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ACLU Fighting Decision in Cell Phone Tracking Case [FEATURE]

special to Drug War Chronicle by investigative journalist Clarence Walker, cwalkerinvestigate@gmail.com

The American Civil Liberties is challenging a federal appeals court ruling that it is legal for the DEA and other law enforcement agencies to track GPS-equipped cell phones without a warrant. The group has filed an amicus brief urging the full 6th US Circuit Court of Appeals to reconsider the ruling of a three-judge panel last month in US v. Skinner, with ACLU attorney Catherine Crump warning that "the Sixth Circuit ruling in August in Melvin Skinner's case undermined the privacy rights of everyone who carries a cell phone."

Melvin Skinner was suspected of being part of a massive marijuana trafficking organization. Without getting a warrant or showing probable cause, the DEA forced Skinner's cell phone company to provide them with his GPS coordinates continuously as they tracked him cross-country for three days. Using that data, they tracked him down in Texas, searched his mobile home, found 1,100 pounds of marijuana, and arrested him on drug charges. Skinner was convicted and then appealed, arguing that the GPS tracking of his cell phone without a warrant violated his Fourth Amendment rights.

"There is no Fourth Amendment violation because Skinner did not have a reasonable expectation of privacy in the data given off by his 'pay-as-you-go' cell phone, the kind of phone called 'burners' that drug dealers often use for business and quickly dispose of," Judge John Rogers wrote in the majority opinion in Skinner. "If a tool is used to transport contraband and it gives off a signal that can be tracked, certainly the police can track the signal." 

A well-known tool of the trade for those in the drug underworld, 'burners' were also popularized by the HBO show The Wire, which hyped the notoriety of the prepaid phones in its series.

Legal experts say if the Sixth Circuit decision stands it would severely undercut the US Supreme Court decision this past January in the case of accused drug dealer Antoine Jones. In US v. Jones, the Supreme Court issued a historic decision prohibiting law enforcement from tracking vehicles with GPS device without first obtaining a search warrant -- a tactic the feds used against Jones case when the FBI and DEA installed a GPS device on his SUV for 28 days.

Jones' life sentence without parole was reversed and he was remanded for retrial scheduled in 2013. The chilling effect of the Supreme Court ruling in the Jones case forced the FBI to pull the plug on 3,000 GPS tracking systems that had been secretly installed on vehicles across the nation.

"While the Jones case imposes constitutional restrictions on law enforcement to track vehicles with warrantless GPS devices, the Sixth Circuit has now held that agents can engage in even more intrusive surveillance of cell phones without implicating the Fourth Amendment at all," the ACLU noted in its brief to the court.

In their efforts to overturn Skinner's lengthy prison sentence, his attorneys argued that the use of the GPS location information in the cell phone that led to his arrest violated the Fourth Amendment prohibition against warrantless searches and seizures. The primary question in the case was whether Skinner had a "reasonable expectation" of privacy in the data that his cell phone emitted.

The Sixth Circuit ruling comes exactly a month after a Congressional inquiry discovered how law enforcement made over 1.3 million requests for cell phone data last year, seeking subscriber information, text messages, location data and calling records. If upheld, it would be a major boost for government surveillance power as state and federal prosecutors shift their focus to warrantless cell-towers to ferret out cell phone data and track the GPS signals in cell phones without a warrant in a bid to get out from under the Supreme Court's ruling in that police cannot use warrantless GPS to track vehicles.

Lawyers and law enforcement officials agree there are too many conflicts over what information the police are entitled to legally get from wireless cell carriers.

"It's terribly confusing, and understandably so, when federal courts can't agree," cell phone industry attorney Michael Sussman told the New York Times earlier this year. The companies "push back" often when confronted with "urgent" requests for cell phone data, he said. "Not every emergency is an emergency."

US 6th Circuit Court of Appeals Judge John Rogers (wikimedia.org)
Without a doubt, cell phone data and GPS signals in cell phones are hot commodities in the surveillance business. Business is booming for wireless carriers who sell customers data and cell phone locations to police either by the hour or for one big fee.(See our May story on the practice and the legal challenges to it here.)

But law enforcement is especially well-placed to take advantage of the data. With a simple judge's order, it can easily obtain reams of data and the GPS location of a target's cell phone without a warrant.

As the Times noted, tracking GPS signals in cell phones has become such a tempting technique that the Iowa City Police Department had to issue a stern warning to officers: "Do not mention to the public or the media about the use of cell technology or equipment used to locate targeted subjects and its use should be kept out of police reports."

Similarly, a 2010 training manual written by California prosecutors informed investigators on "how to get the good stuff" using technology. Another police training manual describes cell phones as "the virtual biographer of our daily activities," providing a hunting ground for learning contacts and travels.

The easy availability of cell phone data could spell big trouble for accused drug dealer Antoine Jones as he prepares for retrial next year. This time around, the feds will not use GPS evidence from his vehicle because the Supreme Court prohibited that in his case last year, but it plans to use Jones' cell phone data and the GPS signal in his phone as evidence to connect him with numerous kilos of cocaine.

On September 4, the Obama administration, citing a 1976 Supreme Court precedent, told the federal judge in Jones case that such data, like banking records, and cell phone records, are "third-party records," which means customers have no right to keep it private.

Jones' attorney, Eduardo Balarezo, disagreed. "The government seeks to do with cell site data what it cannot do with the suppressed GPS data that's already been ruled illegal by the Supreme Court," he argued in his brief in the case.

Jones, who is still behind bars despite his victory at the Supreme Court because the government insists on retrying him, is steadfast.

"I am going to fight this all the way to the end," he told the Chronicle.

Aside from the Fourth Amendment implications of the Skinner decision, the case raises another question: Did the courts misinterpret the arcane federal laws governing electronic surveillance?

Jennifer Granick, director for civil liberties, the Stanford Law School Center for the Internet and Society
A Stanford University attorney who is an expert on the legalities now says even the trial court erroneously applied the wrong "trap and trace" statute in denying to suppress the evidence the DEA used to obtain a court order to track the GPS signal in Skinner's phone.

"It was basically the government's "hybrid theory" of what constituted a legal trace of the phone and the court intrepreted the wrong statute," Jennifer Granick told the Chronicle. "The tracking order the DEA used to track Mr. Skinner's phone was not applied correctly under the statute. Pinging a phone in real time is governed by the Pen Register/Trap and Trace statute. To get a trap and trace order, the government usually needs an order under [the relevant] section."

But as Granick has argued in federal criminal defense seminars, the Communications Assistance for Enforcement Act (CALEA) prohibits use of the pen register authorization to obtain subscriber location information."So, the feds should have gotten a warrant under [a different] rule for this information, but clearly did not," Granick concluded.

The confusion is around whether to apply the Pen Register statute or the Stored Communications Act (SCA). The SCA was used by the judge to authorize the trace on Skinner's phone. Under SCA, police cannot receive the contents of the electronic communication, but, police are allowed to find out "where whom said what."

The advantage for law enforcement, prosecutors and judges in such matters is the fact they often use this reasoning to obtain location data that can easily turn a cell phone into a tracking device without a warrant -- whereas legal experts say it should require a much higher threshold -- like a probable cause warrant.

Granick was surprised to learn the court relied on the SCA instead of the other relevant laws.

"You mean the court authorized real time tracking based on the Stored Communications Act, without even a reference to the Pen Register statute or CALEA?" she asked incredulously. "Well, it's not right, but that's what the court did."

Restrained by the Supreme Court from using warrantless GPS tracking by the Jones case, federal law enforcement and local police are making greater use of cell phone data to track suspects. Whether that is constitutional is still an open question. Federal courts are splitting on the issue of whether the collection of cell phone data and the warrantless tracking information of the GPS signal in a phone is legal. That means the issue is likely headed for the Supreme Court for final resolution.

Meanwhile, it looks like Skinner may have yet another issue to raise on appeal.

Permission to Reprint: This article is licensed under a modified Creative Commons Attribution license.
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Good ole ACLU

At least there's one organization that is still willing to get out there and fight for the mere semblance of our rights.A warrant for crissakes.That should be the minimum requirement.These people think they can look into anything and anyone just because.The trouble isn't that they can get away with it as much as that no one has any time to actually bother themselves about it.We all know the government is still monitoring the internet.Where's the outrage?No one cares.Or if they do they are sure very discreet about it.Everyone should send the ACLU a donation.They sure aren't doing anything else.

ACLU

American Civil Liberties Union.

http://www.aclu.org/

From their site: "The ACLU is our nation's guardian of liberty, working daily in courts, legislatures and communities to defend and preserve the individual rights and liberties that the Constitution and laws of the United States guarantee everyone in this country."

Why the public doesn't seem to care

The history of the world from the industrial revolution onward arguably demonstrates that modernity plays a key role in making humans more concerned with doing rather than being. As classical Greek civilization valued the most reflexive thinking as a form of freedom from natural necessities, contemporary times profoundly involve the individual and its attendant social practices in a restless logic of consumption, competition and engagement that suspends or indefinitely postpones the autonomous capacity of human beings to question and reflect upon the social order and the meaning of social practices.  The fast advancement of the logic of post-industrial societies, the gradual dissolution of alternative models to the capitalist logic and a multitude of other alerting factors pushes forward a globally configured culture of one-dimensional productions of meaning that advances a closure rather than a constant reflexive re-evaluation of cultural/social practices.  Who among us can withstand the onslaught this mechanism brings into being?  From college professors to shop clerks, the machine robs all who fail to take sufficient measures of the ability for reflexive thinking which reaches a sufficiently deep level to effect a meaningful critique of the monoculture. 
 

fourth amendment

 

 

         

Amendment I

Freedoms, Petitions, Assembly

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.Amendment II 

Right to bear arms

 

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

 

Amendment III

Quartering of soldiers

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. 

 

 

Amendment IV

Search and arrest

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. 

 

 

Amendment V

Rights in criminal cases

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

 

 

Amendment VI

Right to a fair trial

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.

 

 

Amendment VII

Rights in civil cases

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

 

 

 

Amendment VIII

Bail, fines, punishment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. 

 

 

 

 

 

Amendment IX

Rights retained by the People

The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. 

 

 

 

Amendment X

States' rights

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. 

 

 

 

 

now reading these and reading what the authorities did that man they did violate his fourth amendment. no where does it state that this amendment does not work unless we have reasonable expectation of privacy. but who cares right know one understands that we the people have the power to change the way the authorities and government loop hole through our amendments and constitution. the people of this country seem to also forget they all work for us so how does that make them authority. if it was not for us they would'nt even get paid  or work. why are we paying them to violate our freedoms that this country is based on.  oh that is right because we dont have expectation of privacy.they dont have expectation of upholding our constitutional rights. the citizens have failed to uphold our position as the power of our country and government. 

 

 

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Prohibitionists are not only

Prohibitionists are not only infantile, their insatiable need to inflict suffering on the rest of us and their greed for both money and power is a threat to every single civic institution of our "once proud and free" nation. Mary J.

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