Re: Court Orders Gov't To Disclose GPS Tracking Data

It fortunately seems that not all US Judges take side with the funny idea
that, when you carry a cell phone you voluntarily share your location, hence
you've no right to privacy.

http://privacysos.org/node/301
Judge says government needs warrant for cell location data
In a decision handed down Monday in the Eastern District of New York, Judge
Nicolas Garaufis sided with privacy rights advocates against the federal
government's plea for warrantless access to the historical cell phone
location data of a suspect in a law enforcement investigation.

The judge argued forcefully that rapid development and expansion of mobile
technology does not give the government a green light to track people's
movements without a judge's permission.

 The fiction that the vast majority of the American population consents to
warrantless government access to the records of a significant share of their
movements by 'choosing' to carry a cell phone must be rejected. In light of
drastic developments in technology, the Fourth Amendment doctrine must
evolve to preserve cell-phone user's reasonable expectation of privacy in
cumulative cell-site-location records.



On Fri, Sep 9, 2011 at 12:05 AM, Bjoern Hoehrmann <derhoermi@gmx.net> wrote:

> * David Singer wrote:
> >There was a comment on slashdot pointing out a seeming contradiction.
> >
> >A.  We can place gps devices on people's cars and track them without a
> >warrant because their cars are in public places and they have no
> >expectation of privacy.
> >
> >B.  We cannot release the records because that would violate their
> >privacy.
> >
> >Can they both be true?
>
> Your question is based on the idea that while you are driving a car your
> privacy cannot be affected in any way, everybody could for instance pub-
> lish everything they know about you in the national press and you could
> do nothing about that as your privacy cannot be violated while you drive
> a car. That's obviously nonsense, you would rather have to consider more
> carefully how privacy is affected by information about your car's where-
> abouts being collected and possibly disclosed, versus how it is affected
> by disclosure of law enforcement's interest in your car's movements. It
> seems obvious that these are qualitatively different cases, so it's not
> entirely implausible to make arguments along these lines.
>
> Whether the two notions are actually incompatible depends on a number of
> factors. Cultures differ for instance in whether criminal suspects are
> personally identified in the press alongside details of the cases. Where
> it is the societal norm, disclosure of this kind of information affects
> individuals less than in places where this practise is largely outlawed.
> If such information can be used by lenders, insurers, or employers, then
> individuals are affected more than if laws against that are enforced. So
> the argument would be that public disclosure of the records has greater
> privacy implications than creating them and keeping them confidential.
> Whether that is so and justifies treating the two cases differently can
> only be answered within a larger context.
>
> (It is worth noting that untrustworthy justice systems will be worked
> around with typically detrimental effects, which is why we try to keep
> them fair and just. But we can't have every individual involved worry
> about the full implications of everything they do all the time, so we
> allow some bias and install checks and balances so those biases cancel
> each other out. A police officer should be slightly biased towards, say,
> searching someone's house for evidence, while a judge should be slight-
> ly biased towards protecting this intimate space, in order to highlight
> grey areas where extra effort is required to ensure decisions stand up
> to later scrutiny.
>
> If it was just up to the police officer, it would be easy to later ask
> whether he considered all the points a prosecutor or judge or lawyer or
> the public at large would, and we would likey say no, that's unlikely.
> Mostly if he decided to conduct the search, because as it is, we largely
> assume this bias to be present, so if he decides against searching, we
> are biased towards assuming that the case for searching was outside the
> grey area. But as this becomes the norm, the expectations would shift,
> it would become the police officer's sole responsiblity to ensure the
> systems stays just and fair, even though we do not consider him able to
> all by himself, not in a manner that stands up to scrutiny.
>
> Removing judges from justice related decision making processes removes
> skills we attribute to judges, and only judges, from them, which would
> render decisions less skillful, meaning "worse", if you buy into this
> whole "enlightenment" thing and believe this kind of forced discourse
> actually improves and solidifies relevant decisions. This can be worse
> than whatever one might positively gain from it. As such I would look,
> with the issue here, first at the dynamics behind the distribution of
> power and responsibility before I would consider the privacy aspects.)
> --
> Björn Höhrmann · mailto:bjoern@hoehrmann.de · http://bjoern.hoehrmann.de
> Am Badedeich 7 · Telefon: +49(0)160/4415681 · http://www.bjoernsworld..de
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>
>