Free Markets, Free People

Cell Phone Records: “No Reasonable Expectation Of Privacy”

Is there an “expectation of privacy” pertaining to your cell phone’s records?  Or any records held by a third party provider?

The Obama administration is arguing that there isn’t:

In that case, the Obama administration has argued that Americans enjoy no “reasonable expectation of privacy” in their—or at least their cell phones’—whereabouts. U.S. Department of Justice lawyers say that “a customer’s Fourth Amendment rights are not violated when the phone company reveals to the government its own records” that show where a mobile device placed and received calls.

In other words, since the provider keeps the records (not you) as mandated by law, those records belong to them and thus should be open to government inspection without permission from you or a court.

Now, there’s an argument to be made in terms of law enforcement needs. For instance, a series of bank robberies took place over a wide area. Combing the records for cell towers in the area of each robbery allowed law enforcement to narrow it down to two cell phone users who made calls in each area just before the robberies. Good police work. But shouldn’t they have to go before a judge and justify their desire to look at these records? I’m not sure they didn’t, but essentially the Justice Department is trying to argue that such a justification and court order should be unnecessary.

Ironic from an administration that was so strident about opposing warrantless wiretaps.

The question is, should those records be considered private? Jim Harper argues at Cato that those records are the modern equivalent of “papers and effects” protected by the 4th Amendment and that the court has misinterpreted that since 1967.

These holdings were never right, but they grow more wrong with each step forward in modern, connected living. Incredibly deep reservoirs of information are constantly collected by third-party service providers today. Cellular telephone networks pinpoint customers’ locations throughout the day through the movement of their phones. Internet service providers maintain copies of huge swaths of the information that crosses their networks, tied to customer identifiers. Search engines maintain logs of searches that can be correlated to specific computers and usually the individuals that use them. Payment systems record each instance of commerce, and the time and place it occurred. The totality of these records are very, very revealing of people’s lives. They are a window onto each individual’s spiritual nature, feelings, and intellect. They reflect each American’s beliefs, thoughts, emotions, and sensations. They ought to be protected, as they are the modern iteration of our “papers and effects.”

I agree with Harper.  Technology has changed how those records are kept, but they are still private records between the provider and the subscriber – especially since, for the most part, much of the data recorded is gathered without our permission. What I see in the case by the Obama administration is another attempt at government data mining – domestic intelligence – something which Democrats and libertarians were adamantly against when various schemes were uncovered during the Bush administration.

This attempt is subtly different. Instead of just assuming that there is no expectation of privacy and going ahead and demanding the information, the administration is attempting to have the court okay it first. But the result will be the same – unimpeded access by government to your location at any time (as long as you have a cell phone). It is but a short step from there to do what Harper outlines: data mining from various other providers based on the same argument and with this case as precedence. Result: a profile of you containing private data about your movements, spending habits, places visited on the internet, etc that are really none of the government’s business.

Of course, we all know that Big Brother government would never misuse or abuse this information, don’t we?

As Harper concludes, this is an imporant case which needs to be watched closely:

This is a case to watch, as it will help determine whether or not your digital life is an open book to government investigators.

~McQ

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20 Responses to Cell Phone Records: “No Reasonable Expectation Of Privacy”

  • Bush is a Nazi!

    Oh wait…..these were uttered by Obama?

    Nevermind!

  • I had thought that wanting to track movements by cell phones was being compared to being “tailed” by police or undercover police.     Since it’s legal to follow someone physically, the argument was that people didn’t have an expectation of privacy regarding their movements.
     
    Now, really, I can see that argument.   It even makes sense after a fashion.    The police don’t need a warrant to watch your house or follow your car.     This is just another way of following.
     
    But there are practical limits inherent to watching your house or following your car that simply don’t exist when it comes to following you through cell phone records of your location.    Some cell phones have gps’s as well, so you could be tracked even without using the phone, if I understand correctly.
     
    Because this involves a technology that doesn’t have the limitations of needing to assign a real person and prioritize to actual “bad guys” or at least those believed to be “bad guys” or any corrective element of getting found out by your boss that you were watching your ex on the taxpayers dime, there really does need to be some limits imposed.
     
    In the end, about the only thing that protects our privacy is the fact that no one actually cares what we’re doing.     That, and the fact that resources for digging into people’s lives is limited.     Still, it might be time for another Privacy Act to protect an individual’s information, to account for the ability of computers to sift through huge amounts of data, cold searching for anything that can be found.

    • SynovaI had thought that wanting to track movements by cell phones was being compared to being “tailed” by police or undercover police.     Since it’s legal to follow someone physically, the argument was that people didn’t have an expectation of privacy regarding their movements.

      Good point.  I suppose that it’s like the difference between police tailing an actual suspect and tailing random citizens.  One is an understandable and acceptable police practice; the other smacks of a police state.

      SynovaIn the end, about the only thing that protects our privacy is the fact that no one actually cares what we’re doing. 

      I agree.  This is implied when people argue that you shouldn’t be afraid of police / government surveillance “unless you’ve got something to hide”. I’m sorry to say that this argument was commonly used by the right to support the Patriot Act.

      The problem we’ve got is that technology makes it easy for the government to collect and “mine” data in ways that are easily and obviously subject to abuse.  Twenty years ago, the police would have had to assign several officers to keep tabs on one person.  Now, with the right software and databases, a single officer can keep tabs on thousands of people constantly.  Such a thing could be used for good, such as ensuring that convicted pedophiles do not start spending time near schools or playgrounds.  But it could also be used for ill (FBI files, anybody?).

      At any rate, does anybody WANT Big Brother?

      • I agree.  This is implied when people argue that you shouldn’t be afraid of police / government surveillance “unless you’ve got something to hide”. I’m sorry to say that this argument was commonly used by the right to support the Patriot Act.

        It goes way back before that; it was commonly used among the right for searches during the drug wars (in my own experience), as well as for other contraband.

    • “In the end, about the only thing that protects our privacy is the fact that no one actually cares what we’re doing.”
      Once they figure out how to use this data to tax us more, they will care.  For example, in CA there’s a big move to tax people for every mile they drive.  Think having your GPS coordinates 24/7 would help them there?

  • “Deficit of trust” rears its ugly head again.  If we trusted that the government would ONLY look at such records when they had solid suspicions of serious criminal activity, this case wouldn’t be a big deal.  However, we DON’T trust the government.  Damned shame, that.

    Has the DoJ explained why getting a warrant is so onerous a burden that they want to dispense with that little formality?

    McQIronic from an administration that was so strident about opposing warrantless wiretaps.

    And let’s not forget the general leftist hysteria over “privacy rights” when it comes to library cards, sexual acts, and murdering unborn children.

    QUESTIONS – What does “privacy” mean?  Is there or is there not a “right to privacy” in the Constitution?  Is “privacy” an inalienable right at all? 

    • QUESTIONS – What does “privacy” mean?  Is there or is there not a “right to privacy” in the Constitution?  Is “privacy” an inalienable right at all? 

      The Constitution is basically a list of powers that The People  have granted to the Federal government.   The first 10 amendments, Bill of Rights, are an INCOMPLETE listing of Rights that the People retain.   Amnendment IX reinforces this.   SO unless, in the Constitution or any   of the 27 amendments, you can find a place where you have given up your right of privacy by granting the power to the Federal government,  you do have the Unalienable Right of Privacy. 

  • “What I see in the case by the Obama administration is another attempt at government data mining – domestic intelligence – something which Democrats and libertarians were adamantly against when various schemes were uncovered during the Bush administration.”

    The Democrats were never against the intelligence gathering for any other reason than to attack Bush an enlist some ‘independants’ to join them and curry some anti-bush momentum. 

    • Oh, that made me nuts!
      It’s not that I was *for* everything that the Bush administration did, and really, the terms “Patriot Act” and “Homeland Security” were enough to make me shudder… but it was just too much, just far too much, to listen to people suddenly discover concern for privacy that never existed before and now, as we see, has been completely forgotten.  Poof!
      And it was so…  unrelated… to whatever was actually being done, what data was being searched, or what wires were being tapped.
      And *now* we’re supposed to be all fine with TSA workers viewing our folds and dangly bits on account of the information (supposedly) not being recorded?
      This thing with cell phone records… the law opinions may be correct, but the actual right *answer* is that steps need to be taken to protect people from data mining and arbitrary government surveillance.

  • I’m fine with this as soon as location data for all elected officials is available for public view at all times.   I don’t think I’m more important than the president or my Senators or Reperesentative. 

    Fair is fair.

  • I think it’s more analogous to a (no warrant required) pen register.
    The telco always knows what cell you’re in, simply because you’re making a call. Just like they always know what numbers you call (see pen register), by virtue of the fact that it’s necessary in order to make a call. You send both piece of information, necessarily, simply by using the phone to make a call.
    I can’t see expecting either to be a secret from them as reasonable, nor an expectation that either is “private” in the sense of requiring a search warrant to find out.
    (I don’t share Synova’s opposition to “possible data mining”, but I comprehend it and agree it’s not a ridiculous stance to hold. It just isn’t mine.)

    • It’s not a question of whether it’s secret from the telecomm company, but rather whether it’s secret / private from Uncle Sugar.  Consider: your medical history and current health are known to your doctor by virtue of the fact that you told him and he examined you with your consent.  Yet, I think we would all agree that medical records are and should be “private”.  Ditto banking records, anything you tell your lawyer (should you have one), or whatever you tell your minister during confession.

      I suggest that comparing telephone records to a hotel register is a false because, while the hotel register sits out in the open where it is obviously available to anybody who cares to look at it (hence the prevalence of the name “John Smith”!), cel phones are personal items like a wallet, checkbook, address book, diary, etc: other people see it only by permission.

    • It is secret from them in that they’re not a party to the agreement/transaction. They can only find out about it by demanding the information from your provider. In that sense, as DocJim says, it’s not much different than a bank transaction or medical records.

  • Another freedom lost to tyranny.  What’s nxt, authorization of big brother cameras in our homes? It just keep getting worse.

    If u want to read an exciting book (http://www.booksbyoliver.com)  just out, about a small town in America that stands up to federal tyranny & ends up starting the 2nd American Revolution, then I highly recommend this one.  It’s about what’s nxt in 2010 & it could be ur hometown or mine.  Maybe, history is now showing us our destiny in life.

  • What happens when drug dealers, terrorist and Congress-critters get cell phone “sitters” to go around on the opposite side of town ?
    I think it might lead to “full employment”

  • 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.
    Sound familiar?