No Warrant, No Problem: New SCOTUS Ruling Does Not Apply To Real Time Location Tracking

Or, 'Fine Print' Of Recent Supreme Court Ruling Exempts, May Actually Encourage Wholesale Warrantless Tracking Of Cell Phones

"Protection For A Price," by a female faust, graphic by Brandon Bailey Design

The body of a contract spells out what is and is not allowed, often in print so small, a magnifying glass is necessary. That takes a bit more effort than just reading; one has to find the magnifying glass, for starters. The finer the print and the longer the contract, the more it may begin to seem like obfuscation.

The Supreme Court's recent decision in the case of CARPENTER v. UNITED STATES quickly and universally became acknowledged as a landmark ruling. If you were to let the mainstream media describe it, and you accepted cues gleaned from tone and word choice, you would think, at last, real progress is being made in the fight for the right to privacy. That is, until you learn the actual extent to which this ruling does — and does not — reach.

At first I thought I understood why the optimism. We wouldn't want to seem ungrateful, now would we. But when NPR, whose "All Things Considered" is iconic, titled their review with a bold "In Major Privacy Win, Supreme Court Rules Police Need Warrant To Track Your Cellphone," I thought that went a bit far. Mostly because it is not, well, exactly true. 

Right-click-open-in-new-tab to enlarge. Source: NPR

Now NPR clarifies itself right away, but the clarification only makes sense if you already understand that fine print:

In Major Privacy Win, Supreme Court Rules Police Need Warrant To Track Your Cellphone  An "All Things Considered" Transcript by Nina Totenberg, NPR In a landmark decision, the US Supreme Court ruled Friday that police must obtain a search warrant to access an individual's cellphone location information. The 5-4 decision imposes new limits on law enforcement's ability to get at the increasing amount of data that private companies amass in the modern technological age. Read more

Because, you see, the "increasing amount of data that private companies amass" is an opaque reference to historical location information — the kind of location information upon which this ruling "imposes new limits." Or to put it another way:

Your real-time location information is (still) available without a warrant. 

Of course. Because otherwise what would Google maps do? Or Uber, or Grubhub? What would your phone company do? Your ISP? 

Furthermore, are they going to make sure that they only have access to data in real time? Does the ruling apply to the vast troves of historical data they have already amassed? No, and even if it did, it does not apply to any data aggregated going forward. 

(I am careful not to use the term 'collected,' because, as we all know, in this era of Big Data, it isn't actually collected until someone looks at it. We may as well all use the same working set of definitions. Makes communication easier.) 

AT&T took some heat in 2006 when they stated in their terms of service "While your account information may be personal to you, these records constitute business records that are owned by AT&T." They have reworded since, but that did not change their policy: it is the industry norm. Location information belongs to the various companies who aggregate it, and they can sell it if they please.

And nothing is to stop someone with access from tracking your phone in real time; after a while, they would have amassed incredibly revealing location information that would then be theirs, not yours. 

To recap:

• It does NOT apply to real-time location data - so patterns can be reassembled after new tracking.

• It does NOT apply to data collected by the private sector - so data can be — easily — bought or traded.

• It does NOT apply to investigations related to national security - and remember, most invocations of the Patriot Act have involved drugs, not terrorism.

Private entities regularly share their data with the government, without a warrant, and even if they didn't, a trivial amount of real-time location tracking will reestablish the behavioral patterns of most individuals with alarming accuracy. Enough to discover most if not all of their important social affiliations. Include the call metadata, and you have nearly all of it; track their friends for a week, and, without a warrant, but with the info already available, I am sure the

leaked document on Intelink: Right-click-open-in-new-tab to enlarge

degree to which their privacy has been infringed upon exceeds that with which the Founding fathers felt comfortable. All of which does not take into account the data already collected by those in the public sector, or the data collected by private entities, or other branches of the government. The NSA, for example, shares its vast trove with ICE and the CIA, DEA and FBI via the INTELINK service.

The dissenting opinions, as noted by NPR, highlight this.

Kennedy's dissent noted that "cell site records are created, kept, owned and controlled by cellphone service providers, who even sell this information to third

Thanks to Snowden: Right-click-open-in-new-tab to enlarge

parties." Therefore, he said, Carpenter cannot claim ownership or possession of the records and has no control over them.

NPR also noted that Alito was puzzled, since phone companies charge for customers to access this data, saying, "It would be very strange if the owner of the records were required to pay in order to inspect his own property." NPR quoted Thomas, who thought the Fourth Amendment did not apply for this reason, since the papers and effects in question did not belong to the individual searched.

I hate to single out NPR here, since I have done it before (see "'Link in Your Mind' Cyberattacks and Fukushima")... well, I don't hate it that much. They know what the fine print is, obviously, but they are not going out of their way to make that clear. This discrepancy was even more stark listening to the piece rather than reading it. Did you know the ruling doesn't apply to real-time data? I didn't -- not after I heard the NPR piece on All Things Considered (screenshot of transcription above). I learned it elsewhere.

From VICE by Isabella McKinley Corbo The 5-4 decision, written by Chief Justice John Roberts, sets a strong legal limit on how much of your digital data the government can access. But the justices also stressed that these limits apply only to the type of data at question in the case: historical location information. The justices made clear they weren’t weighing in on real-time location records or data related to foreign affairs or national security. Even so, the ruling is a strong rebuke of the government's encroachment on technological advances. Read more

Given that the government can get the information anyway — if they buy it, with taxpayer money — how is this a 'strong rebuke'? I have to admit, Vice does only a little better than NPR at informing the public, but the lack of application to real time location is crucial. And scary.

From the Syllabus, Carpenter v US, emphasis mine: A  majority  of  the  Court  has  already  recognized  that  individuals have a reasonable expectation of privacy in the whole of their physical  movements.    Allowing  government  access  to  cell-site  records — which “hold for many Americans the ‘privacies of life,’” (Riley v. California, 573 U. S.) — contravenes that expectation.  In fact, historical cell-site records present even greater privacy concerns than the  GPS  monitoring  considered  in  Jones:  They  give  the  Government near perfect surveillance and allow it to travel back in time to retrace a  person’s  whereabouts,  subject  only  to  the five-year  retention  policies  of  most  wireless carriers. Read more (PDF)

The founding fathers expected their physical location to be a matter as private as their papers and effects, but that privacy is increasingly challenged by modern wireless technologies. By design, location based information is not only indispensable to most functionality, it is inherently bi-directional. Whether this indicates malice or merely negligence, it is a fact, and one on which many a company depends for revenue.

So. Given that:

"The Court's reasoning threaten[s] many legitimate and valuable investigative practices upon which law enforcement has rightfully come to rely." (Alito) "Cell location information is often gathered in the early stages of an investigation when there isn't enough information for a search warrant. The same is true in terrorism and national security investigations" "Cellphone data are more reliable than more traditional sources of information," The decision "has no impact on the ability of private companies to amass, use and sell their customers' information" The ruling does not apply to "real-time location records or data related to foreign affairs or national security"

The practices of obtaining location information from third parties on the one hand, or of monitoring individuals' location covertly in real time, on the other, are likely to be the "legitimate and valuable investigative practices " of which Alito spoke. Both are regularly conducted, without a warrant, in order to uncover sufficient grounds to obtain one.

Wikipedia: links clickable, Right-click-open-in-new-tab.

And, it appears to me that if there are any alterations in these routines, they will only be cosmetic. Please correct me if you think otherwise. I invite (civilized) comments and enjoy and encourage lively discussion.

Don't get me wrong, now: I agree that any headway here is awesome, and absolutely deserving of EFF's victory cry, complete with exclamation point ("Victory! Supreme Court Says Fourth Amendment Applies to Cell Phone Tracking" — read ). We certainly see it as a win, all of us who realize how fundamental the right to privacy is, how essential to innovation and progress, to our evolution and our very survival. We all want to be sure and express our approval, now that something is finally going down correct. I don't seek to undermine that in the least. 

To quote myself (ahem), above, "We wouldn't want to seem ungrateful, now would we."

Lest we sacrifice what little ground we have regained, in the battle over privacy, from the dystopian and totalitarian literal Panopticon that seeks to hasten the completion of its self-appointed task of world domination. For our own security, of course. We did want to remain safe, did we not?

Funny, it looks like the forces threatening us are the same ones offering us protection. For a price. "Sure is a nice right to privacy you got there. Sure would be a shame if something were to, you know, happen to it."

(I would have said, instead of "what little ground we have regained," what little ground they have let us regain, if I was pessimistic, but I am not. Really. I believe technology, information, and creativity will save us, once those who understand these best realize that it is up to them. I should say, once we realize it is up to us. But that is another story.)

Sacrificing truth for the sake of such appreciation would, however, be a bad idea all the way around. The people who need to be appreciated probably already know what is really going on; the people doing the appreciating would not want to seem that foolish; and the people at large — the public — would be worse off than if they had learned nothing at all.

Because thinking you already know something is a really good way to miss finding out that you don't. 

Be seeing you.