Supreme Court Rules Police Need Warrants to Obtain a User's Smartphone Location Data

[bradl]

Ah, okay, I understand what you are saying.

No, I don't think you can refuse the warrant based on the 5th Amendment. I mean, I would try to do that and I think it's a cognizable argument, but I don't think it would win.

If a cop comes to you and says "ha! Warrant! I want to search you phone!" and you say "ha! 5th Amendment! No you can't!" I don't think that is a winning argument.

Exactly. That's why while I think this ruling is great, for some circumstances it does kick the can down the road so that the next big court case regarding this decides that issue. Again, I think that this is great, but I wonder if they will be revisiting the 5A with relation to fingerprints again.

BL.

 

[usarioclave]

Hope you're not into any kind of criminal activity because you should be aware that any device that connects to the internet can have its location exposed.

One thing that you theoretically could do before this ruling is track burner phones; you can just get all the location records and look for sites with a whole lot of activations or usage of those phones, operating on a short term. Technically it's not difficult to do. I'd wager that most people who use burner phones don't move every day, so you could narrow them down if you tried.

You'd have to look at the data and massage it a bit, but burner phones should stick out. You could also get the complete data set and strip out all the phones that have been active for more than X days.

The government could still do this using anonymized data provided by the telcos, I suppose.

 

[KPOM]

Because all of the liberal justices voted for it and all the conservative justices voted against it, basically.

Conservatives tend to favour a strong state with regards to policing, and so liberal justices take a broader interpretation of the Constitution's 4th and 14th Amendments with regards to searches, seizures and privacy. Obviously hugely oversimplifying here.

But conservative justices also tend to view enumerated powers more narrowly.

The decisions over the last 2 days have had odd mixes. In one case Kagan wrote a 6-3 opinion joined by all the conservatives. Today Thomas wrote a 7-2 opinion to which Gorsuch, joined by Breyer dissented. The sales tax case was all the conservatives except Roberts, joined by Ginsburg.

 

[jimothyGator]

Exactly. That's why while I think this ruling is great, for some circumstances it does kick the can down the road so that the next big court case regarding this decides that issue. Again, I think that this is great, but I wonder if they will be revisiting the 5A with relation to fingerprints again.

My first thought was that a warrant could require you to surrender your phone for search, but not compel you to give your password. That was the ruling in Virginia v. Baust (2014), which was argued on 5th amendment grounds. This was decided by a Virginia circuit court, so it's jurisdiction is limited there.

In the case of Florida v. Stahl (2016), the Florida Court of appeals judge reached the opposite conclusion: a defendant could be ordered to give his or her passcode. This case was also argued on Fifth Amendment grounds.

The U.S. Supreme Court case, Riley v. California (2014) doesn't solve this contradiction, because it dealt with the Fourth Amendment rather than the Fifth.

So the answer, for now, appears to be: we don't know. There's not yet a nation wide decision, but if you're accused of a crime and your phone might hold evidence against you, you're probably better off in Virginia than Florida.

 

[mabhatter]

I wonder how long before Apple offers the ability to delete your location data, using a method similar to how you can clear your browser history.

That’s kept by phone companies for billing.

Reading into the way the Court judges these things I think the prosecution overextended their welcome. If that much info was turned over, then the police were probably using the “free location request” periodically as an ongoing investigation. Courts are pretty consistent that you need a warrant for ongoing investigations.

The idea that location data was not subject to warrant WAS THE CONCESSION of the Court for looking backward immediately after a crime was committed due to emergency/security needs. Clearly these prosecutors overextended the power allowed and the Court took it as the last straw. So they blew it for everyone. Don’t blame the Court, blame the repeated overreach of the police and prosecutors for getting cut off.

 

[JimmyHook]

Another 'liberal' case where Roberts sided for.

The Court could soon take a liberal turn if Roberts continues on his current trajectory, unless a liberal justice retires during Trump's presidency.

Liberal???? How so??? If the founding fathers knew we would be walking around with tracking devices in our pockets they’d add even more clarity to the 4th. They favored liberty over government surveillance.
[doublepost=1529717804][/doublepost]

Because all of the liberal justices voted for it and all the conservative justices voted against it, basically.

Conservatives tend to favour a strong state with regards to policing, and so liberal justices take a broader interpretation of the Constitution's 4th and 14th Amendments with regards to searches, seizures and privacy. Obviously hugely oversimplifying here.

That concept of “liberal” and “conservative” justices is something the media uses to oversimplify their thinking. They are jurists, each with slightly different philosophies.

 

[Romey-Rome]

I'm shocked this isn't a 9-0 slam dunk with a poster for it... how can we be so vocal about the 2nd Amendment, or the 1st... and not be equally as loud for the 4th? "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated"........... come on now.

It’s cell phone tower data, which is more “proximity” data - not pin-point GPS data. Which I’m kind of “meh” on. I can see it both ways.

 

[miniyou64]

From the start, this should have ALWAYS required a warrant.

Does anyone here realize how incredibly easy it is to get a warrant?

 

[zantafio]

Now if only some hackers could get their hands on the location data of the four justices who voted against and publish that....

 

[KPOM]

Liberal???? How so??? If the founding fathers knew we would be walking around with tracking devices in our pockets they’d add even more clarity to the 4th. They favored liberty over government surveillance.
[doublepost=1529717804][/doublepost]


That concept of “liberal” and “conservative” justices is something the media uses to oversimplify their thinking. They are jurists, each with slightly different philosophies.

Justice Gorsuch’s dissent is actually the most radical defense of the 4th amendment. Had the Court adopted his view, any information in which you have a property interest in could potentially be protected, even if you disclosed or entrusted it to a third party. His dissent is worth a read.

 

[AdonisSMU]

Because all of the liberal justices voted for it and all the conservative justices voted against it, basically.

Conservatives tend to favour a strong state with regards to policing, and so liberal justices take a broader interpretation of the Constitution's 4th and 14th Amendments with regards to searches, seizures and privacy. Obviously hugely oversimplifying here.

Listening to conservatives youd think they hated the idea of a police state.
[doublepost=1529758658][/doublepost]

It's really not common sense.

Here is the 4th Amendment:

"The right of the people to be secure in their persons, houses, papers, and effects,[a] 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 (emphasis added).

The GPS location data does not belong to you. It belongs to the carrier. Therefore, the 4th Amendment is not applicable.

I happen to like the outcome, but I don't like how they arrived at it and I do not feel what happened to this Petitioner was a 4th Amendment violation.

Unless other lawyers on this forum want to get into the weeds re: constitutional interpretation, I'd transition my criticism of the decision to the idea of privacy rights in general in the digital age.

We really need constitutional amendments to deal with these issues. Trying to shoehorn them into a 230 year old + document is a fool's errand.

as another person pointed out... it clearly says persons, houses and effects. In this case effects is definitely the location data.

 

[Glockworkorange]

Listening to conservatives youd think they hated the idea of a police state.
[doublepost=1529758658][/doublepost]
as another person pointed out... it clearly says persons, houses and effects. In this case effects is definitely the location data.

The concept of location data was not a person, place or effect at the time of the founding. It's not even a concept they would we aware of and there is no analogy to the physical world (as there is with say, email, which didn't exist at the time but is clearly protected by the First Amendment).

This is the originalist position. If you want to have that debate, sure. In any event, this is why I suggested a constitutional amendment for these issues.

 

[AZ63]

And the Supreme Court shouldn’t be making law. That’s the legislative branch’s job not the judicial branch’s. There is a great NPR podcast, More Perfect, on why and how the Supreme Court began setting legal precedence and is being abused.

Which episode do you think applies most here?

 

[Glockworkorange]

Exactly. That's why while I think this ruling is great, for some circumstances it does kick the can down the road so that the next big court case regarding this decides that issue. Again, I think that this is great, but I wonder if they will be revisiting the 5A with relation to fingerprints again.

BL.

The more I think about this, the more I feel the 5th Amendment argument is not very strong. Providing your name, fingerprint or passcode does not equate to compelling you to be a witness against yourself.

I think the better analogy is a fingerprint or pass code is a key. Basically, law enforcement is asking you to open the doorway to the "papers and effects" stored on your phone, which would implicate the Fourth, not the Fifth, Amendment.

A good lawyer will argue both but I really feel the compelled unlock of a phone is a Fourth Amendment issue.

And yes I know some courts have come to a different conclusion under various state constitutions.

 

[slimtastic]

Does anyone here realize how incredibly easy it is to get a warrant?

Depends on the circumstance and the judge.

 

[Weaselboy]

Which episode do you think applies most here?

https://www.npr.org/podcasts/481105292/more-perfect

JUNE 10, 2016
The Political Thicket

If you scroll down, I suspect @QuarterSwede means this episode. It talks about a 1962 case where the court got involved in a redistricting issue that previously they would have avoided and left up to the legislature. Interesting podcast no matter your politics.

 

[827538]

I disagree with your proposition that this was a liberal decision. As a fairly conservative guy, I believe that the decision represented a clear victory for the 4th amendment. I do not think that the supreme court can or should make decisions that conflict with the constitution. If you don't like what the constitution says, there is a process to amend it.

IMHO, the 4th amendment is black and white clear in this case:
"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."

My phone is one of my "effects" that is constitutionally protected. The data within my phone (or that is generated by use of my phone) is also protected as it is an integral part of my effect (my phone).

I completely agree as a conservative Brit with an American wife.

It's scary how certain parts of the constitution are walked all over.
Privacy is a key component of a free and civilised society, it's not up for interpretation or to be ignored because it's inconvenient. 9/11 changed the US for the worse, the goal of terrorism was to erode the freedoms and ideas that make the USA so great, in that respect they won. It was never meant to defeat the USA which is impossible.

Just be glad you aren't in the UK, it's becoming quite scary how quickly the government is eroding what perceived rights and freedoms we have. Look at the disgusting attacks by the state on free speech - they brand it 'hate speech' and all of a sudden you are in court for a tweet or youtube video - terrifying.

The UK badly needs a bill of rights of some sort.

 

[truthertech]

x
[doublepost=1529771147][/doublepost]*Editor-- This article needs some major corrections. The article is misreporting the facts as it suggests that Apple turned over data from the suspects' cell phones. Instead, The data came from the cell phone providers! It's from the location data that cell phone companies have from the cell phone towers your phone hits on, which until this case, the Court had ruled you didn't have a reasonable expectation of privacy in since you were revealing it to the cell phone companies.

 

[ThunderSkunk]

But I trust the government completely to have total authority and control and access to every intimate detail of my life.
How will I feel safe if Big Brother isn't watching out for me protecting me from all the scary people I see on the news every day?

Look how fast the big government authoritarians change sides.

 

[Glockworkorange]

I completely agree as a conservative Brit with an American wife.

It's scary how certain parts of the constitution are walked all over.
Privacy is a key component of a free and civilised society, it's not up for interpretation or to be ignored because it's inconvenient. 9/11 changed the US for the worse, the goal of terrorism was to erode the freedoms and ideas that make the USA so great, in that respect they won. It was never meant to defeat the USA which is impossible.

Just be glad you aren't in the UK, it's becoming quite scary how quickly the government is eroding what perceived rights and freedoms we have. Look at the disgusting attacks by the state on free speech - they brand it 'hate speech' and all of a sudden you are in court for a tweet or youtube video - terrifying.

The UK badly needs a bill of rights of some sort.

The UK (and Europe in general) is a dumpster fire when it comes to the idea of “freedom.” Any country that can and does criminalize the content of speech is not truly free, even if the speech is abhorrent.

 

[AsherN]

The more I think about this, the more I feel the 5th Amendment argument is not very strong. Providing your name, fingerprint or passcode does not equate to compelling you to be a witness against yourself.

I think the better analogy is a fingerprint or pass code is a key. Basically, law enforcement is asking you to open the doorway to the "papers and effects" stored on your phone, which would implicate the Fourth, not the Fifth, Amendment.

A good lawyer will argue both but I really feel the compelled unlock of a phone is a Fourth Amendment issue.

And yes I know some courts have come to a different conclusion under various state constitutions.

It looks like it hinges on the principle that the 5th protects you against giving testimony that can incriminate yourself. And the interpretation is that saying or writing down your password is giving testimony because it is giving information that does not exists in the physical realm. Where a fingerprint for touch ID does not require you to divulge information.

 

[827538]

The UK (and Europe in general) is a dumpster fire when it comes to the idea of “freedom.” Any country that can and does criminalize the content of speech is not truly free, even if the speech is abhorrent.

I agree and its almost universally those on the left that are against free speech - even although they'd never admit that. They are fine with free speech so long as it stays within their narrow band of 'acceptable speech'. I saw this time and time again when I talked to people at university, they'd be all for free speech except when it's what they call 'hate speech' which is a codeword for 'anything I don't agree with'.
Oh and the Tories, they have absolutely no respect for privacy and free speech - this is coming from a previous Tory voter.

But the majority of British conservative and libertarian voters are very much in favour of free speech laws.

You may not like it, but people should have a right to say what they want, even if it's what someone else may class as hateful. They are still responsible for what they say and not free from the repercussions of what they say - but they should always be free to say it.

I think the recent attacks on Tommy Robinson and Mark Meecham (Count Dankula) really opened up a lot of people's eyes to the state of the UK.

 

[Tech198]

"but only when it's related to the user's location data"

aw, that sux. I dunno why this is even a case at the Supreme court, when their are other ways to get at Location data, Anything is, if its not on the phone *only*, but governments must always go the 'indirect' route first via users. When we all know they don' t need permission, its just a waste of time anyway, because if you say "no", they'll get it anyway...

Therefore, the first step is un-necessery. It always "sounds" better knowing it 'helps' privacy as theye'd be an outbreak overnight if users started receiving letters from the government in the mail with no permission from the user at all..

Still, its always good knowing they are trying to excise their 'right" in law (Even if it is a useless one)

 

[Newtons Apple]

Our government has already demonstrated that it will do as it wants no matter what the laws restrict.

Every police department owns a StingRay device and they will not be giving it up.

 

[eltoslightfoot]

Are they though? The Patriot Act, amongst others proves that they aren't.

Patriot Act is horrible, however at this point Congress and Presidents from both sides have renewed it so many times it’s on both. In fact, it was overwhelmingly passed by both sides in the first place.

It has been depressing to watch Obama’s ambivalence in the Patriot Act, and that has been continued by Trump.
[doublepost=1529845818][/doublepost]

The UK (and Europe in general) is a dumpster fire when it comes to the idea of “freedom.” Any country that can and does criminalize the content of speech is not truly free, even if the speech is abhorrent.

Especially if the speech is abhorrent.