focus on one aspect of the case that the court missed:  the Department of Justice recommends that police obtain warrants in the scenario presented by this case, does so for good reason, and there were sufficient facts for the government to obtain the warrant that the Department of Justice recommends investigators obtain.

In this case, U.S. v. Skinner law enforcement officers obtained an order that allowed them to monitor for 60 days the location of a pre-paid cell phone they had good cause to believe was being used by Big Foot, the nickname given trucker eventually identified as Melvin Skinner, who they alleged was transporting marijuana.  They obtained a court order under which the provider, Sprint/Nextel, acting at the behest of law enforcement, pinged the phone repeatedly so it would reveal its location over a three-day period and eventually activated the phone’s GPS functionality to locate the phone’s GPS coordinates.   (Sprint/Nextel recently developed a web portal through which law enforcement can do this automatically for the duration of the court authorization, without contacting the provider each time officers ping the phone.)

The court found that there was “… no Fourth Amendment violation because Skinner did not have a reasonable expectation of privacy in the data given off by his voluntarily procured … cell phone.”  But, as Jennifer Grannick points out cell phones don’t normally “give off” the kind of GPS location data that law enforcement used to locate Skinner.  Unless the user is employing location services – and Skinner wasn’t – the GPS location data has to be created.  In this case, the provider, under court order, remotely activated the GPS function of Skinner’s phone so the police could track him.

There’s a critical difference between GPS location information and cell tower location information a mobile phone creates during normal use.  The GPS data in this case is created at the request of law enforcement for tracking purposes and not through the normal use of the mobile phone. The GPS data doesn’t even exist until the provider prompts the device to deliver its GPS location to the provider so law enforcement can access it.  In contrast, providers maintain cell tower location information for business reasons.  Because providers do not normally maintain GPS location information and because it was not voluntarily conveyed to the provider, it is not a “business record” and does not fit into the third party records doctrine, which says that a person has no Fourth Amendment interest in information that is voluntarily revealed to, and held by, a third party.  While the third party doctrine should probably be re-examined, for now we have to live with it, but not for GPS data created by providers at the behest of law enforcement.  For that data, we retain our Fourth Amendment rights against warrantless GPS tracking.  

Blind Eye to Justice

Apparently recognizing that GPS is different, the Justice Department recommends that prosecutors obtain a warrant to get GPS location information from mobile communications service providers.  For example, in this power point presentation the Associate Director of the Justice Department Office of Enforcement Operations recommends that prosecutors use search warrants to get prospective GPS location information (referred to as “lat/long data” or latitudinal and longitudinal data) for constitutional, not statutory reasons, and because “anything less presents significant risks of suppression.”  In addition, the Justice Department Associate Deputy Attorney General, testified in April last year that when the government seeks to compel disclosure of prospective GPS coordinates generated by cell phones, it relies on a warrant.

The Sixth Circuit missed this point entirely.  It blithely rejected Skinner’s Fourth Amendment claims and implicitly bought into the government’s argument that orders under the Stored Communications Act provision at 18 USC 2703(d) can be used to obtain prospective location information that has never been stored.  It did not consider whether the information sought was within the third party records doctrine and it cited no statutory authority for the proposition that the government can compel a provider to create the GPS information for the government to seize.  

Perhaps most ironically, it seems pretty clear that the government had facts establishing probable cause and could have obtained a warrant if it had applied for one.  As the concurring opinion in Skinner noted, law enforcement officials were watching the drug operation for months, had recorded conversations about an upcoming drug run, learned that the courier was carrying a particular phone that they could track, and that a half ton of marijuana was in transit.  

A warrant requirement for location information, as advocated by the Digital Due Process coalition, would still mean a drug courier like Skinner would get caught.  If followed, a statutory warrant requirement decreases the chances a criminal would elude jail because the seized evidence would not be at risk of suppression, as it is now for Big Foot if he appeals this decision. 

For updates, follow us on Twitter at @CenDemTech.

Issues

Related Posts

It Takes a Village to Defend a Network
Defending networks from malicious hacking exploits depends in large part on the voluntary, cooperative efforts of network operators, device makers, and Internet users.Today the Broadband Internet Technical Advisory Group (BITAG) — a group of technical experts dedicated to building consensus about broadband network management — has released a series of targeted, balanced recommendations to help stifle an emerging type of network attack. That attack has been used in recent years by the hacker…

Cybersecurity Amendments Would Modernize 25-Year-Old Privacy Law
[Editors Note: This is one in a of series of blog posts from CDT on the Cybersecurity Act, S. 3414, a bill co-sponsored by Senators Lieberman and Collins that is slated to be considered on the Senate floor soon.]Two amendments to the Senate cybersecurity bill now being debated would require government agents to get a warrant before reading a person’s email or secretly tracking someone through their mobile phone.  The amendments, if adopted, would be a huge privacy gain and address a long-…

What’s Wrong With the Third Party Doctrine and Einstein 3.0
In a new book, CDT experts debate some of the most pressing issues in surveillance law today.Patriot Debates: Contemporary Issues in National Security Law features CDT’s Greg Nojeim in a debate on the third-party records doctrine and its application to criminal investigations in the digital age. The doctrine holds that law enforcement does not need a warrant to search and seize information lawfully held by third parties, such as online file hosting services like Dropbox or online email…

Why Fibbing About Your Age Is Relevant to the Cybersecurity Bill
[Editors Note: This is one in a of series of blog posts from CDT on the Cybersecurity Act, S. 3414, a bill co-sponsored by Senators Lieberman and Collins that is slated to be considered on the Senate floor soon.]  

Congress is about to decide whether it is a crime to violate terms of service governing your use of Gmail, Facebook, Hulu, or any other on-line service.

One of the amendments to the Cybersecurity Act that the Senate is likely to take up this week would substantially increase…

Tracking Big Foot: Why GPS Location Requires a Warrant

‘Safe Data’ Strategies for Health Info on Mobile Devices

Better Policies for De-Identified Health Data

Buliding Public Trust in De-Identified Health Data

Tracking Big Foot: Why GPS Location Requires a Warrant

Better Policies for De-Identified Health Data

‘Safe Data’ Strategies for Health Info on Mobile Devices

Buliding Public Trust in De-Identified Health Data

Copyright © 2012 by Center for Democracy & Technology.

via cdt.org

https://www.cdt.org/blogs/greg-nojeim/1708tracking-big-foot-why-gps-location-…

‘Safe Data’ Strategies for Health Info on Mobile Devices | Center for Democracy & Technology

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Consumer use of mobile technologies to stay healthy or manage a chronic health condition is increasing; likewise, an increasing number are using these technologies as a digital link to their doctors.  Yet, unlike health care providers who must follow federal privacy and security rules when using mobile technologies to share a patient’s health information, no such rules apply to consumers or their devices.

Building and maintaining consumer and patient trust in the use of mobile devices is key to delivering on the promise that these mobile tools can bring to improving patient care.  And a key to cultivating that trust is building basic security safeguards into those devices.
 
CDT teamed up with the law firm of Manatt, Phelps & Phillips LLP to develop “Strategies for Safeguarding Patient-Generated Health Information Created or Shared Through Mobile Devices.”1 The paper comes from CDT and Manatt’s work with the Robert Wood Johnson Foundation’s Project HealthDesign, which is exploring patients’ use of personal health applications to promote better health decision-making by both patients and providers.

The paper discusses what factors should be considered when protecting patient-generated health information created on or shared through mobile devices, including:

•    The complexity and cost of the security measure;
•    The ability (or willingness) of the patient or consumer to deploy the security measure;
•    The effect the security measure will have on the health or health care management; and
•    The probability of potential risks to the information, and the potential consequences of a breach of information.

The paper also recommends specific strategies for securing information on patient mobile devices; such strategies include providing patients with clear information on privacy and security risks and providing them with technical tools to help them manage those risks.

  1. 1. The article was originally published in the Journal of Health Information Management (JHIM), vol. 26, no. 3, by the Health Information Management Systems Society.
For updates, follow us on Twitter at @CenDemTech.
via cdt.org

https://www.cdt.org/blogs/deven-mcgraw/1608safe-data-strategies-health-info-m…

‘Safe Data’ Strategies for Health Info on Mobile Devices | Center for Democracy & Technology

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iled under Health Privacy, Personal Health Records
Tags:

Consumer use of mobile technologies to stay healthy or manage a chronic health condition is increasing; likewise, an increasing number are using these technologies as a digital link to their doctors.  Yet, unlike health care providers who must follow federal privacy and security rules when using mobile technologies to share a patient’s health information, no such rules apply to consumers or their devices.

Building and maintaining consumer and patient trust in the use of mobile devices is key to delivering on the promise that these mobile tools can bring to improving patient care.  And a key to cultivating that trust is building basic security safeguards into those devices.
 
CDT teamed up with the law firm of Manatt, Phelps & Phillips LLP to develop “Strategies for Safeguarding Patient-Generated Health Information Created or Shared Through Mobile Devices.”1 The paper comes from CDT and Manatt’s work with the Robert Wood Johnson Foundation’s Project HealthDesign, which is exploring patients’ use of personal health applications to promote better health decision-making by both patients and providers.

The paper discusses what factors should be considered when protecting patient-generated health information created on or shared through mobile devices, including:

•    The complexity and cost of the security measure;
•    The ability (or willingness) of the patient or consumer to deploy the security measure;
•    The effect the security measure will have on the health or health care management; and
•    The probability of potential risks to the information, and the potential consequences of a breach of information.

The paper also recommends specific strategies for securing information on patient mobile devices; such strategies include providing patients with clear information on privacy and security risks and providing them with technical tools to help them manage those risks.

  1. 1. The article was originally published in the Journal of Health Information Management (JHIM), vol. 26, no. 3, by the Health Information Management Systems Society.
For updates, follow us on Twitter at @CenDemTech.
via cdt.org

https://www.cdt.org/blogs/deven-mcgraw/1608safe-data-strategies-health-info-m…

Tracking Big Foot: Why GPS Location Requires a Warrant

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Tracking Big Foot: Why GPS Location Requires a Warrant

by Greg Nojeim [1]
August 17, 2012

In a case that raises as many questions as the average sighting of Big Foot, a panel of the Sixth Circuit Court of Appeals ruled earlier this week that law enforcement officers didn’t need a warrant to obtain GPS location information generated by his cell phone.

The court’s analysis has been roundly criticized as legally incorrect [2], lazy [3], shallow [4], and vague [5]. I’d like to focus on one aspect of the case that the court missed:  the Department of Justice recommends that police obtain warrants in the scenario presented by this case, does so for good reason, and there were sufficient facts for the government to obtain the warrant that the Department of Justice recommends investigators obtain.

In this case, U.S. v. Skinner [6] law enforcement officers obtained an order [7] that allowed them to monitor for 60 days the location of a pre-paid cell phone they had good cause to believe was being used by Big Foot, the nickname given trucker eventually identified as Melvin Skinner, who they alleged was transporting marijuana.  They obtained a court order under which the provider, Sprint/Nextel, acting at the behest of law enforcement, pinged the phone repeatedly so it would reveal its location over a three-day period and eventually activated the phone’s GPS functionality to locate the phone’s GPS coordinates.   (Sprint/Nextel recently developed a web portal [8] through which law enforcement can do this automatically for the duration of the court authorization, without contacting the provider each time officers ping the phone.)

The court found that there was “… no Fourth Amendment violation because Skinner did not have a reasonable expectation of privacy in the data given off by his voluntarily procured … cell phone.”  But, as Jennifer Grannick points out [9] cell phones don’t normally “give off” the kind of GPS location data that law enforcement used to locate Skinner.  Unless the user is employing location services – and Skinner wasn’t – the GPS location data has to be created.  In this case, the provider, under court order, remotely activated the GPS function of Skinner’s phone so the police could track him.

There’s a critical difference between GPS location information and cell tower location information a mobile phone creates during normal use.  The GPS data in this case is created at the request of law enforcement for tracking purposes and not through the normal use of the mobile phone. The GPS data doesn’t even exist until the provider prompts the device to deliver its GPS location to the provider so law enforcement can access it.  In contrast, providers maintain cell tower location information for business reasons.  Because providers do not normally maintain GPS location information and because it was not voluntarily conveyed to the provider, it is not a “business record” and does not fit into the third party records doctrine, which says that a person has no Fourth Amendment interest in information that is voluntarily revealed to, and held by, a third party.  While the third party doctrine should probably be re-examined [10], for now we have to live with it, but not for GPS data created by providers at the behest of law enforcement.  For that data, we retain our Fourth Amendment rights against warrantless GPS tracking.  

Blind Eye to Justice

Apparently recognizing that GPS is different, the Justice Department recommends that prosecutors obtain a warrant to get GPS location information from mobile communications service providers.  For example, in this power point presentation [11] the Associate Director of the Justice Department Office of Enforcement Operations recommends that prosecutors use search warrants to get prospective GPS location information (referred to as “lat/long data” or latitudinal and longitudinal data) for constitutional, not statutory reasons, and because “anything less presents significant risks of suppression.”  In addition, the Justice Department Associate Deputy Attorney General, testified [12] in April last year that when the government seeks to compel disclosure of prospective GPS coordinates generated by cell phones, it relies on a warrant.

The Sixth Circuit missed this point entirely.  It blithely rejected Skinner’s Fourth Amendment claims and implicitly bought into the government’s argument that orders under the Stored Communications Act provision at 18 USC 2703(d) can be used to obtain prospective location information that has never been stored.  It did not consider whether the information sought was within the third party records doctrine and it cited no statutory authority for the proposition that the government can compel a provider to create the GPS information for the government to seize.  

Perhaps most ironically, it seems pretty clear that the government had facts [7] establishing probable cause and could have obtained a warrant if it had applied for one.  As the concurring opinion in Skinner noted, law enforcement officials were watching the drug operation for months, had recorded conversations about an upcoming drug run, learned that the courier was carrying a particular phone that they could track, and that a half ton of marijuana was in transit.  

A warrant requirement for location information, as advocated by the Digital Due Process coalition [13], would still mean a drug courier like Skinner would get caught.  If followed, a statutory warrant requirement decreases the chances a criminal would elude jail because the seized evidence would not be at risk of suppression, as it is now for Big Foot if he appeals this decision. 

For updates, follow us on Twitter at @CenDemTech [14].

Copyright © 2012 by Center for Democracy & Technology.

The content throughout this website that originates with CDT can be freely copied and used as long as you make no substantive changes and clearly give us credit. Details.

Source URL: https://www.cdt.org/blogs/greg-nojeim/1708tracking-big-foot-why-gps-location-requires-warrant

Links:
[1] https://www.cdt.org/personnel/greg-nojeim
[2] http://www.aclu.org/node/36123
[3] http://www.cato-at-liberty.org/skinning-the-fourth-amendment-the-sixth-circui…
[4] https://www.eff.org/deeplinks/2012/08/to-make-sure-criminals-get-no-location-…
[5] http://www.volokh.com/2012/08/14/sixth-circuit-rules-that-pinging-a-cell-phon…
[6] http://www.ca6.uscourts.gov/opinions.pdf/12a0262p-06.pdf
[7] https://docs.google.com/a/cdt.org/file/d/1gr1bscSXqb7pXfIi7GXaM5Ywg5sUg-hblBe…
[8] http://www.wired.com/threatlevel/2009/12/gps-data/
[9] http://cyberlaw.stanford.edu/blog/2012/08/updated-sixth-circuit-cell-tracking….UCsknnDKN1U.twitter
[10] http://www.abajournal.com/magazine/article/the_data_question_should_the_third…
[11] http://www.aclu.org/pdfs/freespeech/18cellfoia_release_CRM-200800622F_0601200…
[12] http://www.judiciary.senate.gov/pdf/11-4-6%20Baker%20Testimony.pdf
[13] http://www.digitaldueprocess.org
[14] https://twitter.com/#%21/CenDemTech

via cdt.org

https://www.cdt.org/print/19546

Tracking Big Foot: Why GPS Location Requires a Warrant

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Tracking Big Foot: Why GPS Location Requires a Warrant

by Greg Nojeim [1]
August 17, 2012

In a case that raises as many questions as the average sighting of Big Foot, a panel of the Sixth Circuit Court of Appeals ruled earlier this week that law enforcement officers didn’t need a warrant to obtain GPS location information generated by his cell phone.

The court’s analysis has been roundly criticized as legally incorrect [2], lazy [3], shallow [4], and vague [5]. I’d like to focus on one aspect of the case that the court missed:  the Department of Justice recommends that police obtain warrants in the scenario presented by this case, does so for good reason, and there were sufficient facts for the government to obtain the warrant that the Department of Justice recommends investigators obtain.

In this case, U.S. v. Skinner [6] law enforcement officers obtained an order [7] that allowed them to monitor for 60 days the location of a pre-paid cell phone they had good cause to believe was being used by Big Foot, the nickname given trucker eventually identified as Melvin Skinner, who they alleged was transporting marijuana.  They obtained a court order under which the provider, Sprint/Nextel, acting at the behest of law enforcement, pinged the phone repeatedly so it would reveal its location over a three-day period and eventually activated the phone’s GPS functionality to locate the phone’s GPS coordinates.   (Sprint/Nextel recently developed a web portal [8] through which law enforcement can do this automatically for the duration of the court authorization, without contacting the provider each time officers ping the phone.)

The court found that there was “… no Fourth Amendment violation because Skinner did not have a reasonable expectation of privacy in the data given off by his voluntarily procured … cell phone.”  But, as Jennifer Grannick points out [9] cell phones don’t normally “give off” the kind of GPS location data that law enforcement used to locate Skinner.  Unless the user is employing location services – and Skinner wasn’t – the GPS location data has to be created.  In this case, the provider, under court order, remotely activated the GPS function of Skinner’s phone so the police could track him.

There’s a critical difference between GPS location information and cell tower location information a mobile phone creates during normal use.  The GPS data in this case is created at the request of law enforcement for tracking purposes and not through the normal use of the mobile phone. The GPS data doesn’t even exist until the provider prompts the device to deliver its GPS location to the provider so law enforcement can access it.  In contrast, providers maintain cell tower location information for business reasons.  Because providers do not normally maintain GPS location information and because it was not voluntarily conveyed to the provider, it is not a “business record” and does not fit into the third party records doctrine, which says that a person has no Fourth Amendment interest in information that is voluntarily revealed to, and held by, a third party.  While the third party doctrine should probably be re-examined [10], for now we have to live with it, but not for GPS data created by providers at the behest of law enforcement.  For that data, we retain our Fourth Amendment rights against warrantless GPS tracking.  

Blind Eye to Justice

Apparently recognizing that GPS is different, the Justice Department recommends that prosecutors obtain a warrant to get GPS location information from mobile communications service providers.  For example, in this power point presentation [11] the Associate Director of the Justice Department Office of Enforcement Operations recommends that prosecutors use search warrants to get prospective GPS location information (referred to as “lat/long data” or latitudinal and longitudinal data) for constitutional, not statutory reasons, and because “anything less presents significant risks of suppression.”  In addition, the Justice Department Associate Deputy Attorney General, testified [12] in April last year that when the government seeks to compel disclosure of prospective GPS coordinates generated by cell phones, it relies on a warrant.

The Sixth Circuit missed this point entirely.  It blithely rejected Skinner’s Fourth Amendment claims and implicitly bought into the government’s argument that orders under the Stored Communications Act provision at 18 USC 2703(d) can be used to obtain prospective location information that has never been stored.  It did not consider whether the information sought was within the third party records doctrine and it cited no statutory authority for the proposition that the government can compel a provider to create the GPS information for the government to seize.  

Perhaps most ironically, it seems pretty clear that the government had facts [7] establishing probable cause and could have obtained a warrant if it had applied for one.  As the concurring opinion in Skinner noted, law enforcement officials were watching the drug operation for months, had recorded conversations about an upcoming drug run, learned that the courier was carrying a particular phone that they could track, and that a half ton of marijuana was in transit.  

A warrant requirement for location information, as advocated by the Digital Due Process coalition [13], would still mean a drug courier like Skinner would get caught.  If followed, a statutory warrant requirement decreases the chances a criminal would elude jail because the seized evidence would not be at risk of suppression, as it is now for Big Foot if he appeals this decision. 

For updates, follow us on Twitter at @CenDemTech [14].

Copyright © 2012 by Center for Democracy & Technology.

The content throughout this website that originates with CDT can be freely copied and used as long as you make no substantive changes and clearly give us credit. Details.

Source URL: https://www.cdt.org/blogs/greg-nojeim/1708tracking-big-foot-why-gps-location-requires-warrant

Links:
[1] https://www.cdt.org/personnel/greg-nojeim
[2] http://www.aclu.org/node/36123
[3] http://www.cato-at-liberty.org/skinning-the-fourth-amendment-the-sixth-circui…
[4] https://www.eff.org/deeplinks/2012/08/to-make-sure-criminals-get-no-location-…
[5] http://www.volokh.com/2012/08/14/sixth-circuit-rules-that-pinging-a-cell-phon…
[6] http://www.ca6.uscourts.gov/opinions.pdf/12a0262p-06.pdf
[7] https://docs.google.com/a/cdt.org/file/d/1gr1bscSXqb7pXfIi7GXaM5Ywg5sUg-hblBe…
[8] http://www.wired.com/threatlevel/2009/12/gps-data/
[9] http://cyberlaw.stanford.edu/blog/2012/08/updated-sixth-circuit-cell-tracking….UCsknnDKN1U.twitter
[10] http://www.abajournal.com/magazine/article/the_data_question_should_the_third…
[11] http://www.aclu.org/pdfs/freespeech/18cellfoia_release_CRM-200800622F_0601200…
[12] http://www.judiciary.senate.gov/pdf/11-4-6%20Baker%20Testimony.pdf
[13] http://www.digitaldueprocess.org
[14] https://twitter.com/#%21/CenDemTech

via cdt.org

https://www.cdt.org/print/19546

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The staggering amount of personal health data now being collected for treatment or billing purposes has a life beyond the doctor’s clipboard. The data is collected, stripped of personally identifying information (“de-identified”) and re-used in ways that are vital for medical breakthroughs, improving patient care, or predicting public health trends.  And it’s just as valuable when used for targeted marketing campaigns or eliminating inefficiencies in the healthcare…

Tracking Big Foot: Why GPS Location Requires a Warrant

In a case that raises as many questions as the average sighting of Big Foot, a panel of the Sixth Circuit Court of Appeals ruled earlier this week that law enforcement officers didn’t need a warrant to obtain GPS location information generated by his cell phone.

The court’s analysis has been roundly criticized as legally incorrect,…

‘Safe Data’ Strategies for Health Info on Mobile Devices

Consumer use of mobile technologies to stay healthy or manage a chronic health condition is increasing; likewise, an increasing number are using these technologies as a digital link to their doctors.  Yet, unlike health care providers who must follow federal privacy and security rules when using mobile technologies to share a patient’s health information, no such rules…


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Recent Blog Posts

Better Policies for De-Identified Health Data

The staggering amount of personal health data now being collected for treatment or billing purposes has a life beyond the doctor’s clipboard. The data is collected, stripped of personally identifying information (“de-identified”) and re-used in ways that are vital for medical breakthroughs, improving patient care, or predicting public health trends.  And it’s just as valuable when used for targeted marketing campaigns or eliminating inefficiencies in the healthcare…

Tracking Big Foot: Why GPS Location Requires a Warrant

In a case that raises as many questions as the average sighting of Big Foot, a panel of the Sixth Circuit Court of Appeals ruled earlier this week that law enforcement officers didn’t need a warrant to obtain GPS location information generated by his cell phone.

The court’s analysis has been roundly criticized as legally incorrect,…

‘Safe Data’ Strategies for Health Info on Mobile Devices

Consumer use of mobile technologies to stay healthy or manage a chronic health condition is increasing; likewise, an increasing number are using these technologies as a digital link to their doctors.  Yet, unlike health care providers who must follow federal privacy and security rules when using mobile technologies to share a patient’s health information, no such rules…


More ->

Tracking Big Foot: Why GPS Location Requires a Warrant

‘Safe Data’ Strategies for Health Info on Mobile Devices

Better Policies for De-Identified Health Data

Buliding Public Trust in De-Identified Health Data

Tracking Big Foot: Why GPS Location Requires a Warrant

Better Policies for De-Identified Health Data

‘Safe Data’ Strategies for Health Info on Mobile Devices

Buliding Public Trust in De-Identified Health Data

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Good Cop, Bad Citizen? As Cellphone Recording Increases, Officers Are Uneasy – by Daviid L. Hudson, Jr. – ABA Journal

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Good Cop, Bad Citizen? As Cellphone Recording Increases, Officers Are Uneasy

Posted Mar 1, 2012 4:40 AM CDT
By David L. Hudson Jr.

  •  
image

A plainclothes Maryland state trooper approaches speeding suspect Anthony Graber, who captured the encounter with a camera atop his motorcycle helmet and later posted the video on YouTube.

Walking past Boston Common, the city’s august park, in 2007, attorney Simon Glik noticed several police officers arresting a young man. Glik heard another bystander say he thought the police were using excessive force. So he pulled out his cellphone and began shooting video of the incident.

After arresting the young man, one of the officers turned to Glik, saying, “I think you have taken enough pictures.” When the officer asked Glik whether his audio recorder was on, Glik acknowledged it was. Glik was then arrested for violating a state wiretap law and two other state offenses.

The charges were subsequently dropped, but for Glik that was just the beginning. He filed a constitutional tort suit alleging violation of his First and Fourth Amendment rights. The officers filed a motion to dismiss, contending they were entitled to qualified immunity, enabling government officials to avoid liability if they don’t violate clearly established constitutional or statutory law. But a federal district court denied the officers’ claim.

And last August, the 1st U.S. Circuit Court of Appeals at Boston ruled in Glik v. Cunniffe that the officers violated Glik’s clearly established constitutional right to video-record the police performing their duties in public.

“Our recognition that the First Amendment protects the filming of government officials in public spaces accords with the decisions of numerous circuit and district courts,” the panel wrote. The case went back to the federal district court and the parties are in discovery.

With the ubiquity of cellphones, the ease of video-recording and the availability of such websites as YouTube, people can respond quickly to police incidents and broadly circulate the recordings.

POINT AND SHOOT

“The prevalence of cellphone cameras with high enough resolutions for people to record the police and then be able to disseminate it over the Internet” is a major reason for the video-recording, says Boston attorney Jeffrey P. Hermes, director of the Citizen Media Law Project.

But law officers are often uncomfortable. “Many officers are also uncomfortable that their activities might be displayed on the Internet and otherwise widely distributed,” says Portland, Ore., lawyer Bert P. Krages, who specializes in the area. “Some also have the impression that photography presents a security risk and are acting according to a post-9/11 mentality.”

Adds Krages: “Law enforcement personnel are still grappling with the idea that ordinary citizens have the right to take images, whereas previously such photographs and videos were taken by professionals employed by traditional media companies.”

“When you talk about citizen journalists, there is also a slightly different relationship between those individuals and the police and the relationship that many mainstream journalists have with the police,” Hermes says. “Those mainstream journalists who cover the police have developed an understanding with the police that many private individuals have not.”

The 1st Circuit found it irrelevant that Glik was a private citizen rather than a professional journalist. “The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cellphone or digital camera rather than a traditional film crew,” the court said. “Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.”

CASES IN PLAY

Glik is far from the only case. The American Civil Liberties Union of Illinois also has a case pending in the Chicago-based 7th Circuit that challenges the constitutionality of the Illinois Eavesdropping Act, as it applies to making video and audio recordings of police performing their public duties.

ACLU of Illinois v. Alvarez, filed in August 2010, claims the broad nature of the Illinois law may expose ACLU members to arrest. “The act makes audio-recording police officers in these circumstances a felony,” the complaint states. “Due to a reasonable fear of arrest and prosecution, the ACLU is restrained from engaging in this conduct.”

A federal district court dismissed the case as moot in October 2010 and the ACLU appealed. Oral argument took place in the 7th Circuit last September.

In May 2011, Emily Good was arrested in Rochester, N.Y., for taking video of police conducting a traffic stop on the street in front of her yard. According to published accounts, police told her they didn’t feel safe with her there. She was later taken into custody.

In April 2010, Anthony Graber faced an indictment in Abingdon, Md., after he recorded a state trooper giving him a ticket and then posted the video on YouTube. Graber, a 25-year-old staff sergeant for the Maryland Air National Guard, was riding his motorcycle down Interstate 95. On top of his helmet was a camera he often used to record his journeys.

The camera was rolling when an unmarked gray sedan cut him off. A man wielding a gun emerged from the driver’s side, yelling at Graber and ordering him to get off his bike. Only then did the state trooper identify himself and holster his weapon. Graber was cited for doing 80 in a 65-mph zone.

Graber accepted his ticket, then posted his video. A few weeks later, he was awakened by six officers raiding his parents’ home, where he lived with his wife and two children. He learned later that a grand jury indictment alleged he had violated state wiretap laws by recording the trooper without his consent.

“Police justifications come in a few different flavors,” Hermes says. There are security concerns and charges of violating wiretap laws, which vary by state. But police also claim they are covered by qualified immunity. The doctrine shields government officials from liability for the violation of an individual’s federal constitutional rights—so long as the official’s actions, even if later found to be unlawful, did not violate “clearly established law.”

David Milton, a Boston-based attorney who represents Glik, points to the 2010 case Kelly v. Borough of Carlisle. There the 3rd Circuit at Philadelphia granted qualified immunity to a police officer who arrested a passenger in a vehicle he had pulled over for speeding. The officer discovered the passenger was video-recording him and claimed the passenger violated Pennsylvania’s Wiretap Act. The appeals court determined that the officer was entitled to qualified immunity because he reasonably believed he had the authority to arrest the passenger.

Part of the problem, Milton says, stems from a 2009 U.S. Supreme Court decision, Pearson v. Callahan, in which the justices said lower courts had the option of deciding cases based on whether the law was clearly established, without first determining whether there had been a violation of individual constitutional rights.

But Glik altered the balance, saying there is a clearly established right to monitor the police. “On the First Amendment issue, the concept that there is a clearly established right seems consistent with prior case law in the 1st Circuit and the experience of media recording in public as long as there have been video cameras,” Hermes says. “For decades we have had television stations recording in public and not facing sanctions.”

Adds Milton: “What is so good about the 1st Circuit decision in Glik is that the judges recognized that even though there may not be a prior case of a police officer in a park with a person on a cellphone, basic long-standing First Amendment principles clearly apply to the situation even though it involves new technology.”

Although there is no Supreme Court ruling that finds a right to record in public, Hermes says, many believe there is a clearly established constitutional right to monitor the police.

“Police serve a vital function and most law enforcement officers are very decent people who should be commended,” Krages says.

“However,” he adds, “the police are in a position to grossly abuse civil liberties, and the bad ones cause a lot of harm. In many situations, a determination of what actually happened comes down to deciding whether the officer is more credible than a suspect or citizen. Consumer-level imaging, particularly video, has captured images of officers acting very inappropriately in all sorts of situations.”

via abajournal.com

Learn more about Professor Hudson here… http://law.vanderbilt.edu/hudson or visit his website at http://www.davidlhudsonjrbooks.com/index.html

glad to know ya!

^ed

David L. Hudson Jr. is a scholar at the First Amendment Center where he writes for the Center’s website, speaks to the media and lectures on a variety of First Amendment issues. He is the author, co-author or co-editor of more than 35 books, including Let The Students Speak: A History of the Fight for Free Expression in American Schools (Beacon Press, 2011), The Encyclopedia of the First Amendment (CQ Press, 2008)(one of three co-editors), The Rehnquist Court: Understanding Its Impact and Legacy (Praeger, 2006), and The Handy Supreme Court Answer Book (Visible Ink Press, 2008). He has written several books devoted to student-speech issues and others areas of student rights. He also serves as a First Amendment contributing editor for the American Bar Association’s Preview of United States Supreme Court Cases. Professor Hudson teaches First Amendment and Professional Responsibility classes at Vanderbilt.

 

LEARN MORE ABOUT ME HERE…

 

 

 

hatecrimes6.pdf
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http://ise.gov/sites/default/files/ISE_Annual_Report_to_Congress_2012.pdf

ISE_Annual_Report_to_Congress_2012.pdf
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Good Cop, Bad Citizen? As Cellphone Recording Increases, Officers Are Uneasy – by Daviid L. Hudson, Jr. – ABA Journal

Posted on by
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Good Cop, Bad Citizen? As Cellphone Recording Increases, Officers Are Uneasy

Posted Mar 1, 2012 4:40 AM CDT
By David L. Hudson Jr.

  •  
image

A plainclothes Maryland state trooper approaches speeding suspect Anthony Graber, who captured the encounter with a camera atop his motorcycle helmet and later posted the video on YouTube.

Walking past Boston Common, the city’s august park, in 2007, attorney Simon Glik noticed several police officers arresting a young man. Glik heard another bystander say he thought the police were using excessive force. So he pulled out his cellphone and began shooting video of the incident.

After arresting the young man, one of the officers turned to Glik, saying, “I think you have taken enough pictures.” When the officer asked Glik whether his audio recorder was on, Glik acknowledged it was. Glik was then arrested for violating a state wiretap law and two other state offenses.

The charges were subsequently dropped, but for Glik that was just the beginning. He filed a constitutional tort suit alleging violation of his First and Fourth Amendment rights. The officers filed a motion to dismiss, contending they were entitled to qualified immunity, enabling government officials to avoid liability if they don’t violate clearly established constitutional or statutory law. But a federal district court denied the officers’ claim.

And last August, the 1st U.S. Circuit Court of Appeals at Boston ruled in Glik v. Cunniffe that the officers violated Glik’s clearly established constitutional right to video-record the police performing their duties in public.

“Our recognition that the First Amendment protects the filming of government officials in public spaces accords with the decisions of numerous circuit and district courts,” the panel wrote. The case went back to the federal district court and the parties are in discovery.

With the ubiquity of cellphones, the ease of video-recording and the availability of such websites as YouTube, people can respond quickly to police incidents and broadly circulate the recordings.

POINT AND SHOOT

“The prevalence of cellphone cameras with high enough resolutions for people to record the police and then be able to disseminate it over the Internet” is a major reason for the video-recording, says Boston attorney Jeffrey P. Hermes, director of the Citizen Media Law Project.

But law officers are often uncomfortable. “Many officers are also uncomfortable that their activities might be displayed on the Internet and otherwise widely distributed,” says Portland, Ore., lawyer Bert P. Krages, who specializes in the area. “Some also have the impression that photography presents a security risk and are acting according to a post-9/11 mentality.”

Adds Krages: “Law enforcement personnel are still grappling with the idea that ordinary citizens have the right to take images, whereas previously such photographs and videos were taken by professionals employed by traditional media companies.”

“When you talk about citizen journalists, there is also a slightly different relationship between those individuals and the police and the relationship that many mainstream journalists have with the police,” Hermes says. “Those mainstream journalists who cover the police have developed an understanding with the police that many private individuals have not.”

The 1st Circuit found it irrelevant that Glik was a private citizen rather than a professional journalist. “The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cellphone or digital camera rather than a traditional film crew,” the court said. “Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.”

CASES IN PLAY

Glik is far from the only case. The American Civil Liberties Union of Illinois also has a case pending in the Chicago-based 7th Circuit that challenges the constitutionality of the Illinois Eavesdropping Act, as it applies to making video and audio recordings of police performing their public duties.

ACLU of Illinois v. Alvarez, filed in August 2010, claims the broad nature of the Illinois law may expose ACLU members to arrest. “The act makes audio-recording police officers in these circumstances a felony,” the complaint states. “Due to a reasonable fear of arrest and prosecution, the ACLU is restrained from engaging in this conduct.”

A federal district court dismissed the case as moot in October 2010 and the ACLU appealed. Oral argument took place in the 7th Circuit last September.

In May 2011, Emily Good was arrested in Rochester, N.Y., for taking video of police conducting a traffic stop on the street in front of her yard. According to published accounts, police told her they didn’t feel safe with her there. She was later taken into custody.

In April 2010, Anthony Graber faced an indictment in Abingdon, Md., after he recorded a state trooper giving him a ticket and then posted the video on YouTube. Graber, a 25-year-old staff sergeant for the Maryland Air National Guard, was riding his motorcycle down Interstate 95. On top of his helmet was a camera he often used to record his journeys.

The camera was rolling when an unmarked gray sedan cut him off. A man wielding a gun emerged from the driver’s side, yelling at Graber and ordering him to get off his bike. Only then did the state trooper identify himself and holster his weapon. Graber was cited for doing 80 in a 65-mph zone.

Graber accepted his ticket, then posted his video. A few weeks later, he was awakened by six officers raiding his parents’ home, where he lived with his wife and two children. He learned later that a grand jury indictment alleged he had violated state wiretap laws by recording the trooper without his consent.

“Police justifications come in a few different flavors,” Hermes says. There are security concerns and charges of violating wiretap laws, which vary by state. But police also claim they are covered by qualified immunity. The doctrine shields government officials from liability for the violation of an individual’s federal constitutional rights—so long as the official’s actions, even if later found to be unlawful, did not violate “clearly established law.”

David Milton, a Boston-based attorney who represents Glik, points to the 2010 case Kelly v. Borough of Carlisle. There the 3rd Circuit at Philadelphia granted qualified immunity to a police officer who arrested a passenger in a vehicle he had pulled over for speeding. The officer discovered the passenger was video-recording him and claimed the passenger violated Pennsylvania’s Wiretap Act. The appeals court determined that the officer was entitled to qualified immunity because he reasonably believed he had the authority to arrest the passenger.

Part of the problem, Milton says, stems from a 2009 U.S. Supreme Court decision, Pearson v. Callahan, in which the justices said lower courts had the option of deciding cases based on whether the law was clearly established, without first determining whether there had been a violation of individual constitutional rights.

But Glik altered the balance, saying there is a clearly established right to monitor the police. “On the First Amendment issue, the concept that there is a clearly established right seems consistent with prior case law in the 1st Circuit and the experience of media recording in public as long as there have been video cameras,” Hermes says. “For decades we have had television stations recording in public and not facing sanctions.”

Adds Milton: “What is so good about the 1st Circuit decision in Glik is that the judges recognized that even though there may not be a prior case of a police officer in a park with a person on a cellphone, basic long-standing First Amendment principles clearly apply to the situation even though it involves new technology.”

Although there is no Supreme Court ruling that finds a right to record in public, Hermes says, many believe there is a clearly established constitutional right to monitor the police.

“Police serve a vital function and most law enforcement officers are very decent people who should be commended,” Krages says.

“However,” he adds, “the police are in a position to grossly abuse civil liberties, and the bad ones cause a lot of harm. In many situations, a determination of what actually happened comes down to deciding whether the officer is more credible than a suspect or citizen. Consumer-level imaging, particularly video, has captured images of officers acting very inappropriately in all sorts of situations.”

via abajournal.com

Learn more about Professor Hudson here… http://law.vanderbilt.edu/hudson or visit his website at http://www.davidlhudsonjrbooks.com/index.html

glad to know ya!

^ed

David L. Hudson Jr. is a scholar at the First Amendment Center where he writes for the Center’s website, speaks to the media and lectures on a variety of First Amendment issues. He is the author, co-author or co-editor of more than 35 books, including Let The Students Speak: A History of the Fight for Free Expression in American Schools (Beacon Press, 2011), The Encyclopedia of the First Amendment (CQ Press, 2008)(one of three co-editors), The Rehnquist Court: Understanding Its Impact and Legacy (Praeger, 2006), and The Handy Supreme Court Answer Book (Visible Ink Press, 2008). He has written several books devoted to student-speech issues and others areas of student rights. He also serves as a First Amendment contributing editor for the American Bar Association’s Preview of United States Supreme Court Cases. Professor Hudson teaches First Amendment and Professional Responsibility classes at Vanderbilt.

 

LEARN MORE ABOUT ME HERE…

 

 

 

hatecrimes6.pdf
Download this file

 

http://ise.gov/sites/default/files/ISE_Annual_Report_to_Congress_2012.pdf

ISE_Annual_Report_to_Congress_2012.pdf
Download this file