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Last Tuesday, the 6th Circuit Court of Appeals (in Ohio) upheld a lower court conviction in United States v. Skinner, ruling that warrantless “tracking [of] suspected criminals by their cell phones is similar to tailing their car or tracking their scent with police dogs.”

From Mike Ludwig, over at truthout.org

…Civil liberties groups say the broad ruling, handed down by the Sixth Circuit Court of Appeals in Ohio, could have sweeping impacts on the Fourth Amendment privacy rights of the innocent as well as those suspected of crimes.

The case involves alleged marijuana trafficker Melvin Skinner, who was busted with 1,100 pounds of pot after a complicated Drug Enforcement Administration (DEA) investigation that involved tracking Skinner's movements by his prepaid cell phone for three days. To track Skinner, the DEA obtained various forms of cell phone data, including cell site information, GPS real-time location data and "ping" data.

Agents gathered Skinner's cell phone information and tracked him without a search warrant and instead obtained a court order that did not meet the probable cause standard of most search warrants. The American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) filed briefs in similar cases arguing that warrantless cell phone tracking and data access violates the Fourth Amendment, which protects citizens against unreasonable search and seizure without probable cause…

… Translation: because cell phones can be used to commit crimes, the Fourth Amendment does not protect cell phone privacy. The civil liberties groups disagree and worry that the judges, eager to catch an obvious criminal, have set a dangerous precedent for everyone else.

"The mere fact that the police are capable of tracking someone doesn't mean they're entitled to do so without first getting a warrant, any more than the mere fact that it's easy to break down someone's front door or open their postal mail gives the police the right to take these steps without a warrant," said ACLU staff attorney Catherine Crump…

Here’s a link to the 6th Circuit Court of Appeals’ decision, and an excerpt from it…

…When criminals use modern technological devices to carry out criminal acts and to reduce the possibility of detection, they can hardly complain when the police take advantage of the inherent characteristics of those very devices to catch them. This is not a case in which the government secretly placed a tracking device in someone’s car. The drug runners in this case used pay-as-you-go (and thus presumably more difficult to trace) cell phones to communicate during the crosscountry shipment of drugs. Unfortunately for the drug runners, the phones were trackable in a way they may not have suspected. The Constitution, however, does not protect their erroneous expectations regarding the undetectability of their modern tools.

The government used data emanating from Melvin Skinner’s pay-as-you-go cell phone to determine its real-time location. This information was used to establish Skinner’s location as he transported drugs along public thoroughfares between Arizona and Tennessee. As a result of tracking the cell phone, DEA agents located Skinner and his son at a rest stop near Abilene, Texas, with a motorhome filled with over 1,100 pounds of marijuana. The district court denied Skinner’s motion to suppress all evidence obtained as a result of the search of his vehicle, and Skinner was later convicted of two counts related to drug trafficking and one count of conspiracy to commit money laundering. The convictions must be upheld as there was no Fourth Amendment violation, and Skinner’s other arguments on appeal lack merit. In short, Skinner did not have a reasonable expectation of privacy in the data emanating from his cell phone that showed its location…

…While the cell site information aided the police in determining Skinner’s location, that same information could have been obtained through visual surveillance…

…There is no inherent constitutional difference between trailing a defendant and tracking him via such technology. Law enforcement tactics must be allowed to advance with technological changes, in order to prevent criminals from circumventing the justice system…

More on this story, from the American Civil Liberties Union (ACLU)...
Appeals Court Rules Fourth Amendment Does Not Protect Cell Phone Location Data
By Catherine Crump, Staff Attorney,
ACLU Speech, Privacy and Technology Project at 3:25pm

Yesterday the Sixth Circuit Court of Appeals issued an unfortunate and legally incorrect decision holding that the Fourth Amendment provides no protection against warrantless cell phone tracking. Although couched in language stating narrowly that the Constitution does not protect criminals’ “erroneous expectations regarding the undetectability of their modern tools,” the impact of the opinion sweeps far more broadly, holding that the innocent as well as the guilty lack Fourth Amendment protection in cell phone location information. This is wrong, for a number of reasons…

…The ACLU has argued repeatedly that the Fourth Amendment provides protections against warrantless cell phone tracking, particularly continuous tracking over prolonged periods of time such as the three days at issue in Skinner’s case. The Fourth Amendment protects people’s reasonable expectations of privacy, and people reasonably expect that they will not be subject to this invasive form of surveillance. That is because location data is very sensitive, revealing private facts. As an appeals court has observed:

A person who knows all of another’s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups—and not just one such fact about a person, but all such facts.

…But this is not the right question. The mere fact that the police are capable of tracking someone doesn’t mean they’re entitled to do so without first getting a warrant, any more than the mere fact that it’s easy to break down someone’s front door or open their postal mail gives the police the right to take these steps without a warrant. The question, rather, is whether a police action invades a person’s reasonable expectation of privacy that society is prepared to recognize as reasonable. Because people reasonably expect privacy in their movements, as the D.C. Circuit explained in the passage above, the Fourth Amendment provides us with protection.

If a suspected criminal’s phone can be tracked without a warrant, then all of our phones become tracking devices that the government can use to monitor us for any reason or no reason at all…

Crump continues on to point out that simply because it’s now much easier and much more cost efficient for law enforcement to track citizens than it was 25 years earlier (in their decision last week, the Appeals court cited United States v. Knotts,  a 1987 case where “…the police used a combination of visual surveillance and signals from [a] beeper to track an investigative target as he traveled on public roads…”), the “heart of the matter” is that…
…The Sixth Circuit’s fundamental error is in believing that a technological change that makes it vastly more feasible to track us all in great detail, continuously, and at little cost is simply irrelevant. It is not irrelevant. It is highly significant. Physically tailing a person for days on end requires a mass commitment of resources, which in turn limits the possibilities for abuse. … But when a single police officer can achieve the same level of surveillance using GPS, all while sitting at his desk and flipping open a laptop, the situation is radically transformed. As the invasiveness of tracking and the ease of tracking increase, the supervision of courts applying meaningful constitutional standards become all the more important…
Crump notes that the Fifth Circuit has a related case on its docket scheduled for later this year, with argument set for October.

Stating the obvious, it would be nice to maintain some semblance of hope that the decision in United States v. Skinner isn’t the continuation of a trend further down this slippery slope. But, as I’ve been noting it in a series of posts through the year, we’re being constantly reminded that the exact opposite is the inconvenient truth. Here's a link to my April 1st diary: "NYT Lead: ACLU Documents Rampant, Warrantless Phone-Tracking By Police Throughout U.S." And, here's another link to my post from just six weeks ago: “NYT Lead: U.S. Law Enforcement Made 1.3 Million+ Surveillance Requests Of Cell Carriers In 2011.”

And, as I stated it in another piece just a few weeks ago…

..if you have any doubts that we’re not already miles beyond any semblance of “democracy,” and light years past “clichés” about 1984, I’d suggest you read THIS, THIS, THIS, THIS, THIS, THIS, THIS, THIS, THIS, THIS, THIS, and especially THIS.
Yes, last week’s decision in the 6th Circuit Court of Appeals is just another of the multitude of reminders that in America, today, we’ve already crossed the Rubicon as we morph into a corporatocratic police state society where gun owners’ and bankers’ rights to privacy are sublime; meanwhile, the trampling of the typical citizen’s basic rights to privacy, due process and other generally accepted rules of law are not just commonplace, they’re "the new normal."
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