August 8, 2017

Judges declare cell phone records aren’t your property

Your cell phone has no 4th Amendment protection. Solution here. Retweet

If you have a mobile phone, you’ll want us to file an amicus brief in the case of Carpenter v. United States. This now a Supreme Court case. Carpenter is also the replacement for and continuation of our work in the Graham case, where we filed not one, but two amicus briefs.

The Issue at Stake Cell phone tower

Your cell phone company needs to locate your mobile phone in order for it to do many of the wonderful things it does. They use “CSLI” (Cell Site Location Information) to complete your calls and texts as you move around. Stunningly, your government has argued that…

These personal records are not your property.

How is that claim possible? 4A (Fourth Amendment) rights include security “in your persons, houses, papers, and effects.” The answer is…

For more than 40 years, the Supreme Court wandered through a judicial wilderness under a downgraded 4A standard. Instead of treating your person, houses, papers, and effects as your property, they substituted a slippery “reasonable expectation of privacy” rationale. And…

As technology improved, your reasonable expectations shrank.

Along the way, the Court created a tangled web of “privacy tests” to determine which expectations were reasonable. One of those tests was “business records.”

Your mobile phone provider uses CSLI for location access and invoicing. So when federal judges declare CSLI to be business records, they’re saying…

  • CSLI belongs to the cell phone provider — you have no interests. And…
  • If you didn’t want anyone else to know what you were doing, you wouldn’t have used the service!

The business records test means your historical 4A protections exist only by the benevolence of prosecutors. That phone in your pocket or purse means you’ve surrendered your right to be free from search and seizure, for it can become a tracking device or…

A Diary of Your Life

The Fourth Amendment indicates that search warrants must include…

  • A description of the place to be searched
  • The things to be seized

In other words, what’s not listed on a warrant cannot be part of the search. This is to protect you from police state spying. Otherwise, bureaucrats can engage in “fishing expeditions” for mere evidence of any crime they can possibly find to pin on you.

But if the Courts can simply wave a magic wand and declare, “No search occurred” then the 4A is powerless to protect you.

This is what happened to Antoine Jones (U.S. v Jones). Cops attached a tracking device to his car. They tracked him for months, gathering up lots of information about his life. They used the device to fish for evidence, even of future crimes not presently under investigation. Under the old rationale, he had no reasonable expectation of privacy.

Our Landmark Victory

We stepped into the Jones case, at two points, with amicus briefs. We boldly argued that…

  • The privacy rationale had failed
  • The property principle needed to be restored

Others said we were crazy. But the Supreme Court agreed with us. And in the Florida v Jardines decision, one year later, they demonstrated that Jones was no aberration.

We applied the Jones & Jardines decisions in two amicus briefs in the Graham case, where the issue was the use of CSLI “business records.”

The Graham case is on hold, while the High Court considers Carpenter instead. But Carpenter is probably an even better case for us, where we can bring our landmark work in Jones to bear because…

The Sixth Circuit Court of Appeals indicated that the privacy rationale didn’t apply. They even acknowledged the property principle in the Jones case. So we’re in good position to bring these arguments. However…

The Sixth Circuit assumed that the “business records” test could still be used, even though that test is a holdover from the privacy era. Remember, the business records exception means that, in essence, a 4A “search” didn’t even occur.

We want to use the Jones case to instead argue that…

  • The use of CSLI is indeed a 4A search
  • Carpenter has a property interest in these records

After all, every cell phone subscriber, including you…

  • Pays for these records
  • Generates these records with property that is on their person

On top of that, you shouldn’t have to hide in a cabin and forgo technology to retain your Fourth Amendment rights!

We’ve filed multiple amicus briefs in 4A cases in recent years. We need your financial help to file this brief. This is part of an ongoing and successful effort. In fact…

We’ve filed two 4A briefs in the last four weeks!

But in our experience, it’s strenuous if not impossible to raise sufficient funds when we just came calling with a case.

To make matters worse, our three best donors to these amicus briefs won’t be helping to “carry the load”…

  • One passed away
  • Another just suffered a severe business event
  • The other takes a different position on CSLI (an argument we’ll address in the P.S.)

Still, we cannot “fail to file” when the case is…

  • So relevant to our landmark Jones argument
  • Going before the highest court in the land

We MUST locate a donor who wants to keep this amicus brief program alive!

That means, we need a generous donor willing to give $1,000 to $2,000 to our amicus brief program.

Most people cannot afford that. Please know that when many people respond, contributions of various sizes, from small to large, add up to a lot.

And, at this point, monthly pledgers are why we keep taking these cases. Consider joining them. The more pledgers we have, the more aggressive we can be in our mission.

DownsizeDC.org is partnering with the Downsize DC Foundation, home of the Zero Aggression Project. When you click this link, you’ll be taken to the ZAP contribution form. That way, your contribution can be tax-deductible, if you itemize.

We’ll send an email copy of the brief to every donor who specifies, in the “comment section” of the contribution form, that they want a copy. Be sure to request yours.

Jim Babka & Perry Willis
DownsizeDC.org, Inc.
& Downsize DC Foundation (Zero Aggression)

P.S. Not every libertarian initially agrees with us about CSLI. They maintain that CSLI are indeed business records. That is, they are the property of cell phone providers. Therefore, those companies can give out whatever information they see fit. But this argument only makes a bad situation, worse.

The cell phone companies are spectrum licensed, heavily regulated, and subject to industry-specific taxation. As a condition of their license, they are required to just hand over a great deal of information — warrants be damned (as we explained in last month’s Zodhiates case — link unavailable right now).

Beyond that, there’s a reason cell phone providers seemingly roll over and show their belly when prosecutors call. They’re extraordinarily compliant because they know they must cooperate with the government or put their business at risk.

Thus, there is no “market solution,” whereby an individual can simply dodge the companies that readily cooperate with The State, and choose, instead, a service that focuses on protecting their privacy. Thus…

A libertarian should oppose such coercion without violating their principles. The argument that CSLI are your records (your “papers,” in 18th-century language), relying on a device that’s on your person, is both Constitutional and principled. So please make your tax-deductible contribution using the secure form of the Zero Aggression Project (Downsize DC Foundation).

If your comment is off-topic for this post, please email us at feedback@downsizedc.org

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