The US Circuit Court of Appeals in Richmond, Virginia stated that authorities do not need a warrant in order to get a user’s cell phone location data. The court voted 12-3 to overturn a 2015 opinion by a panel made up of three judges. Last month a separate panel also determined that no warrant was needed.
This case is due to a trial in Baltimore dealing with several armed robberies. In that case, two men were convicted after location data was provided by Sprint over the course of 221 days, which included around 29,000 location records.
After the second panel determined that no warrant was required for this information, the defendants’ lawyers in this case requested another hearing in front of the full court. The full court determined that the information is already disclosed to a third party (that third party in this case being Sprint), and as users are “generally aware” that this information is being shared, there is no violation of the 4th Amendment which protects against unreasonable searches. (source)
Privacy is quite a topic of recent conversation. It is my opinion that many do not fully understand our rights when it comes to search warrants. The issues currently surrounding encrypted iPhones with Apple facing off against the FBI have truly muddied the waters.
Let’s first look at what the Fourth Amendment actually states:
“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 qath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
In the most basic of terms, we are protected from searches that have no cause. In order for a search to occur, there must be a warrant, which is very specific as to who, where, and when. For a search to take place with no warrant, there must be probable cause, and this of course is an area where things can sometimes go wrong. Does looking suspicious qualify as probable cause? I don’t think so. Being in the wrong place at the wrong time while looking suspicious? Perhaps. But those are not what these cases have been about.
Dead terrorists who murdered innocents, drug dealers who have pleaded guilty, suspects in murder cases, murder victim’s phones that may hold the key in finding those that committed the heinous deed, and of course phones of suspected child molesters; I believe most of us would agree that these accusations should qualify as probable cause for search warrants.
In speaking to people on the opposite side of the argument than I, I’ve found that all I have spoken to understand that homes, automobiles, work places, and even personal computers are subject to the execution of search warrants. Many of them don’t believe that cell phones should be as well. Still others seem to think that cell phones can be subject to search warrants, however manufacturers shouldn’t be responsible to “hack” their security to make access to this information possible.
To use Tim Cook’s words, there is a dangerous precedent here. The precedent is that Apple, and now others have chosen to develop products which can stand in the way of these warrants being executed, in the name of protecting the user, but this argument does not hold true.
These companies jumping in to the “it’s so secure even we can’t crack it” storyline seem to forget what privacy and security actually mean. I’m not sure if forget is actually the right term for it, as none of these companies have a history that would indicate they ever knew. For far too many years we have seen iOS and Android hacked, with Apple and Google in absolutely no hurry to fix the exploits that laid their operating systems bare. But the argument breaks down even further than the previous apathetic approach employed by these companies.
When speaking of privacy and security in the tech world, it’s always meant one thing: protecting the users from the bad guys. Those that make the products we enjoy, should be working hard to ensure that hackers are not getting access to our devices. They should protect us from viruses, spyware, malware, ransomware, etc. But this doesn’t seem to be the priority. Instead, we are watching as companies ready themselves to fight the government over lawful access, while viruses, spyware, malware and ransomware continue to grow.
Oddly enough, these same companies go to great lengths to collect information on the user for their own profit. From location data, to browsing habits to internet searches, these companies deal in our data, either for their own information to develop their own products, or to sell to advertisers. Users aren’t any better. Each time someone tells me that their information is private and the government should not have access to it, even in a case of a lawful investigation, I ask if they have Facebook. Invariably they state that they do. This proves in an instant that these users are truly not concerned about privacy, as we know Facebook collects info on every aspect of users.
The Fourth Amendment protects us from unreasonable search and seizure, while giving guidelines as to what is reasonable, and how it should be handled. Should commercial companies seeking profit be allowed to make changes to our laws based on their marketing materials? Of course not. And what happens once these companies decide to make products that allow users to evade the laws of the land? Is it unreasonable to expect those companies to make their products able to comply with the laws of the countries they choose to do business within? I don’t believe so. And if they choose to do so anyway, is it reasonable to force the company to make changes to their products so that they are able to comply? I believe so.
I do wonder now, with this case in the can, could it be used to resolve the other cases as they come up? If the cause for this decision is because location data is already shared with the carrier, what of the information on an iPhone? If messages are going through iMessage and the phones are being backed up to iCloud, then this information is already being shared with Apple. This decision may prove to be a major factor in the outcome of future cases.