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Government can grab cell phone location records without warrant, appeals court says
http://investigations.nbcnews.com ^ | July 30, 2013 | Michael Isikoff

Posted on 07/31/2013 8:20:53 AM PDT by Whenifhow

In a major victory for the Justice Department over privacy advocates, a federal appeals court ruled Tuesday that government agencies can collect records showing the location of an individual's cell phone without obtaining a warrant.

The 2-1 ruling by the 5th Circuit Court of Appeals in New Orleans upheld the Justice Department's argument that "historical" records showing the location of cell phones, gleaned from cell site location towers, are not protected by the Fourth Amendment.

A key basis for the ruling: The use of cell phones is "entirely voluntarily" and therefore individuals who use them have forfeited the right to constitutional protection for records showing where they have been used, the court held.

"The Government does not require a member of the public to own or carry a phone," wrote U.S. Judge Edith Brown Clement in an opinion joined by U.S. Judge Dennis Reavley. The opinion continued: "Because a cell phone user makes a choice to get a phone, to select a particular service provider, and to make a call, and because he knows that call conveys cell site information ... he voluntarily conveys his cell site data each time he makes a call."

(Excerpt) Read more at investigations.nbcnews.com ...


TOPICS: Constitution/Conservatism; Government; News/Current Events; Politics/Elections
KEYWORDS: 4thamendment; cellphone; doj; nsa; privacy; warrant

1 posted on 07/31/2013 8:20:53 AM PDT by Whenifhow
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To: Whenifhow

Nice.


2 posted on 07/31/2013 8:23:11 AM PDT by Still Thinking (Freedom is NOT a loophole!)
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To: Whenifhow
A key basis for the ruling: The use of cell phones is "entirely voluntarily" and therefore individuals who use them have forfeited the right to constitutional protection for records showing where they have been used, the court held.

You've got to be kidding. By the same logic, use of a landline telephone is completely voluntary, and therefore the government can listen in on everyone's phone calls without a warrant.

3 posted on 07/31/2013 8:24:06 AM PDT by Thane_Banquo ( Walker 2016)
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To: Thane_Banquo

Yeah, I thought Health insurance was voluntary too!


4 posted on 07/31/2013 8:24:53 AM PDT by Whenifhow
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To: Whenifhow

That’s as specious as the original argument in Smith vs. VA that we “voluntarily” “give up” the phone number of the person we’re calling, which somehow makes it public property.


5 posted on 07/31/2013 8:26:02 AM PDT by jiggyboy (Ten percent of poll respondents are either lying or insane)
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To: jiggyboy

oops Smith vs MD.


6 posted on 07/31/2013 8:26:26 AM PDT by jiggyboy (Ten percent of poll respondents are either lying or insane)
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To: Whenifhow

If you “voluntarily” write a letter or whisper sweet nothings to your wife this too is unprotected because you did it knowing that the NSA can reach out and touch you where and when they like. Welcome to Amerika.


7 posted on 07/31/2013 8:26:42 AM PDT by jwalsh07
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To: Thane_Banquo
By the same logic, use of a landline telephone is completely voluntary, and therefore the government can listen in on everyone's phone calls without a warrant.

Well said, Thane_Banquo. Apparently, if we voluntarily do anything, we voluntarily throw away our Fourth Amendment rights.

8 posted on 07/31/2013 8:27:01 AM PDT by Standing Wolf
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To: Whenifhow

Let’s see what this means:

The government doesn’t require me to write a letter...
The government doesn’t require me to make a phone call..
The government doesn’t require me to call my lawyer...
The government doesn’t require me to drive a car, take a plane, talk to my family, friends, business associates...

Looks like everything is free game except what the government requires, like my taxes. So anything with the IRS they can’t tap or track.

Oh, wait.


9 posted on 07/31/2013 8:27:49 AM PDT by D-fendr (Deus non alligatur sacramentis sed nos alligamur.)
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To: Whenifhow
The use of cell phones is "entirely voluntarily" and therefore individuals who use them have forfeited the right to constitutional protection for records showing where they have been used, the court held.

Ah, isn't living within a home, the cornerstone of the fourth amendment also voluntary?  Talk about your fuzzy logic...


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10 posted on 07/31/2013 8:36:08 AM PDT by DoughtyOne (Kill the bill... Begin enforcing our current laws, signed by President Ronald Reagan.)
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To: Whenifhow
The use of cell phones is "entirely voluntarily" and therefore individuals who use them have forfeited the right to constitutional protection for records showing where they have been used, the court held.

That is the most idiotic conclusion possible in a privacy case. Carrying a purse or briefcase, is "entirely voluntary" and the government doesn't require you to use them, but it has already been established that the government may not invade the privacy of those items. A cell phone that you carry to facilitate the functions of your employment or private life is no different.

11 posted on 07/31/2013 8:37:22 AM PDT by ElkGroveDan (My tagline is in the shop.)
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To: Whenifhow

Ruling is marginally correct, but the logic is seriously flawed.

Proper logic follows the fact that the cell phone records are property of the telephone company. It is the company’s private property, and if they WANT to give it away, they can. However, since it is private property, if they do NOT WANT to give the records away, a warrant is required.


12 posted on 07/31/2013 8:39:07 AM PDT by taxcontrol
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To: Whenifhow
Just another example of the Judiciary re-interpreting the Constitution that it no longer believes in. One set of laws for us, nary a law or two for them.

Face it, we live in a lawless nation, ruled by the whim of government lords.

13 posted on 07/31/2013 8:40:03 AM PDT by jeffc (The U.S. media are our enemy)
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To: Whenifhow

Can the phone company then sell location information? If there’s no privacy concerns, then it should be able to provide that information to anyone.


14 posted on 07/31/2013 8:40:12 AM PDT by tacticalogic ("Oh, bother!" said Pooh, as he chambered his last round.)
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To: Whenifhow
The NSA needs to work on the Promotional Image!




15 posted on 07/31/2013 8:41:16 AM PDT by MeshugeMikey (Macabre Crumpet of Caucasian Ethnicity)
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To: jeffc

We live in a burgeoning police state, where the elites are increasingly using their powers to prevent any opposition to their tyrannical whims.


16 posted on 07/31/2013 8:44:38 AM PDT by Thane_Banquo ( Walker 2016)
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To: Whenifhow
You've got to be kidding. By the same logic, use of a landline telephone is completely voluntary, and therefore the government can listen in on everyone's phone calls without a warrant.

Owning a landline is completely voluntary, and therefore the government can listen in on anything the microphone picks up whether a call is made or not. And how sure are you that the signal from the microphone can't be picked up over the line?

One place I visited regularly for work had phones with a button in the middle of the handset which physically disconnected the microphone if it wasn't pressed. About five minutes into a phone call your finger would cramp pretty bad.

17 posted on 07/31/2013 8:45:17 AM PDT by KarlInOhio (This message has been recorded but not approved by Obama's StasiNet. Read it at your peril.)
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To: Whenifhow

Does this logic apply to ObamaCare? We do not choose anything associated with it, but they demand all our healthcare records?

Is that constitutional?

Of course not, unless you are Justice Roberts.

FUBO!


18 posted on 07/31/2013 8:45:55 AM PDT by Texas Fossil (Once a Republic, since then a State in the US, but it is Still Texas where I live.)
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To: ElkGroveDan

Yes.. yes.. it is all starting to make sense...NOT!
With this logic, ANYTHING you do is voluntary!
Going to the doctor.. all those HIPAA forms declaring Privacy.. ha ha ha... you are going to the doctor voluntarily!
Those forms are a sham.

Honestly this country has already exceeded the monitoring in
George Orwells’ “1984”!


19 posted on 07/31/2013 8:47:23 AM PDT by Fully Awake DAV (Navy Vet when homosexuality was not tolerated)
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To: Whenifhow

A person’s use of a cell phone is voluntary?

Using a number owned by the subscriber.

Using a device owned by the subscriber.

Using a service that is a private organization, who interconnects to other private organizations, who connect a transmission to a local exchange, who in turn connect the call between two parties.

All the equipment and services are private individuals or entities.

There should be no breach of private communcations except pursuant to 4, 5 and 1 ammendments.


20 posted on 07/31/2013 8:51:01 AM PDT by Vendome (Don't take life so seriously, you won't live through it anyway)
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To: Still Thinking

So fedex your phone to a friend in another city, commit a crime in the other and use your phone location as proof you didn’t commit the crime.


21 posted on 07/31/2013 8:52:35 AM PDT by blackdog (There is no such thing as healing, only a balance between destructive and constructive forces.)
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To: Whenifhow
I'm in the reluctant position of favoring the government's position, though not for reasons the "Justice" department would support, for the same reason that I hold in contempt federal laws banning private monitoring of certain radio frequencies, a ridiculous protection supporting the industry by Congress and its creature, the FCC.

Like television, all these devices are essentially radio transceivers and utilize the electro-magnetic spectrum, and then utilize my immediate environment, including my body, as a collateral conduit for, admittedly, "non-ionizing radiations." The right to filter, amplify and detect their transmissions is inalienable, just as it would be if two people on opposite sides of my house communicated with flashlights through my bedroom.

They can, of course, scramble, randomly jump frequencies, or make cryptic their transmissions, etc., but spurious radiations are fair game.

Wireless phones companies continuously sell the opposite, but there is a fundamental difference between hard-wired channels and radio.

The expectation of privacy when using a cell phone is an illusion.

The issue immediately branches off into more problematic questions, of course, about record keeping and the fundamental differences between a government's enumerated power and those of citizens talented enough to build and operate equipment capable of detecting, filtering and amplifying RF wavelengths.

And that is another story.

22 posted on 07/31/2013 8:53:03 AM PDT by Prospero (Si Deus trucido mihi, ego etiam fides Deus.)
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To: taxcontrol

The records are also the property of the subscriber and should be held to something more than the “The Kings Paper”....


23 posted on 07/31/2013 8:53:27 AM PDT by Vendome (Don't take life so seriously, you won't live through it anyway)
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To: Vendome

You are using logic & common sense..in your interpretation of our great U.S. Constitution & Bill O’ Rights!

Think of everything as opposite!

Think in a twisted, government centric, slave population mentality... then this will make sense.

Think about how the government, operates under the premise that every person is their personal property!


24 posted on 07/31/2013 8:56:11 AM PDT by Fully Awake DAV (Navy Vet when homosexuality was not tolerated)
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To: Thane_Banquo
You've got to be kidding. By the same logic, use of a landline telephone is completely voluntary, and therefore the government can listen in on everyone's phone calls without a warrant.

Interesting though, how the government has to provide them for free because it's an essential need.

25 posted on 07/31/2013 8:59:18 AM PDT by mykroar (China and Russia are playing chess while Obamas's playing 52 card pick-up.)
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To: mykroar

That and the fact that Verizon forced me to get a new phone so they could collect the data they then share with the NSA.


26 posted on 07/31/2013 9:03:59 AM PDT by VRWCarea51
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To: Whenifhow

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. “

The courts are trying to revise what are our papers. At a minimum, electronic records are not the governments records, so they have no rights to them.


27 posted on 07/31/2013 9:05:52 AM PDT by CodeToad (Liberals are bloodsucking ticks. We need to light the matchstick to burn them off. -786 +969)
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To: blackdog


OH OH PERHAPS the NSA needs to retink this one>
..........

28 posted on 07/31/2013 9:05:55 AM PDT by MeshugeMikey (Macabre Crumpet of Caucasian Ethnicity)
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To: Fully Awake DAV

Here is the cold hard truth:

The government feels you are using their equipment and are therefore not entitled to protection under the Bill of Rights.

Under CALEA, passed in 1996, the government invested more than $500 million of taxpayer monies into service providers and equipment makers telling them to make easy and expiditously access to records anytime they make a request.

Kind of like the king putting a watermark on paper and demanding you use but with strict prohibitions and proscriptions.

We are headed down the path of:

“When in the course of human events....”


29 posted on 07/31/2013 9:07:33 AM PDT by Vendome (Don't take life so seriously, you won't live through it anyway)
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To: Vendome

Yes... it is a sad truth!

Such as labelling everyone a potential criminal (yes, sitting here drinking coffee & typing may be violating some law.. which law?)

Or perhaps adding an infant to the no-fly list! (my child broke a law at the advanced age of 11 months..hmmm?)

What is the breaking point?


30 posted on 07/31/2013 9:18:04 AM PDT by Fully Awake DAV (Navy Vet when homosexuality was not tolerated)
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To: Prospero

Exactly. Then the next issue is that we have ALL rights by default, except where otherwise enumerated, while they have NO powers except the listed ones.


31 posted on 07/31/2013 9:26:33 AM PDT by Still Thinking (Freedom is NOT a loophole!)
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To: Thane_Banquo

In other news,
beatings will continue until morale improves.


32 posted on 07/31/2013 9:32:19 AM PDT by TurboZamboni (Marx smelled bad & lived with his parents most his life.)
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To: Whenifhow

I have no words... Need to head over to the sports mans warehouse and get some more target rounds. Keep hoping I will find my stainless steel rifle I had the canoe accident with.


33 posted on 07/31/2013 9:51:22 AM PDT by American in Israel (A wise man's heart directs him to the right, but the foolish mans heart directs him toward the left.)
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To: D-fendr

Hey, if taxes are not voluntary, then I don’t have to give them to the Feds. Whew, glad that’s cleared up.


34 posted on 07/31/2013 9:52:56 AM PDT by American in Israel (A wise man's heart directs him to the right, but the foolish mans heart directs him toward the left.)
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To: Whenifhow
IT is way past time our legislooters put a stop to this crap. The courts have taken the phrase "reasonable expectation of privacy" and twisted it to the point that the only place you actually have said privacy is if you are in your bathroom completely bereft of all electronic devices.

That they haven't made any effort tells us that they are more interested in expanding government power than protecting our rights.

35 posted on 07/31/2013 11:40:34 AM PDT by zeugma (Be a truechimer, not a falseticker!)
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To: Whenifhow

“The use of cell phones is “entirely voluntarily” and therefore individuals who use them have forfeited the right to constitutional protection for records showing where they have been used, the court held.”

Saving money is entirely voluntary, so the gov’t can track my banking information. Using credit/debit cards are entirely voluntary, so the gov’t can track my spending. Watching TV is entirely voluntary, so the gov’t can track my viewing habits.

Every day I participate in thousands of entirely voluntary actions, therefore the government needs to implant a tracking chip to ensure that they can track my activities.

The founders are spinning and the sheeple are bleating away in ignorance.


36 posted on 07/31/2013 11:49:26 AM PDT by CSM (Keeper of the Dave Ramsey Ping list. FReepmail me if you want your beeber stuned.)
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To: Whenifhow; All

“entirely voluntarily”

Nice choice of words!!!

Did you realize that you “Voluntarily” wave your rights as well???

“The rights of the individuals are restricted only to the extent that they have been voluntarily surrendered by the citizenship to the agencies of government.”
City of Dallas v Mitchell, 245 S.W. 944


37 posted on 07/31/2013 12:21:14 PM PDT by phockthis (http://www.supremelaw.org/fedzone11/index.htm ...)
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To: Whenifhow

The gubmint is free to listen to your phone calls and read your emails...since these were not around at the time the 4th Amendment was incorporated, right?

Apparently that’s how The Regime reads it:

Justice Department Expands Hunt for Data on Cellphones
http://bits.blogs.nytimes.com/2012/11/26/justice-department-expands-hunt-for-data-on-cellphones/

Obama’s NSA eavesdropping goes beyond that of Bush... after campaigning on the promise of: “ No warrantless wiretaps if you elect me!”

http://news.cnet.com/8301-10784_3-9845595-7.html

headlines read:” NSA Exceeds Legal Limits In Eavesdropping Program” , “ U.S. phone intercepts go beyond legal limits” , and “NSA Found Improperly Spying on Americans”.

http://online.wsj.com/article/SB123985123667923961.html?mod=googlenews_wsj

http://uk.reuters.com/article/burningIssues/idUKTRE53F09820090416

http://www.foxnews.com/politics/2009/04/15/justice-dept-nsa-improperly-spied-americans/


38 posted on 07/31/2013 7:29:23 PM PDT by TurboZamboni (Marx smelled bad & lived with his parents most his life.)
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