Third Circuit Hears Oral Arguments Over Cell-Phone Tracking

Update: Good recap of oral arguments with quotes here.

Bump and Update: Reports are coming in on the oral arguments held this morning in the Third Circuit Court of Appeals over whether the Government can get cell phone companies to turn over data showing the location of a cell phone without first obtaining a court order establishing probable cause.

Judge Dolores Sloviter, one of a three-judge panel, told Eckenwiler the government's case raised questions about the government's rights to track individuals.

"There are governments in the world that would like to know where some of their people are or have been," she said, citing Iran as a government that monitors political meetings. "Wouldn't the government find it useful if it could get that information without showing probable cause? Don't we have to be concerned about that?"


Original Post 2/11/10: Oral Arguments in Cell Site Locator Case Moved to Friday

The long awaited oral arguments in the Third Circuit over whether the Government must make a probable cause showing to get your cell site locator information has been moved to Friday at 9:30 a.m.

This case is a big deal. The Third Circuit is the first federal appeals court to decide the issue. I have motions to suppress pending in several cases that will be affected by the outcome.

The core of the argument is that the disclosure of cell site information turns a mobile telephone into a "tracking device" and disclosure may not be authorized without a showing of probable cause. The Government has been seeking (and in many cases courts have granted) the information based on the lesser standard of simply alleging the information will be relevant and helpful to an investigation. Some magistrate judges around the country rejected the requests (example here), and it's now before the Third Circuit.

Cell site data provides the location of the cell phone tower supplying service to a cell phone during a telephone call. It can be obtained from the cell phone service provider within a few seconds of the call.

Geo-location information provides the location of a cell phone within several hundred meters. In providing the information to the Government, cell phone companies are informing it of the specific location of a phone at a particular time.

The case is In the Matter of the Application of the United States of America for an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government and the District Court opinion is at 534 F. Supp. 2d 585 (W.D. PA. 2008.) You can read it here. The District Court affirmed the Magistrate's order finding probable cause was necessary. The Amicus brief of EFF and the ACLU and other groups is here.

In some cases, the Government asks for cell site location data not just of the phone it is investigating, but for all numbers dialed to and from the phone. That could be anyone.

For updates tomorrow, head over to EFF.org.

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    Interesting live blog (5.00 / 1) (#12)
    by scribe on Sat Feb 13, 2010 at 11:33:19 AM EST
    This should be settled by Legislation (none / 0) (#1)
    by Ben Masel on Fri Feb 12, 2010 at 11:14:57 AM EST
    A "Location Privacy Act" amending the Wiretap Act.

    Reps Nadler and Baldwin are interested.

    The main issue before the court (none / 0) (#14)
    by Peter G on Sat Feb 13, 2010 at 01:05:04 PM EST
    is what the present legislation means and how much privacy it protects.  If the ruling if unfavorable, you make a good point, Ben, that the legislation can be amended and tightened up.  Congress can always decide, by legislation, to protect individual rights more sympathetically than the minimum level guaranteed by the Constitution.  Congress just can't provide less protection, nor can any state.

    Present statutes don't touch the question (none / 0) (#17)
    by Ben Masel on Sat Feb 13, 2010 at 02:08:14 PM EST
    so the Courts are only dealing with the 4th Amendment analysis, or, for State Courts, such privacy language as may be found in the State Constitution.

    any new Statutes should address not just law enforcement access, but also when this data may be subpoenaed in civil actions, with particular attention to domestic abuse situations. Also, when employers may get the data. I'd allow that only when the employer provides the phone, pays the bill, gives notice, and only for hours when the employee is getting paid. A bit trickier with salaried employees, I'm open to ideas on how to tweak that.


    You may be right, Ben, (none / 0) (#19)
    by Peter G on Sat Feb 13, 2010 at 02:25:54 PM EST
    or you may not.  Listen to the audio of the argument, or read Prof. Orin Kerr's commentary upon listening to it, linked here and at the top comment on this thread.  (He's a lot more conservative than I am, so I am not necessarily endorsing his analysis that he includes along the way.)  The federal judges hearing the argument don't necessarily agree with you, and they're the ones with the robes and the power to decide.

    18 USC 2703 (none / 0) (#24)
    by Ben Masel on Sat Feb 13, 2010 at 06:54:47 PM EST
    Required disclosure of customer communications or records

    (c)(2) A provider of electronic communication service or remote computing service shall disclose to a governmental entity the--
    (A) name;
    (B) address;
    (C) local and long distance telephone connection records, or records of session times and durations;
    (D) length of service (including start date) and types of service utilized;
    (E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and
    (F) means and source of payment for such service (including any credit card or bank account number),
    of a subscriber to or customer of such service when the governmental entity uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena or any means available under paragraph (1).

    I read "address' to refer to the billing address, not the trace of whereabouts.

    I attended a workshop on location privacy at the 2005 Computers, Freedom, and Privacy CFonference ( http://cfp.org ), with Kerr, Bankston, and several telco lawyer/lobbyinsts on the panel. The telco guys gasped when I mentioned that i'd found a Wisconsin State legislator interested in introducing a bill. The LAST thing they wanted was to have to navigate 50 different legal environments, suggesting such a prospect would leave them much more open to new Federal Statutes, which everyone in attendence seemed to think would eventually happen anyway.

    My guy in the legislature decided to hold off, I'm going to try again with him next week.


    Could we split the difference? (none / 0) (#2)
    by jimakaPPJ on Fri Feb 12, 2010 at 05:58:40 PM EST
    I think most people would say that it is legitimate for the police to say, "Where is this cellphone now because there is a crime in progress." But it is not proper for them to say, "Where was this cellphone on this date," without a warrant.

    jim, I think (none / 0) (#4)
    by jeffinalabama on Fri Feb 12, 2010 at 08:02:03 PM EST
    this is Constitutional. I understand what you're saying, abd I think even the decisions by the supreme court recognize the immediacy issue. Now, I'm not a lawyer, so don't go there on me.

    I think what you've said, there's a crime in progress, is one thing. But let's say you sau, n a fit of frustration, on the cell phone "I wanna beat the snot out of that (expeteve deleted)." That could be conspiracy. should your phone be tracked?

    there's not an easy answer. I can agree, as a person, with what you say, but the constitution might disagree with us both.

    I'm on the side of not allowing the government more privileges.


    Thanks to info from Ben Masel (none / 0) (#3)
    by caseyOR on Fri Feb 12, 2010 at 06:34:26 PM EST
    I now know that keeping my cell phone turned off is not protection enough. When I yearn to run free I now remove the phone's battery.

    Knowing that the battery must be out to make the phone untrackable has kept me from buying an iphone. Maybe that's not a bad thing.

    From a technical (none / 0) (#7)
    by jimakaPPJ on Fri Feb 12, 2010 at 09:07:38 PM EST
    viewpoint I'm not sure.

    We have two states here. The first is a simple on-off. When it is off it cannot receive incoming calls because the network doesn't know where it is. When it is on it broadcasts an ID signal that says who it is and where it is in the network so that it can receive incoming calls.

    We can say the phone is OUT OF SERVICE when it is turned off and IN SERVICE when it is turned on.

    I don't think the network designers would want a phone that has been turned off and OUT OF SERVICE to be part of the network because that would say that the network is engineered for 100% availability and it is not. So I can't see it broadcasting an ID signal. Without that it can't be tracked.

    It is broadcasting an ID signal when it is IN SERVICE because the system must know what cell tower it is connected to to receive incoming calls.

    When it has rec'd an incoming call or made an outgoing call it is IN USE and the system knows where it is and records the location as part of the billing software. When the call is complete and the parties hang up then it is OUT OF USE but continues to broadcast the ID signal because it is IN SERVICE.

    Now, do the cell phone companies keep a record of where an IN SERVICE but NOT IN USE cell phone is or has been? I don't know about now but not in early systems. (Think of the software and memory for say 10 million subscribers.) Could someone ask for this information on a single phone? Yes. No problem.

    So I'm guessing that the request is for the billing record of where a cell phone was when a call was made/rec'd. Not a record of where the cell phone was when NOT IN USE.

    But if you had a crime in progress I can see the cell company being able to tell the police the cell tower location that the phone is assigned to.


    Nice job refining the terminology, but (none / 0) (#8)
    by Ben Masel on Fri Feb 12, 2010 at 10:22:10 PM EST
    your speculation on what's stored is out of date.

    The earliest case I'm aware of location records entering a courtroom stems from election Day 2004, the guys who slashed the tires of Republican get out the vote vans on Milwaukee's north side. After the 5 defendants testified they'd been asleep on the South Side, thew prosecution sought to introduce tracking recotrds for the cellphones of 4, who quickly took plea deals. The 5th defendant , who didn't own a cellphone, then continued the trial, and was acquitted by the jury.

    Unless all 4 stopped to make calls, at 5 AM, just before the operation, this would have been data gathered from phiones ON/NOT IN USE.


    Interesting (none / 0) (#9)
    by jimakaPPJ on Sat Feb 13, 2010 at 09:14:13 AM EST
    My main thrust was that nothing is stored if the phone is turned OFF because no ID signal is being transmitted.

    But, unless the prosecution was bluffing, it appears that their phone company did in fact store the location. Since the actual location is limited to the cell tower location used, unless the phone company had E911 capabilities, then that alone would be enough to wipe out their alibi.

    Here's a link to Snopes with some additional information.


    3 phases of E-911 (none / 0) (#13)
    by Ben Masel on Sat Feb 13, 2010 at 12:05:45 PM EST
    When the law was passed, it mandated, initially, that the cellcos know what towers can reach a given phone, but by the time of this incident Milwaukee had phase 2, which used relative signal stregnth to  each of the 3 faces of the tower for a better fix, such that the prosecution claimed they could put the defendants within "2 blocks" of the crime. All phones sold now are  Phase 3, using GPS to get to within 30 feet. When GPS is turned off, or with an older phone, the tracking reverts to phase 2.

    Phase 2 is least accurate in isolated rural areas with fewer towers, and in built up downtowns where reflections from tall buildings can confuse the system, best in lowrise portions of cities and suburbs where they claim accuracy to 150 feet.


    Well, if we can believe (none / 0) (#16)
    by jimakaPPJ on Sat Feb 13, 2010 at 01:56:16 PM EST
    the Verizon info on Snopes, the GPS info is not turned on unless 911 is dialed from the phone. Unanswered is when Phase 2 is turned on and how.

    Also still unanswered is if any signal is sent from the phone when it has been turned OFF and is NOT IN SERVICE.


    This MAY depend on the specific model (none / 0) (#18)
    by Ben Masel on Sat Feb 13, 2010 at 02:10:10 PM EST
    of phone, rather than the carrier.

    New models should all meet the same (none / 0) (#20)
    by jimakaPPJ on Sat Feb 13, 2010 at 03:13:29 PM EST

    I think I will call some old friends who are still in telcom.. at least three haven't retired... and see what the tech deal is.

    I'll leave the lawyering to you folks.


    Easy enough to test a specific phone. (none / 0) (#25)
    by Ben Masel on Sat Feb 13, 2010 at 06:57:37 PM EST
    Leave it "off" for a few days, see how much the battery runs down. I don't own one myself.

    Tell that to Jack McCoy (none / 0) (#15)
    by jimakaPPJ on Sat Feb 13, 2010 at 01:26:13 PM EST

    You're kidding me ;-) (none / 0) (#22)
    by jimakaPPJ on Sat Feb 13, 2010 at 06:23:24 PM EST
    Maybe I need to figure out a tongue in cheek
    expression.... ;-().... >:)..... /:-)

    Are you SURE about McCoy??



    Makes me re-think some things, (none / 0) (#5)
    by jeffinalabama on Fri Feb 12, 2010 at 08:03:39 PM EST
    alluded to in my post to jim. I might just leave the cell at home, just like the old fashioned phones.

    Get a pager for emergancy contact (none / 0) (#10)
    by jimakaPPJ on Sat Feb 13, 2010 at 09:15:02 AM EST
    Should the telco even store the location history? (none / 0) (#6)
    by Ben Masel on Fri Feb 12, 2010 at 08:55:09 PM EST
    The E-911 legislation, mandating location capability for rescue was passed in the late '90s, requires that the company locate calls so that emergency responders can find you in realtime, when you want them to.

    The system as built out (with taxpayer help from the States federally mandated) the recordkeeping was built in.

    An optimal location privacy law would give the customer at least an opt-out on long-term retention. it only takes the last couple fixes to get a vector with which to find you in the here and now.