This is just one of the many cases of the Obama administration fighting to hold on to unconstitutional powers such as warrantless wiretapping, the power to indefinitely detain Americans without charge or trial, and even their supposed right to refuse to explain why they believe they have the authority to assassinate Americans.
In court the administration cited a 1976 Supreme Court decision in the case United States v. Miller which essentially stated that documents like banking records are actually “third-party records,” thus removing any right to privacy.
The move was made in the course of the re-trial of an alleged drug dealer whose conviction was overturned in January by the Supreme Court. At the time, the Supreme Court ruled that the GPS tracking device employed by the government was, in fact, an illegal search.
The Supreme Court decision was relatively major seeing as it led the Federal Bureau of Investigation (FBI) to turn off a whopping 3,000 GPS-tracking devices in the field.
After the vehicle tracking data – spanning nearly a month of travel – was thrown out, the government was forced to argue that they legally obtained the cellphone location records of the defendant, Antoine Jones. Unsurprisingly, they obtained the data without a warrant.
“A customer’s Fourth Amendment rights are not violated when the phone company reveals to the government its own records that were never in the possession of the customer,” stated the Obama administration in a court filing dated September 4, 2012, provided by Wired’s Threat Level.
“When a cell phone user transmits a signal to a cell tower for his call to be connected, he thereby assumes the risk that the cell phone provider will create its own internal record of which of the company’s towers handles the call,” the administration continued in the document. “Thus, it makes no difference if some users have never thought about how their cell phones work; a cell phone user can have no expectation of privacy in cell-site information.”
Jones now has to fight the government’s claim that they do not have to get a probable cause warrant for the location data from his cellphone either, with his attorney Eduardo Balarezo writing to U.S. District Judge Ellen Huvelle, “In this case, the government seeks to do with cell site data what it cannot do with the suppressed GPS data.”
That seems like a quite accurate assessment from Balarezo, but obviously the government doesn’t share the sentiment.
“Defendant’s motion to suppress cell-site location records cannot succeed under any theory. To begin with, no reasonable expectation of privacy exists in the routine business records obtained from the wireless carrier in this case, both because they are third-party records and because in any event the cell-site location information obtained here is too imprecise to place a wireless phone inside a constitutionally protected space,” wrote the Obama administration in a letter to the judge.
It will be quite interesting to see how this plays out because the lower courts have been divided over the need for a probable cause warrant in obtaining location tracking information, just as they were over the GPS data.
The justification given in 2005 when the government first requested Jones’ so-called “cell-site data” was essentially that they needed the information in order to discover where Jones ran his drug operation from.
However, if they had any legitimate evidence of Jones’ activities, one would assume that they could just obtain a probable cause warrant before requesting the data.
“Knowing the location of the trafficker when such telephone calls are made will assist law enforcement in discovering the location of the premises in which the trafficker maintains his supply narcotics, paraphernalia used in narcotics trafficking such as cutting and packaging materials, and other evident of illegal narcotics trafficking, including records and financial information,” wrote the government in 2005.
With the GPS data being thrown out of court and thus along with it the conviction of Jones and the life term he was to serve, the cellphone location data is all the government has left in their quest to put Jones behind bars and set a precedent which would allow them to regularly use location data in court without obtaining a warrant.
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