Wednesday, July 31, 2013

What?? US Court of Appeals 5th Circuit Rules that NSA cell phone tracking without warrant is constitutional?

by Karl Denninger

You do know that your phone is always communicating with the towers when it's turned on, right?  That's how it works -- it has to occasionally ping back and forth between the tower and device in order for a call to route to you, a text message to be delivered, etc.

Guess what?  There now is a court ruling that since you voluntarily "gave" that information to the cell company even though it would be impossible for you to have such a device and have it work without giving that data to them because your giving that data (your location) was "voluntary" it is not protected under the 4th Amendment and thus does not require a warrant.

The closely watched case, in the United States Court of Appeals for the Fifth Circuit, is the first ruling that squarely addresses the constitutionality of warrantless searches of historical location data stored by cellphone service providers. Ruling 2 to 1, the court said a warrantless search was “not per se unconstitutional” because location data was “clearly a business record” and therefore not protected by the Fourth Amendment.
Note that this is historical data.

That is, exactly what the NSA is grabbing from all cell carriers in bulk without a warrant.
"In bulk" means for everyone.

All the time.

The root of the problem here is not that it might lead to you "right now."  It's that the data, once acquired is never erased and thus becomes a record that can be usedat any time in the future if it becomes politically (or otherwise) expedient to use in order to implicate you in something.

The usual argument on the other side is something along the lines of "I'm not doing anything wrong so I don't care."  Uh huh.

You're a rather trusting sort, you know.  After all, there is no evidence that the government would ever turn into something evil at any time in your lifetime and then use that data to ex-post-facto link you to something they don't like -- right?

There's no history of governments doing things like this, is there?  Oh wait -- there is.  There are in fact dozens of such instances through history, and in virtually every single case the citizens who were ultimately murdered as a consequence never saw it coming 5, 10 or 20 years down the road because at the time they "consented" the evil thing wasn't happening -- yet.

The most-obvious of course is the Jews in Nazi Germany, but by no means the only example.  Indeed, the history when it comes to privately-owned arms is that material and serious constraints on their personal ownership tend to come 10 or 20 years before the citizens are murdered by their very own government.
This is much-more-insideous in that these "records" can be -- and will be -- used to link you to a political protest (e.g. "you were at the Washington Mall during the time that xxxx happened") and while today that's considered a protected activity who says it will be tomorrow?

The real error here is that "business records" are not accorded 4th Amendment protections.  Why not?  I give the cell company access to my location not because I want them to have it but because it is necessary for their systems to know where I am for the service I am contracting for to work.

The very premise under which the court ruled is incorrect -- if you and I agree that you may have some piece of information for the purpose of providing me a service or good that does not mean that I am giving you license to use it for whatever other purpose you may cook up later on.

If we cannot get our government to respect the fact that private citizens and private companies have the right to allocate information for specific purposes and that doing so does not give a general level of permission to either entity to then use that data outside of the specific purpose for which it was negotiated then we need a new government that does respect that fact.

http://market-ticker.org/akcs-www?post=223192

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