For first time, state’s highest court extends right to privacy to cellphone location data

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By John R. Ellement and Danny McDonald,  April 23, 2019.

The state’s highest court for the first time on Tuesday extended the right to privacy to encompass cellphone location data, but preserved the right of law enforcement to “ping” cellphones in emergencies, such as a search for an armed murder suspect.

In a unanimous decision, the Supreme Judicial Court held that state constitutional protections against unwarranted and excessive government intrusion into personal lives must keep pace with technological innovations.

Cellphones are “almost a feature of human anatomy,” with tracking technology that police can “ping” to learn a person’s current location without their knowledge, Justice Scott L. Kafker wrote for the court. “This extraordinarily powerful surveillance tool finds no analog in the traditional surveillance methods of law enforcement and therefore grants police unfettered access ‘to a category of information otherwise unknowable.’ ”

The ruling prohibits police from unilaterally demanding that phone companies turn over cell tower location information. In most circumstances, police will now need a search warrant to obtain the information, the court ruled.

“The power of such unauthorized surveillance . . . is too susceptible to being exercised arbitrarily by law enforcement — precisely the type of governmental conduct against which the framers sought to guard,’’ Kafker wrote.

Matthew R. Segal, the legal director for the American Civil Liberties Union Foundation of Massachusetts, hailed the ruling as a “truly important decision.”

“It reaches new territory because it’s holding that a single ping of a cellphone is a search that would normally require a warrant,” he said.

The practices of law enforcement agencies in the state, Segal said, “are a bit opaque.”

“Only they know how often they have been warrantlessly manipulating electronic devices to learn information,” he said.

The warrant requirement, Segal said, can be “satisfied by good police work.” He did not think the decision would be onerous for law enforcement.

In its decision, the SJC ruled law enforcement can still require cellphone companies to ping phones without a warrant if there are “exigent circumstances,” such as danger to the public or a threat that the suspect will flee or destroy evidence.

Karen Pita Loor, a Boston University law professor, also applauded the ruling, saying it “places limits on a police officer’s ability essentially to obtain data without probable cause.”

She said the ruling was “an expansion” of a Supreme Court decision from last year that found that the government generally needs a warrant to collect troves of location data about the customers of cellphone companies. The Fourth Amendment, she said, offers protections from government intrusion…

Continue reading at BostonGlobe.com HERE

Federal bills would let state prisons jam cellphone signals

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By MEG KINNARD, Associated Press COLUMBIA, S.C. — Mar 28, 2019

Federal legislation proposed Thursday would give state prison officials the ability they have long sought to jam the signals of cellphones smuggled to inmates within their walls.

U.S. Sen. Tom Cotton of Arkansas and U.S. Rep. David Kustoff of Tennessee introduced companion bills in both chambers, The Associated Press has learned.

The legislation could help provide a solution to a problem prison officials have said represents the top security threat to their institutions. Corrections chiefs across the country have long argued for the ability to jam the signals, saying the phones – smuggled into their institutions by the thousands, by visitors, errant employees, and even delivered by drone — are dangerous because inmates use them to carry out crimes and plot violence both inside and outside prison.

But the Federal Communications Commission, which regulates the nation’s airwaves, has said a decades-old prohibition on interrupting signals at state-level institutions prevents the agency from permitting jamming on that level. Wireless industry groups have said they worry signal-blocking technologies could thwart legal calls.

Prison officials, including South Carolina Corrections Director Bryan Stirling, have pushed for the ability to jam signals, saying it’s the best way to combat the dangerous devices. In 2017, Stirling testified at an FCC hearing in Washington alongside Robert Johnson, a former South Carolina corrections officer nearly killed in 2010 in a hit orchestrated by an inmate using an illegal phone…

Continue reading at ABC News HERE.

On a cell phone during a car crash? Nevada may let cops use technology to find out

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Ryan Tarinelli, Associated Press
Published March 17, 2019

The infotainment technology that automakers are cramming into the dashboard of new vehicles is making drivers take their eyes off the road and hands off the wheel for dangerously long periods of time, an AAA study says. (Oct. 5) AP

CARSON CITY, Nev. – Most states ban texting behind the wheel, but a legislative proposal could make Nevada one of the first states to allow police to use a contentious technology to find out if a person was using a cellphone during a car crash.

The measure is igniting privacy concerns and has led lawmakers to question the practicality of the technology, even while acknowledging the threat of distracted driving.

The future of the Nevada proposal isn’t clear. A similar measure introduced in 2017 failed in the New York Legislature, but lawmakers are considering it again.

Law enforcement officials argue that distracted driving is underreported and that weak punishments do little to stop drivers from texting, scrolling or otherwise using their phones. Adding to the problem, they say there is no consistent police practice that holds those drivers accountable for traffic crashes, unlike drunken driving.

Continue reading at USAToday.com HERE

Court Rejects Carpenter Argument for Third Party Subpoena of Google Subscriber Info: eDiscovery Case Law

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In U.S. v. Therrien, No. 2:18-cr-00085 (D. Vt. Mar. 13, 2019), Vermont District Judge Christina Reiss denied the defendant’s motion to suppress evidence obtained via a subpoena of Google for subscriber information, rejecting the defendant’s argument that the United States Supreme Court decision in Carpenter v. US forecloses the government’s ability to obtain this type of data without a warrant.

Case Background

In this case related to a one count Indictment against the defendant that he knowingly transported child pornography, an order for eighty-five photograph prints was placed with an online company in February 2018.  An employee of the online company’s outsource print provider informed the Federal Bureau of Investigations that it was concerned that some of the photographs may contain child pornography. Law enforcement subsequently discovered an e-mail address that was associated with the order.

A grand jury subpoena was issued in March 2018 to obtain subscriber information from Google pertaining to the account associated with the email address. In response, Google produced subscriber information, services utilized by the account, the date the account was created, the date and time of the last login, and the IP addresses associated with the account from December 6, 2017 through March 15, 2018. Asserting that law enforcement violated the Fourth Amendment in obtaining records from Google without a warrant, the defendant sought suppression of all evidence obtained pursuant to the grand jury subpoena, citing Carpenter v. US.

Judge’s Ruling

While noting that, in Carpenter, the Supreme Court held that cell-site location information (“CSLI”) was not subject to the third-party doctrine, Judge Reiss also noted that SCOTUS reasoned that “the notion that an individual has a reduced expectation of privacy in information knowingly shared with another” and that “reasoned that because there was no way for individuals possessing cell phones to avoid generating CSLI and because cell phones are now effectively a necessity of daily life, it was unreasonable to conclude that an individual voluntarily exposed CSLI information to a third party.”…

Continue reading at www.jdsupra.com HERE

Senators Question DOJ’s Surveillance of Americans’ Cell Phone Location Records

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By Brandi Vincent, March 22, 2019,

Lawmakers want the attorney general to explain how the collection of cellular location data has changed following a recent SCOTUS decision.

A bipartisan group of senators questioned the Justice Department this week regarding how the government’s treatment of cellphone-generated location data in national security cases has changed in lieu of the Supreme Court decision in Carpenter v. United States last June.

The Carpenter case addressed the application of the Fourth Amendment to cell-site location information, or CSLI, which are geolocation records produced by users’ cell phones communicating with cell towers and stored by wireless providers. The court held that because CSLI provides “an intimate window into a person’s life,” police must obtain a warrant to collect it.

Sens. Ron Wyden, D-Ore., Rand Paul, R-Ky., Patrick Leahy, D-Vt., and Steve Daines, R-Mont., penned a letter to recently appointed Attorney General William Barr probing his views on the broad collection of cellular metadata and asking a series of questions encompassing how the Carpenter decision has impacted the practices and policies of government surveillance.

“In light of the Carpenter decision and the recognition of Americans’ legitimate interest in privacy around CSLI, the American public deserves to know how the intelligence community treats these records and other sensitive metadata in national security cases,” the senators wrote.

Continue reading at www.nextgov.com HERE