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Appeals Court Delivers Devastating Blow to Cellphone-Privacy Advocates
The Intercept ^ | May 31, 2016 | By Jenna McLaughlin

Posted on 05/31/2016 4:12:05 PM PDT by Swordmaker

COURTS ACROSS THE COUNTRY are grappling with a key question for the information age: When law enforcement asks a company for cellphone records to track location data in an investigation, is that a search under the Fourth Amendment?

By a 12-3 vote, appellate court judges in Richmond, Virginia on Monday ruled that it is not — and therefore does not require a warrant.

The 4th Circuit Court of Appeals upheld what is known as the third-party doctrine: a legal theory suggesting that consumers who knowingly and willingly surrender information to third parties therefore have “no reasonable expectation of privacy” in that information — regardless of how much information there is, or how revealing it is.

Research clearly shows that cell site location data collected over time can reveal a tremendous amount of personal information — like where you live, where you work, when you travel, who you meet with, who you sleep with. And it’s impossible to make a call without giving up your location to the cellphone company.

“Supreme Court precedent mandates this conclusion,” Judge Diana Motz wrote in the majority opinion. “For the Court has long held that an individual enjoys no Fourth Amendment protection ‘in information he voluntarily turns over to [a] third part[y].’” The quote was from the 1979 Supreme Court case Smith V. Maryland.

The 5th, 6th, and 11th  circuits have reached the same conclusion.

However, there’s been a lot of disagreement within the lower courts and among privacy advocates that the third party doctrine is consistent with the way people live their lives in the digital age — primarily on their cellphones.

A three-judge panel of the 4th Circuit in fact first ruled last August that getting cell-site records in bulk did constitute a search, triggering a warrant requirement. In the case, United States v. Graham, the government obtained 221 days’ worth of records belonging to a robbery suspect in Baltimore.

The panel’s opinion relied heavily on a separate legal theory to come to that conclusion called mosaic theory: The argument that even if one instance of evidence gathering doesn’t count as a search, asking for a large number of data points can eventually amount to one.

For a while, it looked like there might be a split in the lower courts that would require the Supreme Court to reconsider the third party doctrine.

But now that the 4th Circuit has ruled, that seems less likely.

Privacy advocates were disappointed:

The three judges in the minority wrote a strongly worded dissent.

“Only time will tell whether our society will prove capable of preserving age-old privacy protections in this increasingly networked era. But one thing is sure: this Court’s decision today will do nothing to advance that effort. I dissent,” Judge James Wynn wrote, joined by Henry Floyd and Stephanie Thacker.

“This is a sign that lower courts are still following the third-party doctrine,” Orin Kerr, law professor at George Washington University Law School, wrote in an email to The Intercept. “I think the 4th Circuit correctly applied Supreme Court law.  But that doesn’t tell us what the Supreme Court might do.”

While this case “removes the circuit split,” he wrote, a Supreme Court consideration of third-party doctrine issues “will probably happen eventually.”

Nate Wessler, a staff attorney with the American Civil Liberties Union’s Speech, Privacy, and Technology Project, said he remains hopeful.

“In virtually every one of these cases, there have been very strong dissents. That in itself is a very strong message to the Supreme Court,” he said.

He also pointed out that many judges in the majority on these cases have signaled that it may be time for the Supreme Court to revisit the issue. And in several of the appellate cases, judges have called on Congress to do something about it.

Congress is poised to consider the privacy implications of searching stored emails, Wessler said, pointing to popular reform in Congress of the Electronic Communications Privacy Act, which passed the House unanimously, requiring law enforcement to get a warrant to search old emails.

“Hopefully they can muster the same for location information,” he said.



TOPICS: Constitution/Conservatism; Culture/Society; Government; News/Current Events
KEYWORDS: android; appellatecourt; apple; applepinglist; iphone; privacy; smartphones
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1 posted on 05/31/2016 4:12:05 PM PDT by Swordmaker
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To: dayglored; ThunderSleeps; ShadowAce; ~Kim4VRWC's~; 1234; Abundy; Action-America; acoulterfan; ...
4th Circuit Court of Appeals rule that no one has a right to privacy for information they have ceded to their cell phone carriers, including GPS data over time of where they've gone while traveling. All the more why Apple's complete encryption of iOS devices is important! — PING!


4th Circuit Appeals Court Decision &
Apple and the Importance
of End-to-End Encryption
Ping!

The latest Apple/Mac/iOS Pings can be found by searching Keyword "ApplePingList" on FreeRepublic's Search.

If you want on or off the Mac Ping List, Freepmail me

2 posted on 05/31/2016 4:15:29 PM PDT by Swordmaker (This tag line is a Microsoft insult free zone... but if the insults to Mac users continue..)
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To: Swordmaker
Absolute Tyranny, aided and abetted by the Judiciary.

I don't think this "bloodless Revolution" thing is going to work out.

I think we're headed for the other kind...

But Vote Trump in the meanwhile!

3 posted on 05/31/2016 4:16:11 PM PDT by sargon (You're either with Trump, or you're with Hillary.)
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To: Swordmaker
"consumers who knowingly and willingly surrender information to third parties "

Not enough laws can ever be written to protect the stupid.

4 posted on 05/31/2016 4:19:49 PM PDT by mrsmith (Dumb sluts: Lifeblood of the Media, Backbone of the Democrat/RINO Party!)
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To: sargon

I’m not so sure I agree with that. I think there’s a legitimate question about how much “privacy” someone can have when so much of the allegedly “private” information is in the hands of a nameless, faceless corporate bureaucracy that employs tens of thousands of people.


5 posted on 05/31/2016 4:20:05 PM PDT by Alberta's Child ("Sometimes I feel like I've been tied to the whipping post.")
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To: Swordmaker

.
Ready for the “Beast” to arrive on schedule!
.


6 posted on 05/31/2016 4:21:21 PM PDT by editor-surveyor (Freepers: Not as smart as I'd hoped they'd be)
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To: Swordmaker
According to the decision, the appellants were:

ELECTRONIC FRONTIER FOUNDATION; NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS; AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MARYLAND; CENTER FOR DEMOCRACY & TECHNOLOGY; AMERICAN CIVIL LIBERTIES UNION FOUNDATION; DOWNSIZEDC.ORG; DOWNSIZE DC FOUNDATION; GUN OWNERS FOUNDATION; GUN OWNERS OF AMERICA, INC.; INSTITUTE ON THE CONSTITUTION; REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS; UNITED STATES JUSTICE FOUNDATION; CONSERVATIVE LEGAL DEFENSE AND EDUCATION FUND,and Amici Supporting Appellant.

7 posted on 05/31/2016 4:24:52 PM PDT by Swordmaker (This tag line is a Microsoft insult free zone... but if the insults to Mac users continue..)
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To: Alberta's Child

At least it’s not in the hands of the omnipotent government and its myriad agencies.

If it’s considered a “willing” surrender by the consumer, there should be an opt-out clause. I don’t recall seeing any language to that effect in the contract I signed with the cellular service provider.


8 posted on 05/31/2016 4:26:42 PM PDT by FoxInSocks ("Hope is not a course of action." -- M. O'Neal, USMC)
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To: Swordmaker

The immediate remedy is the cell phone will have NO SIGNAL on command!


9 posted on 05/31/2016 4:27:03 PM PDT by WENDLE (RICO!!!)
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To: editor-surveyor

Where’s my durn chip? (Hand extended)


10 posted on 05/31/2016 4:27:11 PM PDT by BipolarBob (I'm so open minded that you should only think like me.)
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To: Swordmaker

Aside from the fact an I phone is a computer with a phone ap, it is first and foremost a radio. It receives and transmits radio signals.

There is no privacy with a signal broadcast on radio waves


11 posted on 05/31/2016 4:31:56 PM PDT by bert ((K.E.; N.P.; GOPc;+12, 73, ....Opabinia can teach us a lot)
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To: Swordmaker

Score one for people like me who don’t carry a cell phone and don’t care if you can reach me or not.


12 posted on 05/31/2016 4:38:01 PM PDT by Rurudyne (Standup Philosopher)
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To: Swordmaker

The sad part is this will work to the advantage of crooks

Just give your cell phone to a friend tell him to drive where ever

Go do what ever evil you want and when it comes up in court your cell phone is your alibi

And some poor stuck who was just driving in the area will go to jail for it because he was there


13 posted on 05/31/2016 4:44:53 PM PDT by mouser (Run the rats out its the only chance we have)
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To: bert

I can attest to the truth of that.
I had a scanner so I could receive transmissions from the fire department I volenteered to serve.
I could pick up and listen to cell phone conversations.

Newt could probably attest to this too


14 posted on 05/31/2016 4:49:31 PM PDT by South Dakota (crazy horse: I shall return again...in stone)
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To: Swordmaker

So, if I were to send a box of sand on a ship or truck they could open every container without warrant?


15 posted on 05/31/2016 4:59:19 PM PDT by Vendome (Don't take life so seriously-you won't live through it anyway - "Enjoy Yourself" ala Louis Prima)
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To: sargon
Absolute Tyranny, aided and abetted by the Judiciary.

As the judiciary is comprised of government workers, I can't say that I am surprised when goverment judges rule in favor of more government.

The judiciary is not comprised of philosopher kings.

#zerogovernment

16 posted on 05/31/2016 5:05:51 PM PDT by bkopto
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To: Swordmaker

a cellphone is a two-way radio.
it is constantly transmitting your location
............

suppose there is an armed robbery.

the cops are going to investigate
every cellphone in the area.
who is not suppose to be there?
anybody could be a lookout.


17 posted on 05/31/2016 5:23:36 PM PDT by RockyTx
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To: Swordmaker

I think those are the Amici, not Appellants (and a more disparate group would be hard to find!). Aaron Graham appears to be the sole Appellant.


18 posted on 05/31/2016 5:39:56 PM PDT by EDINVA
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To: Swordmaker

When I and a few others reviled the PATRIOT act there were folks on FR who said “If you aren’t doing anything wrong, what do you have to worry about”.


19 posted on 05/31/2016 5:42:31 PM PDT by RedStateRocker (Better questions that can't be answered than answers that can't be questioned.)
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To: EDINVA
I think those are the Amici, not Appellants (and a more disparate group would be hard to find!). Aaron Graham appears to be the sole Appellant.

Sorry, you are correct.

20 posted on 05/31/2016 5:51:22 PM PDT by Swordmaker (This tag line is a Microsoft insult free zone... but if the insults to Mac users continue..)
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