Tech | October 29, 2009 | 22 comments

Scholars reject Obama's Stance on Warrantless Cellphone Recording

source: http://www.wired.com/threatlevel/2009/04/scholars-reject/

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The Obama administration’s position that the government can force mobile carriers to hand over cellphone tower location information on their customers without a warrant is wrong, two legal scholars say.

"Because CSLI acquisition is hidden, indiscriminate and intrusive, and because it reveals information over a period of time, it should be subject to the highest level of Fourth Amendment oversight (the same procedures used for wiretapping and video surveillance)," the scholars wrote late Friday.

The scholars are Susan Freiwald, of the USF School of Law, and Peter Swire, of Ohio State University.

Their words, published by the American Constitution Society, came a month after the Justice Department made its claim in a little-noticed case that the Fourth Amendment right to be free from unreasonable searches and seizures did not apply.

Most Americans have or will carry a mobile phone in their lifespan, so the outcome could have wide-ranging privacy ramifications. Smartphones, like the iPhone, use cell-tower information to power geo-location applications like Google Maps.

In a case pending before the 3rd U.S. Circuit Court of Appeals, the government maintains it can require federal judges to order mobile phone companies to release historical cell-tower information of a phone number without probable cause — the standard required for a search warrant.

While judges have differed on the issue, the resulting evidence can be used in a criminal prosecution. The case on appeal concerns a Pennsylvania judge who rejected the government’s position in a drug prosecution that the new administration inherited.

Mobile-phone providers keep cell-site information for up to 18 months. Historical cell-site location information includes the tower connected at the beginning of a call and at the end of the call. The government does not claim a warrantless right to cell-site information for future calls, only for calls already dialed.

"Cellular providers could, if they wanted, keep track of your cell phone’s location every seven seconds," the scholars wrote, "because your phone ‘registers’ that often with the nearest tower."
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22 comments // Scholars reject Obama's Stance on Warrantless Cellphone Recording

  • air
    • 0
      air  

    • doesn't the government already work with the companies that supply the internet infrastructure for USA to record all traffic? why do they need to be so lazy about getting past mobile phone locations? I see jobs that could be created.

    • 2 years ago
  • rwahrens
    • 0
      rwahrens  

    • On the contrary, Ryan8566,

      The Roberts Court has gone on record as being very supportive of precedent. That means that settled legal opinions will weigh in heavier than unsettled legal opinions fragmented across different Circuit Courts.

      The 4th amendment is VERY clear, and past SCOTUS opinions weigh more towards requiring warrants unless there are extra-ordinary circumstances. Since the previous law had a very good (and well used) process for both procuring a warrant for secret wiretaps and for obtaining one after the fact, and that secret system of magistrates is still in operation, there is a better than even chance that SCOTUS will declare this part of the Patriot Act unConstitutional.

      In fact, I'd bet that this is the reason the Obama Administration has declined to end this case prematurely. If the DOJ drops the case now, it will not get ruled on by a court, and a future Administration (or even this one) could come back later and make the same claims Bush did and use this law, which would still be on the books.

      But if they let the case go to a final appeal to the SCOTUS, it will become settled law one way or the other. Since there IS a better than even chance of it being overturned, they are taking the chance of continuing to appeal.

      This does NOT mean that Obama or any of his team support the Bush era policies, but that they are trying to get them declared illegal, so they cannot be used by a subsequent Administration.

    • 2 years ago
  • ryan8566
    • 0
      ryan8566  

    • i have no reason to believe that the Supreme Court with its current make-up would require a warrant; this should go no further--the threshold of 'probable cause', while clear in the books, actually depends on which judge is asked to decide, causing a lot of 'judge shopping'....and abuse of the 4th amendment.

    • 2 years ago
  • acontradiction
  • lifestudentno83
    • 0
      lifestudentno83  
    • acontradiction:

      Perhaps they don't follow as blindly as you characterize them? This is not Bush-Era Republicans we're talking about...

      These are free-thinking liberals... Do you honestly think McCain had any intention of stopping the warrantless wire-tapping or the war?

    • 2 years ago
  • asherp
    • 0
      asherp  
    • acontradiction:

      According to a study, 30% of the voting population blindly follows the Democratic party, blindly voting Democrat even if their candidate is Ayn Rand or Milton Friedman.
      Another 30% also blindly follows the Republican party, voting Republican even if their candidate is Karl Marx or Mao Tse-Tung.

      That leaves 40% of the voting population that actually thinks about issues. Scary, huh?

    • 2 years ago
  • FishaHouse777
    • 0
      FishaHouse777  
    • acontradiction:

      Which is why we need to abolish the party system in effect, it only leads to blind voting and bipartisan government. People seem to make allegiance's to one party based over a set criteria, like the democrats are known to be more liberal and the republicans more conservative. But that doesn't make the candidate liberal or conservative, it just means the candidate has a label. We need to make it so candidates only belong to Their Own Party. This would make it so their party is only effective while the candidate is running for a political position. After he's not in politics anymore his party is terminated, never to be used again. This would lower blind votes and party corruption, and increase useful bills being passed. Or as in this case bad bills being appealed, the patriot act needs to be appealed or atleast heavily reformed.

    • 2 years ago
  • FishaHouse777
    • 0
      FishaHouse777  

    • These "scholars" are absolutely right and this law shouldn't be passed because it infringe's our privacy rights. But on the other hand even if it is passed i'm sure it will be appealed soon enough as people begin realizing their privacy is being taken.

    • 2 years ago
  • rwahrens
  • asherp
    • 0
      asherp  
    • FishaHouse777:

      not only was it passed in the USAPATRIOT act, but it was further expanded when the NSA was doing things that was illegal even under the PATRIOT act.

      That was the FISA "enhancement" act. Which Obama voted for as a Senator. It was during the primary season. Hillary voted against it, which was a real surprise, since she's generally a neoconservative hawk.

    • 2 years ago
  • zphoenixdownz
  • asherp
  • cabinettags
    • 0
      cabinettags  

    • A warrant can be obtained from a judge only by proving to him/her that probable cause exists. In other words someone goes to a judge and tries to prove a situation is deserving of investigation. The judge goes yea or nay. This is part of our checks and balances.

      To investigate someone without probable cause should be prohibited. There should be some apparatus in place to handle the situation in those cases where national security is involved and secrecy paramount. But the checks and balances should be in there. I for one, don't want to write the govt a free ticket.

      I see no reason we can't be secure and protect our personal freedoms at the same time.

    • 2 years ago
  • rwahrens
    • 0
      rwahrens  

    • It's not the boss, it's the bureaucracy. It's hard to just tell it to reverse course sometimes. Especially the law enforcement part of it, because some of the ramifications can be quite different than supposed by an outsider.

      But I am not defending the position being taken by the government here, just that a President finds it VERY hard to make a large bureaucratic entity like the government change course overnight.

      Heck, the White House may not even be aware of the position being taken by bureaucrats at times, although in this case, the White House may just be choosing its battles and has decided that this one should be left to a better time.

      But here I agree with the scholars, this kind of thing should require a warrant. It's not as if that's terribly hard to obtain, especially where, like here, the data being requested is already an archived set and not in a form that is likely to disappear if not obtained immediately.

    • 2 years ago
  • chasingame
    • 0
      chasingame  

    • It is easy to see how this info can be use used against real threats like terrorism. But, it is just as easy to see how it could be abused. They should be required to get a warrant. That being said, I wonder just how hard it is for them to get a warrant in the first place? Probably not as difficult as it should be...

    • 2 years ago
  • asherp
    • 0
      asherp  
    • chasingame:

      It used to be incredibly easy for the NSA to get a warrant, and they could get one retroactively if they had good reason for starting surveillance, a policy which is by 4th amendment standards, very lax. But there was congressional oversight and review.

      Now they simply have carte blanche.
      It's a Bush-era Policy, voted for by Senator Obama, and sustained by President Obama.

    • 2 years ago
  • carmalite
    • 0
      carmalite  
    • chasingame:

      It is not difficult. I forgot the name of the new procedure that was passed under Bush but a warrent can be issued very quickly. This new procedure was the reason Civil Libertarians were so against the warrentless wire taps, becausee they are really not necessary. This is just a way for them to take away rights.

    • 2 years ago
  • Admirable
  • vicafri
  • DougChristian
    • 0
      DougChristian  
    • Admirable:

      This is a case and a justice department stance that was started in the Bush Administration. The new administration could close all these cases down, or just let them go, but they did not choose the stance. Really, it's up to the courts to stop this and declare it unconstitutional.

      There will be things like this coming out of the woodwork for years. The new administration should be judged on the new cases it pursues and on the new policies it enacts. It should not be judged on whether it has managed to reverse every stance of the previous administration before the end of the first year. The jury is still out.

      But you go right on seeing what you want to believe.

    • 2 years ago
  • rwahrens
    • 0
      rwahrens  
    • Admirable:

      True, dat.

      I actually think that this could be a tactic by the Obama Administration to settle this issue once and for all, by letting the Bush Admin position get rolled over by the courts.

      If Obama pulls the case, the courts never get to rule on it, and another administration could come back in the future and do it again. If the courts have ruled it unconstitutional, then the issue is settled law.

    • 2 years ago
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