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Windows Phone Location Services - no warrant needed?
46

Federal Court ruling opens the door to your Windows Phone location service

The location services on your Windows Phone can come in handy for navigation apps, finding local services and focus ad banners to content relative to your location. It also allows wireless providers and OS manufacturers to provide location services to allow customers to locate their phones if lost.

A recent Court ruling may have opened the door for law enforcement to use the same location services to track you without a warrant (at least in the Sixth Circuit). The case in question involves a drug dealer, Melvin Skinner, who was tracked by Federal Agents using his cell phone location services. Agents received Court authorization to obtain information on the cell phones used by Skinner that was in turn used to track his location. The tracking information obtained by law enforcement not only connected Skinner to the crimes but would also lead agents to his location for arrest.

At trial, Skinner objected to the use of the GPS data, the Federal District Court denied his objections. Skinner would eventually be convicted on drug trafficking charges and sentenced to 235 months imprisonment. Skinner would appeal his conviction, based in part on the claim the tracking of his phone was a violation of his 4th Amendment rights. The U.S. Court of Appeal for the Sixth Circuit heard the case and issued it's ruling yesterday (here is the full brief).

In a nutshell, the Court upheld the conviction citing that no Fourth Amendment violation occurred because there was no expectation of privacy present and a warrant was not required to track his cell phone. Because of the Circuit in which the ruling came from, it will likely overturn an earlier Ohio State Supreme Court that required warrants to track cell phones.

Tracking your Windows Phone

Several issues come into play with this ruling from the fact that Skinner purchased these phones under a false name and lacked standing to object to the "pinging" of the phones to determine location was the least intrusive means where other cases dealt with greater intrusions by law enforcement. While I'm all for convicting those who break the law, the ruling made me pause beyond the effects it had in this particular case.

In the ruling, Justice Rogers notes

"There is no Fourth Amendment violation because Skinner did not have a reasonable expectation of privacy in the data given off by his voluntarily procured pay-as-you-go cell phone. If a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal."

Additionally in a footnote, Justice Rogers extends the lack of an expectancy of privacy to innocent actors as well as those using phones in the commission of a crime.

Maybe it should be a case where the expectation no longer exists when the phones are used in the commission of a crime but I would argue that there is an expectancy of privacy to our Windows Phones location services. If there wasn't anyone would be capable of tracking any cell phone with location services. If there wasn't wireless providers or OS manufacturers would have language in their privacy policies along the lines to indicate that your information will only be disclosed in order to comply with the law or respond to a lawful request or legal process.

AT&T Family Tracker

The ruling equated the expectancy of privacy in these cases to a getaway car driver expecting his license plate to be private if they thought they had fled unseen. But that's the key.. anyone can see a license plate but not everyone can see your location services. Even with Microsoft's find my phone feature or AT&T's Family Map, while you have access to the technology to track a phone you are only allowed to track your phones. If no expectation of privacy existed, anyone could obtain the information and track your phone.

Again, I am all for giving law enforcement the technological tools to combat crime but in the process those tools shouldn't be abused. Enter the need for a warrant. A warrant gives police actions judicial scrutiny and adds a layer of protection against abuse, as well as a layer of credibility to the case they are building. Yes, there are situations that can exist that allow for warrantless searches but I'm just not sure if tracking a phone's GPS signal is one of them.

We aren't sure if this issue will make it to the next step, a review by the United States Supreme Court, or if other Federal Districts will adopt the same point of view should a similar case cross their bench. I do think that this issue has the potential to be a slippery slope opening the door for abuses.  On the conservative side, one could argue that if you aren't doing anything wrong why worry?  But what if those who are doing something wrong uses your location data against you?

If you use your Windows Phone in the commission of a crime, it shouldn't be immune from tracking or monitor.  There just needs to be checks and balances in place to prevent abuse from authorities or to prevent our Windows Phones from being used against us.

Source: ARS Technica

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Comments

There are 46 comments. Sign in to comment

blessthejon says:

(Slightly different matter) Why are regular people so afraid of using location services?

sholokov says:

Just interesting that I live a mile away from Skinner's house. :)

Shane says:

So what the court is saying, "Turn off your location services while in the comission of a crime." I guess they don't need a warrant for tracking you via a predator drone, why should a  cell phone be any different?

Well, suspected of commission of a crime. Also, I'm not sure it has to be during the event. Remember, the government needs to make a case to the judge that they think you're doing something illegal. If demonstrated, they get a warrant.

If they don't need to demonstrably prove to anyone that you may be committing a crime, then there are no checks and balances. Anyone is fair game.

Federal agents regularly use such techniques against political activists and dissidents, which is the slippery slope that George is referring to here.

Shane says:

Understood.  Last point is extremely valid.  I could see the Feds using such tactics to monitor groups such as the Occupy movement.  Very scary.

diplomat696 says:

OK, so I have to reference a couple of cult things here, my apologies in advance.....And that ladies and gentlemen is why Jack Bauer instructs you to pull the battery and sim card out of your cell phone when not using them. I guess this becomes a problem though when you have a non removable battery and need a special tool for sim opening (thanks Nokia!!)
 
My real take on this story is, I have no issue with law enforcement using this data so long as it is being used for a legitimate purpose i.e. tracking bad guys and terrorizers (Thanks GW from Harold & Kumar Escape from Guantanamo) the constitution should not apply when it comes to tracking people doing things they should not be doing like drug dealing so good for them. What I would object to is advertizers somehow tracking me, that would be an issue I would not be happy with.

"the constitution should not apply when it comes to tracking people doing things they should not be doing like drug dealing so good for them."

I'm not sure you understand what having rights and due process means. LEA are not judges and we have a presumption of innocence before guilt, so yes, the constitution certainly applies to them--in fact even more so.

diplomat696 says:

I understand the intention of rights and due process but someone tracking me would be able to prove that I am innocent before arresting me and then trying to prove me guilty being that I am not doing anything wrong so if it proves they are guilty then so be it one less criminal on the streets right.
I know in a world of data privacy this is the devils advocate side of the argument but if you have nothing to hide why worry about it. Also my comment regarding advertizing would not be the be all and end all of what I would not want tracked simply an example of something I would not want tracked.

Shane says:

I have a big issue with tracking with out a warrant.  When does it stop?  Of course the saying is "if you have done nothing wrong, you have nothing to be afraid of"  Well I have nothing to be afraid of but I'm not a big fan of the goverment running surveillance on it's own people. In one way or another it leads to abuse of the system.   

ade333 says:

As a youth I was accused and punished for a crime I did not commit. It's kind of funny/ridiculous looking back on it as an adult because it was petty, but that experience taught me that being innocent has no bearing on a judgment against you. In my case, cameras made it look like I stole and the clerk knew the truth, but he and his reputation were so caught up in it that he couldn't admit the truth. I have strong feelings about abuses along these lines. the people who talk of not worrying simply haven't experienced abuse of the law.

theefman says:

Wait until the advertisers latch on to this, google especially. Definitely opens the door to abuse.

I think you're confusing the issue of LEA needing to get a warrant versus what advertises can do. The two are not connected.

dakken says:

I always have my location turned off

stevethenerd says:

The ability to track a cell phone has been around since the analogue days... All phones by law have to transmit there location for e911. Blocking all location abilities would break many essential services.

I like it. We should all get chips implanted when we are born. No more missing kids, less criminals getting away, less innocent people behind bars.

If a warrant needed to be presented, who would it have to be presented too? Does the user own the GPS location data being sent between the phone and the carrier, or does the carrier own it?

While some jurisdictions may require the presentation of a warrant, my experience is that you don't have to present it unless challenged or requested by an effected party.

brmiller1976 says:

Not quite. Any evidence collected without a warrant (when one is required) is considered "fruit of the poisoned tree" and excluded from consideration in any criminal proceedings that might arise.

Unfortunately for us, US courts (generally ignorant of tech) have made a number of rules stating that one's phone, PC and cloud services are essentially not private nor covered by the Fourth Amendment. The awful Patriot Act further eroded privacy rights and Fourth Amendment protections.

The default position of law enforcement has always been that it has an absolute right to access whatever info it wants, and the courts have been aligning with that view (and against the Constitution) for a while.

Didn't say that a warrant didn't have to exist, just that it doesn't always have to be presented.

Defining what requires a warrant and what doesn't has always had to evolve and this is another chapter in that evolvement.  There was a point where it was acceptable for States to search without warrants while Federal agencies were required to have one.

I think there are situations where a warrant isn't needed to preserve evidence, prevent flight and when the evidence is in plane sight.  But in these situations where neither of those situations were present, why not take the extra step and obtain a warrant.  It adds a level of creditiblity to the action and might avoid costly appeals.

And I think you're wrong about the default position of law enforcement.  

TMavZR1 says:

I'm not worry because i have nothing to hide.

That's an embarrassingly weak and flippant response to the serious issue of enshrined constitutional rights. 

Abuse of authority by those in power doesn't come from them acting against those of guilt but those of innocence. That is why you should be concerned because ultimately it's your word against theirs.

lippidp says:

You're putting a lot of trust in law enforcement. Maybe they just don't like you for some reason.

procen says:

Oh I believe you you don't have anything to hide because when the government is done with you there is no holes left to plug.

markavo says:

I love that ignorant and naive attitude.  If you have nothing to hide are you OK with full body cavity checks in Airport security lines for each passenger so that every passenger is checked fully?  
At airport security they have no suspicion of anyone and yet treat everyone the same so how about a nice anal/vaginal probe before sitting down for a 5 hour flight?
The "I'm not guilty, who cares" attitude is absurd when looked at through any kind of logical lense.

Where the TSA gets their authority to search is because you voluntarily choose to fly.  And more specifically seek access to the terminal/secure area.  

If you are on the concourse, the laws on searches applies as if you were on the street... unless there's a sign on the door that says all persons entering premises are subject to search.

It's been a while since I've been to an airport.

brmiller1976 says:

Great! So let me install this infrared camera with audio recording in your bedroom.

hancoUK1 says:

No curtains or blinds on your windows then. No "frosted glass" on your toilet/rest room. When you feel I'll, if it turns out to be something which could shorten your life, you won't mind the insurance companies rating you a higher risk due to your research on line into your symptoms.

Nothing to hide? No, of course you haven't... You've certainly been very open about how shallow your thinking goes.

AriesDog says:

Harry Harrison passed away recently. It was his book The Turing Option that taught me back in the 1993 that you could be tracked by your phone, even if it's turned off. You have to remove the battery too.

Coler7 says:

"235 months of imprisonment" I'd rather not do the math, next time use years please.

jes1888 says:

Lazy ass, lol

Federal sentences are handed down in months.

Nakazul says:

Hmmm, this is turning faster then I guessed. This is bad, really bad. All these years and we, the users, have given away everything , bit by bit. The sad part is we didn't see it :-(

No, the sad part is the apathy most people feel towards all this...slippery downhill mess.

markavo says:

Not to get political, but I'd contented the sad part is the next President may choose up to 3 supreme court justices...

Where's your "expectation of privacy" now?

I wanted to point out a couple things. I keep reading people talking about advertisers getting this info. Advertisers already have this info if you have an app that uses advertising. you agree to it upon installing the app. Google has this info if you use an android device and allow GPS use, same with Microsoft if you use location services.

Also law enforcement isn't using Microsoft location services or any other OEM location services, they are using information obtained directly from the carrier. There is already a warrant-less way for law enforcement to get this info... I'm having trouble remembering what its called but its been around for a while.

In this case the DEA and law enforcement may not have gotten actual warrants but they did get a court order allowing them to do this. Advertisers will not be able to do this. All of this is covered in the contracts we sign or agree to when we get a mobile contract or purchase a pre-paid phone.

If you don't want someone to know where you are then you should take the battery/SIM card out of your phone. If you can't do that switch to a phone that you can do that with.

I'm going to state two rules of thumb that we should all remember:

1. Don't do the crime if you can't do the time. Likewise, don't use the service, if you don't approve of the consequences. "But GT, what's the point of having the services I can't use?" There is no point, but it's like any EULA... if you use the product or service, you accept the terms of the agreement.

2. There is no such thing as a right to privacy. The 4th Amendment ONLY protects against search and seizure without a warrant and probable cause. They had probable cause. They never seized his phone to make the arrest.

Do I think the police did the right thing? Yes, because clearly this takes a criminal off the streets. I realize the method they used is questionable at best, HOWEVER, it appears to me that they did have court approval to gather the information, and therefore they were within their rights.

The court was in the right to convict him in the first place, especially with all the additional evidence against him. I don't believe in allowing a criminal to run free, because of procedural faults when the evidence is conclusive. In a situation like this, file a suit against the department on the procedural fault.

Criminals will ALWAYS break the law, regardless what the law is. Why should they be allowed to subsequently use those same laws to break the law? Guilty is guilty. Innocent is innocent.

Just my opinion, of course.

goyde says:

This is an easy attitude to have when something is clear like this and has been ruled upon. But the key element here, and in the US, is INNOCENT until PROVEN guilty. Regardless if you are a 'scumbag' of a person, they have to amass evidence to prove your guilt BEYOND A REASONABLE doubt.
This is sadly a thing most Americans forget. And when we turn the burden of proof for innocence to the defendant, we will stop being America and simply be another country in a long list of government abuse.
It's not about protecting the guilty, it is about protecting the innocent. You can't have one without the other. If you take away the protections that extend to both the innocent and guilty, you cease to protect the innocent.
And as you said, criminals have no regard for the law (I'm paraphrasing) so removing protective laws, does it hurt the guilty ? So you give up your rights to what, feel safe ? From criminals ? Terrorists ? what happens when you need protection from your own government ? be it local, state or federal.
Warrantless grabs for information are the first step to rash justice.
I swear the more I hear people willing to be subject to this, the more I think about Idocracy.

wpguy says:

"I've got nothing to hide, so what's the big deal."

Would you say the same if a law enforcement officer followed you everywhere you went? To your house, to work, to the grocery store, to a restaurant, to that vacation destination with your spouse/sig other, to the adult entertainment store, to anywhere else you might go?

The potential for abuse as well as inadvertant leaks to those who shouldn't have access is staggering. It already happens with financial and medical information, despite protective laws, and people's lives are turned upside down, if not ruined, because of it.

brmiller1976 says:

The Fourth Amendment states that an individual will be "secure" in his "person" and "effects." In a modern society, that can be reasonably construed to include his private information as well.

nParallels says:

The concern created by this ruling has nothing to do with whether I have committed a crime or am in the process of committing a crime.  It's about government authorities having the legal right to track me wherever I go regardless of whether I have or am committing a crime.  I think wpguy is right on target in his post...what if a government authority knew everywhere you had been for the past year, five years or ten years?  Consider the power that would give the government over every individual that owns a cell phone with location services.  I'll leave that to your imagination, but you inevitably move further from a free society to one where the government gains more and more control over you as an individual.  I am all for putting criminals in prison, but not at the expense of my personal freedoms.  Unfortunately, that is all we experience as a society anymore.  If someone does something wrong, we try to put precautions in place that keeps everyone from doing that thing to us again.  Therefore, all of us that have no intention of doing the wrong thing are subjected to the same rules as those who do wrong.  How is that equitable and fair?  The government gets away with it by saying it is for our own security when in reality criminals will adjust and adapt and the system will be of no effect.  If someone wants to do wrong, they will find away, whether by bomb, gun, knife, baseball bat or fist, regardless of what restrictions the government puts in place and we will always suffer that wrong and the new restrictions imposed in the wake of such action.     

camaroguy says:

Next step...They track the speed at which you are moving on a given road and mail you a ticket anytime you are 3+mph over the limit.  Then you can argue in court, that the signal was bounching around and you weren't actually going that fast. The judge will say, thats fine, we can take the state's part of the fine off $5, but you still have to pay the 3rd party company the $150 processing fee.This is already how it works with redlight cameras. I can see it now :)

DavidinCT says:

That's one way but, isn't pulling the battery and the SIm card the same thing ? Once you put a phone in a Faraday cage it's dead, no signal at all.
I guess I should build one in the cener console of my car, if I am really that interested...