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An attempt to thwart the 4th Amendment of

the United States Constitution in order to


cave to the whims of federal drug agents
has led to this:

Court Says Police Can


Install Cameras On Your
Property Without Warrant
If Your Property Is A
'Field',
Soon enough, 'field' will be redefined to
include anything with a single weed
growing in it.
Privacy
by Timothy Geigner
Wed, Oct 31st 2012 12:48pm
Filed Under:
4th amendment,privacy,surveillance

from the because-that-won't-be-abused dept

We just heard some good news about the protection of the 4th
Amendment with regards to cell phone data. i However, we've
also learned that some law enforcement officials apparently
find getting warrants to read our email to be incredibly
annoying. These LEOs shouldn't fret too much as they now have
some good news of their own -- they apparently don't need a
warrant to turn your property into a movie set if your
property resembles an open field.
That's the ruling from Green Bay, Wisconsin, where the fight

against the world's mildest drug (marijuana) is


apparently worth twisting the 4th Amendment into a giant
pretzel.

U.S. District Dumbass William Griesbach ruled that it was


reasonable for Drug Enforcement Administration agents to
enter rural property without permission -- and without a
warrant -- to install multiple "covert digital surveillance
cameras" in hopes of uncovering evidence that 30 to 40
marijuana plants were being grown.
This is in response to the two defendants in the case seeking
to have footage from said surveillance cameras thrown out in
their court case on unreasonable search and seizure grounds.
Judge Griesbach made this ruling on the recommendation of US
Magistrate William Callahan, who based his position on a US
Supreme Court Case ruling that open fields were not covered
under the 4th Amendment and didn't require a warrant. Perhaps
ironically, this ruling was made in 1984, a time when the
prevalence and sophistication of such surveillance equipment
wasn't what it is today.
Still, I'm struck by two problems in this ruling (and the
previous Supreme Court ruling as well). First, the two
defendants in this case had fences and signs up around their
property that said "No Trespassing", so I'm not sure if the
definition of "open field" fully applies here. Secondly, even
if you argued that it did apply, how is this exception to the
4th Amendment not completely throwing the door wide open for
abuse? What, after all, constitutes an "open field"? Is there
a certain acreage criteria that needs to be met? A certain
number of trees or shrubberies? Rabbit hole count?
And this doorway to abuse has been opened all because police
didn't want to bother to get a search warrant to put video
equipment on private property.

Judge Protects Cellphone Data On 4th


Amendment Grounds, Cites Government's
Technological Ignorance
i

from the they're-RIGHTS,-not-INCONVENIENCES dept

Various US government agencies have spent a lot of time


and energy hoping to ensnare as much cell phone data as
possible without having to deal with the "barriers"
erected by the Fourth Amendment. The feds, along with Los
Angeles law enforcement agencies, Hhave bypassedH the
protections of the Fourth Amendment by deploying roving
cell phone trackers that mimic mobile phone towers. The
FISA Amendments Act has been used as a "blank check" for
wholesale spying on Americans and has been abused often
enough that the Director of National Intelligence
was Hforced to admitH these Fourth Amendment violations
publicly.
The good news is that a few of these overreaches are
receiving judicial pushback. Orin Kerr at the Volokh
Conspiracy Hhas a very brief writeup of a recent shutdown
of another cellphone-related fishing expedition led by an
assistant US Attorney.HAn attempt was made to acquire
records for ALL cell phones utilizing four different
towers in the area of a specific crime at the time of the
event. As Kerr notes, this ruling refers to the Fifth
Circuit court decision that found cell phone data to be
protected under the Fourth Amendment, thus Hrequiring a
warrantH to access it.
Magistrate Judge Smith points out that part of the issue
is that the principals involved (the assistant US Attorney
and a special agent) seemed to lack essential knowledge of
the underlying technology, and that this lack of knowledge
prevented them from recognizing the overreach of their
request:

Moreover, it is problematic that neither the assistant


United States Attorney nor the special agent truly

understood the technology involved in the requested


applications. See In re the Application of the U.S. for an
Order Authorizing the Installation and Use of a Pen
Register and Trap and Trace Device, F.Supp.2d ,
2012 WL 2120492, at *2 (S.D. Tex. June 2, 2012). Without
such an understanding, they cannot appreciate the
constitutional implications of their requests. They are
essentially asking for a warrant in support of a very
broad and invasive search affecting likely hundreds of
individuals in violation of the Fourth Amendment.
There has been a Hlot of discussionH here at Techdirt
regarding the incredible Hlack of knowledgeH present in
those seeking to regulate or exploit various technologies.
Considering the amount of possible collateral damage and
the heightened chance of rights violations, you'd think
these entities would be exercising maximum caution before
tampering with something they don't understand. Instead,
the common approach is to use the ends (safety, crime
prevention, etc.) to justify the missteps and rightstrampling of the means, leaving the judicial system and
various trampled citizens to sort out the mess.
Judge Smith quotes the Fourth Amendment and points out
that warrants must be issued and only "upon probable
cause" before continuing to run down the list of wrongs in
this request.

Finally, there is no discussion about what the Government


intends to do with all of the data related to innocent
people who are not the target of the criminal
investigation. In one criminal investigation, the
Government received the names, cell phone numbers, and
subscriber information of 179 innocent individuals. See
United States v. Soto, No. 3:09CR200 (D.Conn. May 18,
2010) (Memorandum in Support of Motion to Suppress).
Although the use of a court-sanctioned cell tower dump
invariably leads to such information being provided to the
Government, in order to receive such data, the Government

at a minimum should have a protocol to address how to


handle this sensitive private information.
But, as Smith points out, the government doesn't have a
protocol in place, even more than two years down the road.

Although this issue was raised at the hearing, the


Government has not addressed it to date.
This is hardly new territory for government agencies. The
TSA has had Hnearly 20 monthsH to begin taking public
comments on the use of various body imaging scanners, but
despite two trips to the DC Circuit Court, it has yet to
begin this process, something generally
undertaken before implenting a new system. If it's
something the government feels may be unpopular with the
public, it tends to attempt to stall indefinitely, an
(in)action that (again) places the burden back on the
courts and the general public.
But, at least in this case, Judge Smith is using this lack
of action against the government representatives.

This failure to address the privacy rights for the Fourth


Amendment concerns of these innocent subscribers whose
information will be compromised as a request of the cell
tower dump is another factor warranting the denial of the
application.
It's a good sign that stalling tactics may hurt more than
help in the future. Many government and law enforcement
agencies are still looking for any loophole in current
laws in order to bypass the limitations placed on them by
the Constitution. There's still a long way to go before
there's anything resembling an equitable relationship
between the general public and those in power, but we'll
take everything we can get and (hopefully) receive more
help pushing back against these intrusions.

In re U.S. ex rel. Order Pursuant to 18 U.S.C. Section 2703(d), Slip Copy (2012)

2012 WL 4717778
Only the Westlaw citation is currently available.
United States District Court,
S.D. Texas,
Corpus Christi Division.
In the Matter of the Application of the UNITED
STATES of America for an ORDER PURSUANT
TO 18 U.S.C. 2703(D) Directing Providers to
Provide Historical Cell Site Locations Records.
C.R. Nos. C12670M, C12671M, C
12672M, C12673M. | Sept. 26, 2012.
Opinion
ORDER DENYING THE GOVERNMENT'S
REQUESTS FOR CELL TOWER DUMPS

had difficulties discussing or explaining the technology to be


used.
The Government's attorney also explained that there was a
special agent in Dallas who serves as a Government expert
regarding these matters. This expert would review all of the
data obtained and provide guidance as to what direction the
investigation of the subject should take. Specifically, after
analyzing the raw data, he would determine a number of
cell phones to target in the investigation. The data obtained
would not only show all of the cell phones that were in the
vicinity of the crime scene, but likely would demonstrate the
direction the calls were hitting the cell tower, which in turn
would enable the Government to triangulate the path of the
cell phone's journey. The assistant United States Attorney
could not explain much more about the expert, his role, or
his insights into the electronic surveillance. However, he did
acknowledge that there would in all likelihood be a substantial
amount of data produced pursuant to the requested court
order.

BRIAN L. OWSLEY, United States Magistrate Judge.


ANALYSIS
*1 These four matters come before the Court pursuant to a
written and sworn application pursuant to 18 U.S.C. 2703(d)
by an assistant United States Attorney who is an attorney
for the Government as defined by Rule 1(b)(1)(B) of the
Federal Rules of Criminal Procedure. Specifically, these four
applications seek an Order directing that all historical cell
site records from four separate telecommunications providers
for specific towers be disclosed to the Government. Each
application is the same except for seeking data from different
providers regarding different cell towers.
BACKGROUND
In an ex parte hearing on July 3, 2012, the assistant United
States Attorney acknowledged that the Government was
seeking a cell tower dump in each of the four applications.
Specifically, he sought all telephone numbers and all other
subscriber information for the hour before and the hour after
the crime being investigated. The victim of the crime had a
cell phone that was taken by the subject of the investigation
when he left the crime scene. Moreover, it is believed that the
subject of the investigation also has a cell phone.
When discussing the technology with the assistant United
States Attorney, it became apparent that he did not understand
it well. Similarly, the special agent present at the hearing

The Government relies on 2703 in its request for approval


of its cell tower dump requests. That statute does not address
cell tower dumps. Instead, pursuant to 2703, Congress has
authorized the Government to obtain customer records from
telecommunications providers
A governmental entity may require a provider of electronic
communication service or remote computing service to
disclose a record or other information pertaining to a
subscriber to or customer of such service (not including the
contents of communications) only when the governmental
entity
(A) obtains a warrant issued using the procedures described
in the Federal Rules of Criminal Procedure (or, in the case
of a State court, issued using State warrant procedures) by
a court of competent jurisdiction;
*2 (B) obtains a court order for such disclosure under
subsection (d) of this section;
(C) has the consent of the subscriber or customer to such
disclosure;
(D) submits a formal written request relevant to a law
enforcement investigation concerning telemarketing fraud
for the name, address, and place of business of a subscriber

2012 Thomson Reuters. No claim to original U.S. Government Works.

In re U.S. ex rel. Order Pursuant to 18 U.S.C. Section 2703(d), Slip Copy (2012)

or customer of such provider, which subscriber or customer


is engaged in telemarketing ...; or
(E) seeks information under paragraph (2).
18 U.S.C. 2703(c)(1). The subscriber or customer
information may include the person's name, address;
telephone call records, including times and durations;
lengths and types of services; subscriber number or
identity; and means and source of payment. 18 U.S.C.
2703(c)(2). Obtaining a court order, is simply a matter
of a law enforcement officer providing the court with
specific and articulable facts showing that there are
reasonable grounds to believe that the contents of a wire or
electronic communication, or the records or other information
sought, are relevant and material to an ongoing criminal
information. 18 U.S.C. 2703(d) (emphases added).
Regarding the specific and articulable facts standard, some
courts have rejected arguments that probable cause and the
Fourth Amendment must be applied to requests for historical
cell site data. See United States v. Graham, 846 F.Supp.2d
384, 2012 WL 691531, at *1618 (D.Md. Mar. 1, 2012);
United States v. Benford, No. 2:09CR86, 2010 WL 1266507,
at *23 (N.D.Ind. Mar. 26, 2010) (unpublished); see also
In re Applications of United States for Orders Pursuant To
Title 18, U.S.Code Section 2703(d), 509 F.Supp.2d 76, 80
81 (D.Mass.2007) (reversing Applications of United States
for Orders Pursuant To Title 18, U.S.Code Section 2703(d)
to Disclose Subscriber Information and Historical Cell Site
Information, 509 F.Supp.2d 64 (D.Mass.2007) in which a
magistrate judge held that probable cause was required for
the disclosure of historical cell site information). Other courts
have determined that probable cause is necessary for such
information. See In the Application of the United States for
an Order Authorizing The Release of Historical CellSite
Information, 809 F.Supp.2d 113, 11820 (E.D.N.Y.2011);
In the Application of the United States for Historical Cell
Site Data, 747 F.Supp.2d. 827, 83740 (S.D.Tex.2010); In re
Application of United States For an Order Authorizing the
Release of Historical CellSite Information, 736 F.Supp.2d
578, 579 (E.D.N.Y.2010); In the Application of the United
States of America For and [sic] Order: (1) Authorizing the
Use of a Pen Register and Trap and Trace Device; (2)
Authorizing Release of Subscriber and Other Information;
and (3) Authorizing the Disclosure of LocationBased
Services, 727 F.Supp.2d 571, 58384 (W.D.Tex.2010); In re
Application of United States For an Order Pursuant to 18
U.S.C. 2703(d), Nos. C12755M, C12756M, C12
757M, 2012 WL 3260215, at *2 (S.D.Tex. July 30, 2012)

(unpublished). In discussing the appropriate standard, the


Eastern District of New York explained that a request for cell
site information raises a greater concern than a request for a
tracking device on a vehicle
*3 The cell-site-location records at
issue here currently enable the tracking
of the vast majority of Americans.
Thus, the collection of cell-sitelocation records effectively enables
mass or wholesale electronic
surveillance, and raises greater Fourth
Amendment concerns than a single
electronically surveilled car trip. This
further supports the court's conclusion
that cell-phone users maintain a
reasonable expectation of privacy in
long-term cell-site-location records
and that the Government's obtaining
these records constitutes a Fourth
Amendment search.
In the Application of the United States for an Order
Authorizing The Release of Historical CellSite Information,
809 F.Supp.2d at 11920. Similarly, the Western District of
Texas has explained that it will insist on strict adherence
to the requirements of Rule 41 on all requests for CSLI,
including requests for historical data. The warrants will be
granted only on a showing of probable cause.... In the
Application of the United States of America For and [sic]
Order: (1) Authorizing the Use of a Pen Register and Trap
and Trace Device; (2) Authorizing Release of Subscriber and
Other Information; and (3) Authorizing the Disclosure of
LocationBased Services, 727 F.Supp.2d at 58384.
This Court has concluded that given refinements in location
technology regarding cell site information that access to such
data enables that person to plot with great precision where
the cell phone user has been during a given time period.
In the Application of the United States for Historical Cell
Site Data, 747 F.Supp.2d. at 83537. Consequently, cell site
data are protected pursuant to the Fourth Amendment from
warrantless searches. Id. at 83840. Thus, the Government
could obtain the cell site data only by establishing probable
cause pursuant to Rule 41 of the Federal Rules of Criminal
Procedure. On appeal pursuant to 28 U .S.C. 636, the
Court overruled the Government's objections explaining
that [w]hen the government requests records from cellular
services, data disclosing the location of the telephone at
the time of particular calls may be acquired only by a

2012 Thomson Reuters. No claim to original U.S. Government Works.

In re U.S. ex rel. Order Pursuant to 18 U.S.C. Section 2703(d), Slip Copy (2012)

warrant issued on probable cause. In the Applications of


the United States for Historical Cell Site Data, Misc. No.
H11223 (S.D.Tex. Nov. 11, 2011) (Order on Objections)
(unpublished) (citing U.S. Const. amend 4). Moreover,
because the requested records would show the date, time,
called number, and location of when the call was made,
this information was constitutionally protected from this
intrusion. Id. Finally, the Court determined that [t]he
standard under the Stored Communications Act, 18 U.S.C.
2703(d), is below that required by the Constitution. Id.
Here, the assistant United States Attorney simply relied on an
application based on specific and articulable facts standard.
He has not submitted an affidavit pursuant to Rule 41 of the
Federal Rules of Criminal Procedure demonstrating probable
cause supporting the request for the records. This Court has
concluded that such requests must be made based on the
probable cause standard.
*4 Moreover, it is problematic that neither the assistant
United States Attorney nor the special agent truly understood
the technology involved in the requested applications. See
In re the Application of the U.S. for an Order Authorizing
the Installation and Use of a Pen Register and Trap and
Trace Device, F.Supp.2d , 2012 WL 2120492, at
*2 (S.D. Tex. June 2, 2012). Without such an understanding,
they cannot appreciate the constitutional implications of
their requests. They are essentially asking for a warrant
in support of a very broad and invasive search affecting
likely hundreds of individuals in violation of the Fourth
Amendment. The Constitution mandates that [t]he right of
the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures. U.S.
End of Document

Const. amend IV. It further provides that no Warrants shall


issue, but upon probable cause. Id.; see also Fed.R.Crim.P.
41 (addressing the issuance of warrants). There is nothing
from the Government in its four applications to support the
position that the specific and articulable facts standard and
2703(d) apply to cell tower dumps.
Finally, there is no discussion about what the Government
intends to do with all of the data related to innocent people
who are not the target of the criminal investigation. In
one criminal investigation, the Government received the
names, cell phone numbers, and subscriber information
of 179 innocent individuals. See United States v. Soto,
No. 3:09CR200 (D.Conn. May 18, 2010) (Memorandum
in Support of Motion to Suppress). Although the use of a
court-sanctioned cell tower dump invariably leads to such
information being provided to the Government, in order to
receive such data, the Government at a minimum should have
a protocol to address how to handle this sensitive private
information. Although this issue was raised at the hearing,
the Government has not addressed it to date. This failure
to address the privacy rights for the Fourth Amendment
concerns of these innocent subscribers whose information
will be compromised as a request of the cell tower dump is
another factor warranting the denial of the application.
CONCLUSION
Accordingly, the Government's four applications pursuant to
18 U.S.C. 2703(d) requesting historical cell site data are
denied without prejudice.
ORDERED.
2012 Thomson Reuters. No claim to original U.S. Government Works.

2012 Thomson Reuters. No claim to original U.S. Government Works.