US Courts refuse GPS data, too
Following on from the thread 'Warrant Required for Cell Phone Location Data' discussed here http//www.forensicfocus.com/index.php?name=Forums&file=viewtopic&t=8071 it would appear more is happening in the Court rooms of the US than was first thought. The following case suggests there is more being done to bringing obtaining technology evidence within the remit of the principles of the US Constitution, as opposed to allowing fuzzy-logic being applied to technological surveillance evidence that implies that it has, hitherto, waivered (permitted some sort of exception) outside of Constitutional legal boundaries.
In a recent case in the States "U.S. District Judge Susan K. Gauvey in Maryland recently refused to issue a warrant sought by federal authorities to find a suspect through his cellphone’s GPS data, saying the government was trying to use technology in a new way – “not to collect evidence of a crime, but solely to locate a charged defendant.”
It is interesting to read commentators views about this case. “For investigators, the cellphone has become one of the greatest tools available,” said Douglas Ward, director of the Division of Public Safety Leadership in the Johns Hopkins University School of Education. He states, according to the published article,
“But certainly we want to do this the right way and protect people’s rights,” he added. “This technology is going to cause more and more of these arguments, and the courts are going to have to settle how it all turns out. Like anything else, there can be abuses. Justice demands that we weigh that.”
This is not the first time such challenges have been noted that are simmering in the background about obtaining technology evidence. An earlier example of this is here http//
In the current case article In Baltimore’s federal court, Gauvey conceded in a ruling that “to some, this use would appear reasonable, even commendable and efficient.” But, the judge wrote, “To others, this use of location data by law enforcement would appear chillingly invasive and unnecessary in the apprehension of defendants.”
http//
I have a basic principle which I've been applying to understand how the US law will be interpreted. If a GPS or tracking device is used for a single event external to a person's home, such as the passage of a car along a certain PUBLIC route, then courts will tend to allow it since a single movement in a public place could reasonably have been observed. However once you start tracking the totality of a person's movements, the 4th amendment applies since no-one could reasonably expect to track all of a person's movements without an overriding interest.
Not a lawyer, although I did go to law school and do subjects on theories of law and how statute is interpreted, albeit not in the US.
Perceptive view Tony. As a very basic view when I was reading about this case I suddenly remembered the case in the UK where the police failed to apply cell site analysis to find a witness, with rather withering criticism from the Judge
http//www.forensicfocus.com/index.php?name=Forums&file=viewtopic&t=4407
"Nor was there any evidence when enquiries came to be made in the early part of 2008 and in the month or two before the trial as to what information the witness's mother had about her location, no evidence as to what enquiries had been made of social security (as one assumes that the witness concerned was on social security). She had been on the telephone. There was no evidence as to whether any attempt had been made to trace her through cell site analysis. It is said that all of this might be expensive. It may be. We do not know, however, because there was no evidence about that either."
Clearly this could require tracking the 'totality of the person's movement (as best possible)
i) by way of the Masts
ii) tracing IMSI
iii) pinging the MS
One type of common maintenance practice for using MS GPRS trace
Use only IMSI
—————-
= Insert target IMSI into two messages - Common ID and Handover Request - from the MSC
= BSC matches the MS Identity and an MS PDP Context Identity
= MS Identity Established, MS PDP Context Established and Real Time Trace Mapping events sent to Operation and Support Subsystem (OSS)
= When MS active, BSC checks if it is listed for an IMSI or IMEI trace.
= Where MS belongs to a trace the BSC sends subscribed requested events to the OSS.
= OSS presents the events in a log file and/or on live GUI.
= BSC stops trace when OSS sends Unsubscribe Requests for all events included in the trace.
= Trace can continue as long as MS is in the same network from one BSC to another and independent of MSC or SGSN it is active. This is possible since Common Id or Handover Request message is received from each new MSC.
However, there are many numbers of GSM/GPRS elements to be considered when dealing with CS/PS, but have a look for trace invocation TS 48008 and TS 49008. The above doesn't even start to consider WCDMA or roaming issues, but that doesn't mean to say when the MS re-enters the home network trace wont continue as this can happen with when incoming inter-system handover takes place.
The point being made is that if an engineer for diagnostic reasons can routinely run such traces, it isn't really that difficult to trace a target MS.
A popular US radio talk show host often says “To demonstrate the absurd, one must often be absurd.” In light of that I will ask this I wonder if the Judge’s opinion would have been different if Jared Laughner had gotten away and the only way LE had to catch him was using this technology in a “new way?”
The Judge wrote “To others, this use of location data by law enforcement would appear chillingly invasive and unnecessary in the apprehension of defendants.” Chillingly? To catch individuals with active felony warrants that were issued based upon probable cause? Do those “others” get equally chilled when Law Enforcement Authorities using this technology to locate missing children, the elderly or lost hikers?
I fail to see her logic.
Well, I am no lawyer either. But I don't get her reasoning either. Warrants, by their very nature, are invasive. A proper warrant, by necessity, allows the government to disregard some of the protections afforded in the Constitution. I don't even think this is "using technology in new ways". I have heard of LE using cell phone technology to track down a subject before (maybe not exactly using GPS data, but still).
By her logic, does a warrant not allow LE to go and find a suspect, by say knocking on their door? Or, is she disregarding finding a subject by GPS data simply because it is new?
Should be interesting to see what happens with this.
Maybe the reason is the escalation in the demands for privacy. I read about "Calif. Assembly passes cell-phone privacy bill" in the online San Francisco Chronicle http//
"This will not interfere with the legitimate needs of police," Knight said as he presented the bill Monday. "All established exceptions that currently exist will still apply."
Given the procedural path required for location details about mobile phones, I wonder whether using technology in a stolen 'mobile phone prototype' requires a warrant?
"A Bernal Heights man says that six officials claiming to be San Francisco Police officers questioned him and searched his family's home in July for a lost iPhone 5 prototype they asserted had been traced to the residence using GPS technology."
http//
When the stolen protoype story first became news - http//
- I did wonder at first whether the use of tracking in this case would be similar to "asset tracking" or would the manufacturer (via Police) have had to obtain a warrant first?
- If the prototype contains tracking capability - where is the consent from the thief, who is not under contract to obtain service or use the handset, allowing his/her movements to be tracked?
- Does a person involved with a commissioned crimed (at best found in possession of stolen goods or the worst the perpetrator) tracked to his home have any privacy rights?
When compared to the first discussion about a court ruling in this thread, what if the person accused of being the thief actually wasn't? The prototype was merely handed on? Would the tracked movements be attributed to the person in the story or could it be someone else's movements that have been recorded who was in possession of the stolen prototype at that time?
This type of scenario 'who is using the phone' is a theme that occurs when dealing Cell Site Analysis.
Hmm… The warrant was denied, in my opinion in this case properly.
In MD, as the defense attorney stated
a necessary component for issuance of a search warrant is proving "a fair probability that contraband or evidence of a crime will be found in a particular place."
He argued that a GPS track would not find the contraband, or evidence, just the suspect.
I think we tend to think that, as the DoJ counsel suggested, "a suspect wanted on a warrant enjoys less privacy than others" . . . but the judge disagreed - and so do I. If this would be the case, than anyone would be default enjoy less rights as soon as they are suspected of any crime. - Innocent until proven guilty out the window…
The suspect was unaware of the warrant.
Jhup,
For argument sake let’s say that the individual had been notified of the warrant, was given a reasonable amount of time to turn him/her self in and failed to respond to repeated attempts via voice mail to see when might be a more convenient time for them to turn themselves in?
I know you are familiar with this… “No Warrants shall issue, but upon probable cause, supported by Oath or affirmation.”
This isn’t the same as tracking the phone of the new hot looking bank teller. And I don’t feel it is the same as merely trying to track just any old suspect. The individuals I am talking about tracking are wanted felons with active warrants, which were issued after having been supported by an oath or affirmation of probable cause.
Now let’s also say that Jared lee Loughner got away and officers were able to get a felony warrant for his arrest. Would he not enjoy any less privacy? Personally I believe he has less right's, but I enjoy the debate none the less.
I do not know at this time. I do not have all the details for what status this person had other than "suspect".
The judge wrote that "the government has reported no attempts of the subject to flee", and if there was such flight risk, the warrant would have been approved.
The search warrant asked for "unlimited location data at any time on demand during a 30-day period".
The more I think and read about this, in my layman opinion, the prosecution should have filed it as a sort of a wiretap order - GPS requests should fall under wiretapping laws as the information collected is generated on demand, not something existing such with search warrants.
What say you?
p.s. turns out law was able to track and arrest the individual without the GPS.