{"id":124869,"date":"2014-06-17T18:20:53","date_gmt":"2014-06-17T18:20:53","guid":{"rendered":"http:\/\/rinf.com\/alt-news\/?p=124869"},"modified":"2014-06-17T18:20:53","modified_gmt":"2014-06-17T18:20:53","slug":"will-telcos-follow-isps-extend-warrant-protection","status":"publish","type":"post","link":"https:\/\/rinf.com\/alt-news\/sicence-technology\/will-telcos-follow-isps-extend-warrant-protection\/","title":{"rendered":"Will Telcos Follow ISPs and Extend Warrant Protection for All?"},"content":{"rendered":"

HANNI FAKHOURY<\/em><\/p>\n

When courts issue new decisions about how law enforcement can obtain records and data from companies, it’s not just the police who have to follow the new rules. The companies that turn over the data have a big role to play in ensuring that the law is followed. A new court decision requiring police to use a\u00a0search warrant in order to obtain cell tracking records underscores the importance phone companies can play in extending important privacy protections throughout the country.<\/p>\n

In\u00a0United States v. Davis<\/em><\/a>, the Eleventh Circuit Court of Appeals\u00a0ruled<\/a>\u00a0last week that because people have a Fourth Amendment expectation of privacy in their location, police need to use a search warrant to obtain cell site location information.\u00a0Davis\u00a0<\/em>is the first case in which a federal appeals court found an expectation of privacy in cell site records, reaching the opposite conclusion of a Fifth Circuit Court of Appeals opinion from\u00a0last year<\/a>. Instead,\u00a0the Eleventh Circuit\u00a0noted “even one point of cell site location data can be within a reasonable expectation of privacy” because people carry cell phones almost anywhere they go, joining the state high courts of\u00a0Massachusetts<\/a>\u00a0and\u00a0New Jersey<\/a>\u00a0in requiring police convince a judge there is probable cause to believe the records will show or lead to evidence of a crime.<\/p>\n

This means that any time state or federal law enforcement within the Eleventh Circuit (Alabama, Florida and Georgia) wants to gather location information from a person’s cell phone, whether by seeking historical or real-time cell site records, requesting a\u00a0tower dump<\/a>\u00a0or using a\u00a0“stingray,”<\/a>\u00a0police need to get a search warrant.<\/p>\n

Even though the decision only applies to federal and state law enforcement in those three southern states, cell phone companies now have a chance to extend\u00a0Davis<\/em>\u00a0beyond the confines of the Eleventh Circuit. When it comes to implementing landmark decisions concerning constitutional rights in the digital age, companies have been in this position before.<\/p>\n

In 2010, the Sixth Circuit Court of Appeals\u2013which only binds law enforcement in Kentucky, Michigan, Ohio and Tennessee\u2013ruled in\u00a0United States v. Warshak<\/a>\u00a0<\/em>that people have an expectation of privacy in the contents of all emails stored with an online service provider, regardless of their age. As a result, law enforcement in those states have to use a search warrant to obtain the contents of emails. Although\u00a0Warshak<\/em>\u00a0only controlled in the Sixth Circuit, many of the largest online communication service providers including Facebook, Google, Apple, Microsoft and Yahoo\u00a0made<\/a>\u00a0Warshak<\/em>\u00a0the rule across the board, and began demanding all law enforcement across the country use a warrant to obtain the contents of electronic communications. As that became the internal policy for the companies, eventually even the Department of Justice\u00a0followed<\/a>, ordering federal prosecutors and law enforcement agents nationwide to use a warrant to obtain emails.<\/p>\n

A uniform approach makes sense. The Fourth Amendment is the law throughout the country, binding both federal and state law enforcement. While states are free to interpret their state constitutions or enact laws that impose stronger legal protections than those in the Fourth Amendment, they cannot provide weaker privacy protections. So, once a federal appeals court issues a ruling that requires state and federal law enforcement in one part of the country to use a warrant, it would be inconsistent to permit officers in other parts of the country to use weaker legal process to get those same records. The Fourth Amendment must mean the same thing everywhere and not vary from state to state; inconsistencies reduce legal protections for some people and tempts officers from a more restrictive jurisdiction to see if their counterparts in a less restrictive jurisdiction can get the records for them instead.<\/p>\n

Today there are clear inconsistencies in the application of the Fourth Amendment to cell tracking. While a police officer in Mississippi can claim that she does not need a warrant to obtain cell site records under the Fifth Circuit’s decision, her counterpart in the neighboring state of Alabama clearly does under\u00a0Davis<\/em>. Instead of waiting for the Supreme Court to resolve this split, right now mobile phone network operators should follow the lead that major communication providers set after\u00a0Warshak<\/em>\u00a0and make\u00a0Davis\u00a0<\/em>the standard nationwide, requiring all law enforcement across the country use a search warrant to obtain cell site location information.<\/p>\n

\"\"<\/p>\n

We already know from the telcos themselves that they release a great deal of location information to law enforcement without a warrant. As the number of requests for location information has steadily increased, both\u00a0AT&T<\/a>\u00a0andVerizon<\/a>\u00a0have publicly explained they provide cell site information pursuant to an order issued under the Stored Communications Act, which does not require a showing of probable cause. In its first ever\u00a0transparency report<\/a>, Verizon noted that 68 percent of the 35,000 demands for cell phone location data in 2013 involved requests through a court order, not a search warrant. After\u00a0Davis<\/em>, the telcos’ practice of turning over location records in response to a mere “order” must end. Instead, to ensure the Fourth Amendment is applied consistently across the country, the telcos should demand police use a search warrant to obtain any data that can reveal a person’s location.<\/p>\n

In the long run\u00a0Davis\u00a0<\/em>not only\u00a0calls into\u00a0question<\/a>\u00a0a whole host of other surveillance programs and practices conducted by the government, but gives the phone companies the same ability email service providers had after\u00a0Warshak<\/em>\u00a0to advance the law and even perhaps get the Department of Justice to change its own internal policies. If the companies truly take their customer’s privacy seriously, they’ll take the opportunity the Eleventh Circuit has given them\u00a0and tell police everywhere to come back with a warrant.<\/p>\n

Reprinted<\/a> with permission<\/p>\n","protected":false},"excerpt":{"rendered":"

HANNI FAKHOURY When courts issue new decisions about how law enforcement can obtain records and data from companies, it’s not just the police who have to follow the new rules. The companies that turn over the data have a big role to play in ensuring that the law is followed. A new court decision requiring […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[487,13],"tags":[],"class_list":{"0":"post-124869","1":"post","2":"type-post","3":"status-publish","4":"format-standard","6":"category-breaking-news","7":"category-sicence-technology"},"_links":{"self":[{"href":"https:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/posts\/124869","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/comments?post=124869"}],"version-history":[{"count":0,"href":"https:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/posts\/124869\/revisions"}],"wp:attachment":[{"href":"https:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/media?parent=124869"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/categories?post=124869"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/tags?post=124869"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}