Cellphone Tracking Without Warrant Unconstitutional

Cellphone Tracking Without Warrant Unconstitutional

The Wall Street Journal online article about cellphone tracking highlights interesting perceptions into the complexities involved between the US Constitution and Statutory Law. WSJ in its article sets out its stall of the various decisions there have been that, on the surface of it, at any rate, illustrate how diverse one US State perceives cellphone tracking compared to another State. A very short Order issued by her Honour Lynn N Hughes made recently in the United States District Court Southern District Of Texas succinctly makes it plain that the standard under partiuclar provisions set out in the Stored Communications Act are below that of the US Constitution Ammendment 4. A copy of the Judgment can be downloaded from WSJ website hughesorder1116.pdf.

US Revolution? Privacy -v- Intrusion

US Revolution? Privacy -v- Intrusion

At DEEU research we are noticing an interesting trend in the United States pushing a revolution to claw back the rights of 'privacy' regarding mobile phone communications and GPS tracking, perhaps to counteract what appears to be the underlying suggestion of high level of 'intrusion'. A number of recent cases that have been reported are well worth reading and the rise of these cases suggest landmark judgments may not be far off. The effect of such judgments might bind the US's member states to possibly a single code of conduct. This may make sense where an operator, providing national coverage, has a uniform privacy policy as opposed to a single member state imposing local laws to such a degree that it might be possible to cause:

- the US constitution to be eroded by localised politics in a single member state
- national security may be undermined if a single member state bleeds information about a person's movements simply obtained via a production order application

The points above and below are not statements of fact but merely observations and, rather than my comments influence readers' thought-processes, below is a list of cases and some additional reading that may be of interest. The British legal system may well be interested in what is taking place and such cases can influence aspects of our case law. Mobile forensics and evidence might equally see requirements imposed as to the level of data that maybe accessed from the network and/or acquired from mobile devices. The US, whilst is still in its infancy, due to arriving fairly late to the table in these fields (but making up ground) regarding mobile phone forensics and evidence may, no doubt, want to keep an eye of how these cases impact on the area of data acquisition and harvesting.  

Mobile Phone and GPS Privacy Cases:
http://edition.cnn.com/2011/09/20/tech/mobile/california-phone-search-law/
http://arstechnica.com/tech-policy/news/2011/08/judge-says-warrant-required-for-cell-phone-location-data.ars?utm_source=twitterfeed&utm_medium=rss&utm_campaign=rss
http://www.llrmi.com/articles/legal_update/2011_co_schutter.shtml
http://www.theolympian.com/2011/08/21/1767625/courts-grapple-with-gps-technology.html
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/08/22/BABR1KQFL7.DTL
http://trewmte.blogspot.com/2009/02/cellular-phones-warrantless-searches.html

Further reading material
http://www.aele.org/law/2011-02MLJ401.html
http://www.jdsupra.com/post/documentViewer.aspx?fid=6c7c563a-d772-413f-b28a-6074c5673f45
http://blogs.sfweekly.com/thesnitch/2011/09/lost_iphone_5_apple.php
http://blogs.sfweekly.com/thesnitch/2011/08/apple_iphone_lost.php

US Cases - Interpretation regarding seizure

US Cases - Interpretation regarding seizure

Two interesting US cases posted at Susan Brenner, Professor of Law, blog highlighting the complexity in interpretation regarding seizure, relevant to these cases were Blackberry devices.

http://cyb3rcrim3.blogspot.com/2010/10/blackberry-seized-unlawfully.html
http://cyb3rcrim3.blogspot.com/2010/10/blackberry-seized-lawfully.html

Cellular Phones, Warrantless Searches

Cellular Phones, Warrantless Searches

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I have just read an interesting paper, published at the Social Science Research Network (SSRN) website on January 18, 2009, which has a very long title:

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Cellular Phones, Warrantless Searches, and the New Frontier of Fourth Amendment Jurisprudence.

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http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1329863#1209265

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Written by Matthew E. Orso of the Saint Louis University School of Law, the theme of his paper is written in context of the US Constitution Fourth Amendment and searches and, having read the paper, I took the view it raised the US question, do they understand what they are doing in the name of it? The Fourth Amendment, that is.

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To assist his proposition Matthew Orso opens with the volley, "As one court has observed, The recently minted standard of electronic communication via e-mails, text messages, and other means opens a new frontier in Fourth Amendment jurisprudence that has been little explored. A quick glance at the edge of this new frontier might reveal the following: the FBI's Magic Lantern technology, a Trojan horse virus that remotely injects surveillance programs onto a suspect's computer and records every keystroke; x-ray devices that allow law enforcement to see through people's clothing; and police tracking the geographical location of a cell phone (and its owner) by obtaining the service provider's records without probable cause or a warrant. There are countless examples, but all hold at least one trait in common: Fourth Amendment questions abound while legal precedent often lacks, leading to tenuous conclusions."

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The clarity with which some arguments are presented raise other questions, too, such as, who is in control? The people democratically elect politicians to Govern for the purposes of running the country. That requires fulfilling the tenets in the doctrinces set out in the US Constitution. Power is lent and never given absolutely. Thus, once in office, to abrogate powers through devolvement to public servants because the minutiae of running the country is problematical and then not keeping an eye on the possible erosion of Constitutional principles leads, at best, to conclusions that are based upon the flimsiest of evidence and at worse decay at its foundation. Whatever it is that the US Government expects of their Superior Courts to maintain Constitutional principles, it might probably be based on whether those Courts see the flimsy or erosion at first instance? It could be said, Matthew Orso raises that old chestnut, he couldn't be saying it if it wasn't happening.

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Given the enormity of the technological landscape identified by Orso at the outset, his paper sensibly explores only a tiny thread of this "vast new frontier", as he calls it, by focussing in particular on "one intersection between technology and Fourth Amendment jurisprudence that has ballooned in commonality yet remains untouched by the Supreme Court - the warrantless search of a cellular phone's contents."

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As my webblog is about thoughts and discussions on mobile telehone evidence and Forensic Focus discusses Mobile Forensics, I think Matthew Orso's paper makes an excellent contribution to this arena.