The D.C. District Court Upholds the Government’s Geofence Warrant Used to Identify Jan. 6 Rioters

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March 10, 2023 | By Saraphin Dhanani | Lawfare |

On Jan. 25, Judge Rudolph Contreras of the U.S. District Court for the District of Columbia handed down an opinion in the case of United States v. Rhine denying Jan. 6 rioter David Harles Rhine’s motion to suppress evidence obtained from a geofence warrant.

Searches stemming from a geofence warrant can be likened most succinctly to “fishing expedition[s]”: Law enforcement compels a third-party provider, like Google, to disclose user location history (LH) data of “cell phones in the vicinity of [an] alleged criminal activity under investigation” in order “to narrow the pool” and “fish” out the identity of the criminal suspect. Unlike traditional search warrants, where courts compel a third-party provider to disclose a suspect’s location data after a suspect has been identified, geofence warrants place the cart before the horse. A third-party provider is compelled to disclose LH data of all individuals present in a particular vicinity during an alleged crime before a suspect has been identified.

Geofence warrants fall under Fourth Amendment protections in theory. The government must show probable cause that the geofence area contains evidence of the crime and, with particularity, tailor the scope of the warrant in space and time to leave as little discretion as possible to the whims of law enforcement officers.

Rhine was among the thousands of rioters who walked off Capitol grounds scot-free on Jan. 6, 2021, leaving FBI agents scrambling to pin down the insurrectionists. Geofence warrants were used to seize Google LH data for individuals “in and immediately around the Capitol between 2:00 p.m. and 6:30 p.m. on January 6, 2021.” Rhine’s location history data was caught in the geofence warrant and led the Department of Justice to level four misdemeanor charges against him: (a) entering or remaining in a restricted building or grounds in violation of 18 U.S.C. § 1752(a)(1); (b) disorderly or disruptive conduct in a restricted building or grounds in violation of 18 U.S.C. § 1752(a)(2); (c) disorderly conduct in a Capitol building in violation of 40 U.S.C. § 5104(e)(2)(D); and (d) parading, demonstrating, or picketing in a Capitol building in violation of 40 U.S.C. § 5104(e)(2)(G).

Rhine challenged his culpability and filed a motion to transfer venue, a motion for expanded voir dire, several motions to dismiss the charged counts, and a motion to suppress evidence obtained from the warrant because, according to Rhine, the geofence warrant was unconstitutional. The court denied all of Rhine’s motions (save for expanded voir dire, which it partially denied) and, most importantly, upheld the geofence warrant as constitutional.

With so little precedent on what makes geofence warrants constitutional, Judge Contreras’s holding is a breakthrough for the government as it uses LH data obtained through the geofence warrant to level charges against Jan. 6 rioters. More broadly, the case is also instructive for law enforcement as an example of the kinds of Fourth Amendment guardrails that a geofence warrant must have for it to pass constitutional muster.

Continue reading the entire article HERE.

How Bryan Kohberger’s Cellphone Records Could Be Used Against Him

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February 7, 2023 | By Khaleda Rahman |Newsweek|

It will be months before prosecutors try to show a judge that they have enough evidence to justify the charges against Bryan Kohberger, and experts have told Newsweek that the cellphone data could be instrumental in providing that evidence.

Kohberger, 28, is accused of breaking into a rental home in Moscow, Idaho, in the early hours of November 13 and fatally stabbing four University of Idaho students—Kaylee Goncalves, 21, Madison Mogen, 21, Xana Kernodle, 20, and Ethan Chapin, 20.

He is facing four counts of first-degree murder and one count of felony burglary. He has not entered a plea but a lawyer who represented him previously said Kohberger was “eager to be exonerated.” The preliminary hearing is set to begin on June 26.

A probable cause affidavit unsealed in early January revealed that investigators obtained Kohberger’s cellphone records after police officers at Washington State University, where he was a doctoral candidate in criminology, identified a white 2015 Hyundai Elantra registered to him. It matched the description of a vehicle that had been seen near the crime scene on the night of the killings.

The affidavit said Kohberger’s phone was either turned off or on airplane mode around the time of the killings, but the data right before it was turned off suggested he was heading in the direction of the home while data after it was turned back on suggested he was heading away from there. Using the data and surveillance footage of the vehicle that police identified as a white Hyundai Elantra, investigators sketched out a possible route that Kohberger could have taken on the night of the killings.

Other cellular data showed Kohberger had been in the neighborhood at least a dozen times prior to the murders, always late in the evening or early in the morning, the affidavit said.

Here, experts tell Newsweek about how Kohberger’s cellphone data and other records could be used against him.

Joseph Giacalone, adjunct professor at John Jay College of Criminal Justice

“Cellphone records place him at or near the scene,” Giacalone said.

That Kohberger turned his device on and off “can explain the intent to go unnoticed,” he said. “In addition, if he left his phone on, he might have attached to the WiFi. There is still much we don’t know about the cellphone.”

Giacalone said he would also be interested in whether investigators have video surveillance that shows Kohberger returning to his apartment on the night of the murders. “I have yet to hear if any exists,” he said.

He said other records from Kohberger’s phone could also be key, such as map programs, Internet searches, and other apps.

“Cellphone records, Internet records and video surveillance not only play a role in this case, but just about every criminal investigation moving forward,” he said.

Duncan Levin, managing partner of Levin & Associates

“The cellphone records will be used to show particularly that Kohberger is alleged to have turned off his phone for a few hours around the time of the commission of the offense and that it pinged near the site of the murders directly thereafter,” Levin said. “It also allegedly shows that he came to the area of the murder scene in the months preceding.”

Levin said Kohberger’s defense attorney “will argue that the cell towers are accurate to about 20 miles, which is the distance roughly between his apartment and the scene of the crime.

“In other words, he will argue that there is a margin of error in the records that does not prove what the state is alleging.”

Continue reading the entire article HERE.

Court: Riley’s ‘Get A Warrant’ Cell Phone Search Requirement Means Get A *Good* Warrant

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March 13, 2023 | By Tim Cushing | TechDirt |

In 2015, the Supreme Court finally addressed reality: people were carrying around computers in their pockets capable of accessing, storing, and maintaining far more information than could be expected to be found in their physical houses.

The government sought to compare cell phones to pocket contents or whatever might be found in the trunk of a car during a roadside search. The Supreme Court shut this argument down, pointing to the ubiquity of cell phone use en route to erecting a warrant requirement for cell phone searches.

While there are exceptions, the rule holds true: if cops want to search a cell phone, they need a warrant. But, as the Supreme Court of Georgia points out, not just any warrant will do. The warrant requirement also says specifics are needed. The Fourth Amendment forbids “general warrants,” the sort of thing oft abused by our former landlords, the British government.

And that’s reiterated here, in a decision [PDF] brought to us by FourthAmendment.com. Seeking a warrant? Good. Ignoring the relevant facts and copy-pasting a bunch of boilerplate to obtain this warrant? Well, that’s bad.

Defendant Roceam Wilson was arrested following the killing of Bradly Jordan, a pest control worker. After a brief investigation, officers determined a “black male” driving a teal green “Ford Aerostar van” was the best suspect. After consulting some ALPR (automated license plate reader) data, the cops decided Wilson and his van fit the description. A traffic stop was conducted, Wilson was arrested, and his van was impounded. A warrant was obtained to search the van, which resulted in the seizure of two cell phones.

That’s where the problems begin. An investigator applied for a warrant to perform forensic searches of the recovered phones. The warrant application contained a mix of relevant facts and boilerplate. It also included the assertion that investigators sought to access pretty much everything on the phones under the theory that any and everything recovered would be “evidence” of the alleged crime.

The trial court, after a challenge by Wilson, examined the warrant applications and found that they did not have enough particularity to be valid and ruled the evidence obtained from the phones should be suppressed. The state appealed.

Too bad, says the Georgia Supreme Court. These warrants were “general” in the worst and historical sense of the word. Nothing limited the search and investigators’ speculation that searching everything would result in finding evidence linking Wilson to the crime is exactly the sort of the thing the Fourth Amendment prohibits. Of all things, the state decided the boilerplate copypasta would relocate the warrant to its new home in Constitutional Land. The court disagrees…

Continue reading HERE.

New Mobile Phone Service Shows We Can Have Both Privacy and Nice Things

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February 15, 2023 | By Daniel Kahn Gillmor & Jay Stanley | ACLU.org |

Despite the desires of companies to monetize our data, we must insist that privacy be built into the technologies we depend on.

The recent launch of a new mobile phone service introduced significant new privacy protections into the mobile phone system. This exciting new approach highlights the failure of the existing mobile phone infrastructure to protect privacy, and points the way forward for a wide variety of technologies besides mobile phones.

Today’s cellphones are generally a privacy disaster. Partly that’s the result of the two companies that control the operating system software on the vast majority of the world’s pocket computers. The most common operating system, Android, is controlled by an advertising company (Google) and is notorious for leaking information about its users. Apple, which controls iOS, while excellent on privacy in many respects, is also becoming increasingly interested in monetizing its customers’ data, and lacks adequate controls to prevent rogue apps from many forms of spying. The result is that a lot of the activity we engage in on our phones is tracked.

There are already solutions out there for the privacy problems posed by Android and iOS: privacy-focused operating systems such as CalyxOS and GrapheneOS. Widespread adoption of those would be a step in the right direction. But the operating system can’t defend against another major obstacle to phone privacy: the architecture of the cellular network itself. In order for your carrier to route calls and data to your phone, the network needs to constantly know which cell tower your phone is near. And when you make a call or use data, the provider can see where that traffic is going. Cell carriers track and store this accidental byproduct of the technology in order to record people’s location history and network activity for marketing purposes and, in certain circumstances, for sharing with law enforcement.

This tracking happens through a standard identifier tied to each SIM card called an Internal Mobile Subscriber Identifier (IMSI) — basically an account number used, among other things, to verify that a phone’s mobile service is paid for. The new phone service, called Pretty Good Phone Privacy (PGPP), uses encryption techniques to deliberately blind itself so that it can’t know that the user of a mobile device is you, or what data you are sending from that phone. You connect to the PGPP service for payment, and that’s all.

The service has some limitations. It covers data only, not voice calls. For complex technical reasons (that Apple could fix if it wanted to), it doesn’t work on iPhones, which represent about half of U.S. phones but only 16 percent of phones globally. And certain other techniques for tracking phones remain in place. Nonetheless, it is an important step forward in protecting privacy.

Location data is so sensitive that the Supreme Court agreed with the ACLU that law enforcement should not be able to obtain it from the carriers without a warrant. Such data can reveal things about our associations, our habits, and our political, sexual, religious, and medical lives that no telecom provider has a right to know just because of the way cellular technology happens to work. With PGPP’s approach, the carrier simply does not have the data to turn over to anyone. It cannot be sold, leaked, or hacked, let alone offered to overreaching law enforcement agencies…

Continue reading HERE.

Snapdragon Satellite Allows You To Message From Around The World

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January 18, 2023 | By Kevin Krewell | Forbes |

There’s been an increasing interest in satellite communications with standard smartphones, largely to cover exceptional situations and emergencies where there is insufficient or no cellular service. Recently, Apple offered an emergency “SOS” text service for iPhone 14, SpaceX and T-Mobile announced plans to add satellite connectivity in 2023, and Google has stated that they will add satellite support in Android 14 later in 2023. At CES 2023, Qualcomm announced its world-wide (subject to local laws) satellite service for premium smartphones in the second half of 2023 utilizing the Iridium satellite constellation. The Qualcomm/Iridium service will be called Snapdragon Satellite and will offer full two-way texts, not just emergency messages. But no voice, image, or streaming services are available at this point. Qualcomm is also partnering with Garmin to provide the support for emergency messaging.

Qualcomm’s use of the low-earth orbit Iridium satellites operating in the L band allows the use of the standard X70 and future smartphone modems, including the latest Snapdragon 8 Gen 2 smartphone processor. Iridium satellites have polar orbits, so the coverage is from pole to pole. One of the advantages of the Iridium satellite network is that messages can be forwarded from satellite to satellite until an appropriate ground station downlink (“feeder link”) is found. The text message packet also includes location information for emergency services.

A Snapdragon Satellite-capable smartphone does require a specific antenna and support for the satellite connection L-band radio, but no special external antenna is required. That said, the user must position the phone to find the best satellite.

To demonstrate the new service, Qualcomm took a group of press and analysts to a dry lakebed about 40 minutes outside of the Las Vegas strip in order to set the right background for such a service. Ironically, while the location looked remote, it had great 5G coverage! The demonstration involved a prototype phone running a beta of the satellite app. With the prototype, Qualcomm executive Francesco Grilli located an Iridium connection and sent a message to his personal phone…

Continue reading HERE.