Two different US Appeals courts issued two different rulings on privacy-related cases on Tuesday that together deal severe blows to the concept of personal and computer privacy. In Richmond, Virginia, the full Fourth Circuit Court of Appeals, in an
en banc ruling, voted 12-3 that authorities
do not need a warrant to obtain location information based on cell phone location from carriers. In New York City, a bitterly-divided Second Circuit court ruled that the government
can mirror hard drives for one criminal action, and preserve that data indefinitely for use in possible future criminal actions.
The majority of judges in the Fourth Circuit case ruled that users of cellphone services were nominally aware that they were also revealing their location when they used the service, with Judge Diana Motz saying that anyone "who has stepped outside to 'get a signal,' or has warned a caller of a potential loss of service before entering an elevator, understands, on some level, that location matters." The judges ruled that obtaining location data from carriers without a warrant does not violate the Fourth Amendment because it has already been disclosed to a third party (the cellphone provider, as part of its service).
The judgement stems from a previous-century legal theory that says that if one's location has been revealed to anyone, it can also be revealed to law enforcement. The new ruling overturns a previous divided decision from the same court's three-judge panel, which likely reduces the chances of an appeal being heard by the Supreme Court on the matter. The original case centered around authorities using location records to track suspected armed robbers in and around Balitmore in early 2011. Over 221 days, investigators obtained 29,000 location records for the defendants, provided by Sprint without a warrant.
Writing for the dissenting three justices, Judge James Wynn said that users do not understand that their location data is so closely tracked, and do not give ongoing and continuous consent for location data to be shared without a warrant. He added that routine use of a cellphone does not amount to advertising a user's location in the same sense of, for example, using a specific ATM or dialing from a pay phone booth would. Wynn argued that routine location data should require a warrant, and not be exempt. Last month, the Sixth Circuit Court of Appeals also ruled that location data was available to authorities without a warrant in a separate case, but that case is about to be re-heard by the full court.
In the Second Circuit case, the judges ruled that because the government obtained an original warrant that allowed full "mirroring" of the contents of a suspect's hard drives in an earlier criminal action, revisiting that data to obtain evidence in a second case against the same defendant did not violate the Fourth Amendment because the authorities "acted in good faith" and obtained a new warrant in building a new case unrelated to the original search -- a ruling that appalled both privacy groups and the dissenting judge.
The decision opens the door for unlimited and routine mirroring of computer data and the indefinite retention of those files, provided the original context for the mirroring was done under a warrant. Without encryption, the contents of any seized computer could effectively be copied and retained forever on the grounds that the unrelated information might someday be used in a different legal matter.
The case involved an accountant, Stavros Ganias, who was convicted in 2003 of being part of an Army contractor over-billing scandal. The data gathered from the full mirroring of his hard drives was then later searched, under a separate warrant, for information on possible tax-evasion in a 2006 case that developed separately (for which he was subsequently convicted). Since the government already had and retained the mirror image of Ganias hard drives, it only had to request that the court allow a search of the rest of the data not related to the original case.
Ganias and his attorneys argued the case on two fronts: that the government had no right to obtain, let alone keep, data unrelated to the original 2003 warrant in the first place, and that complete mirroring of a suspect's hard drive in hopes of later obtaining other data to be used against a suspect was at minimum a violation of the Fourth Amendment. Ganias had erased the incriminating data from his own hard drives following the original case. Ganias ended up being convicted for tax evasion to a sentence of two years in prison.
Nearly all of the full 13-judge bank ruled that the original 2003 warrant that allowed the mirroring of the hard drives was legal in the original case, but ducked the question of whether the government could retain the mirror images forever, even though the original 2003 case had ended. Ganias argued that evidence obtained in executing the 2006 search warrant should therefore have been suppressed. "We conclude that the Government relied in good faith on the 2006 warrant, and that this reliance was objectively reasonable. Accordingly, we need not decide whether retention of the forensic mirrors violated the Fourth Amendment, and we affirm the judgment of the district court," the court said.
In a blistering 40-page dissent, Judge Denny Chin said that authorities were initially wrong to have seized files from Ganias that were unrelated to the original Army over-billing case, and that it compounded this injustice by retaining those records. "The government did precisely what the Fourth Amendment forbids: it entered Ganias' premises with a warrant to seize certain papers and indiscriminately seized-and retained-all papers instead," Chin said. In the original consideration by a three-judge panel in the case, the court sided with Ganias 2-1 that the law did not allow "officials executing a warrant for the seizure of particular data on a computer to seize and indefinitely retain every file on a computer for use in future criminal proceedings."
The new full-bank rehearing has essentially reversed that opinion. In all of the cases ruled on on Tuesday, the data on the devices was not encrypted -- again setting the stage for a future showdown on personal use of strong encryption.
"The seizure and two-and-a-half year retention of every file on Ganias' computers violated the Fourth Amendment," according to Ganias' attorney, Stanley Twardy. In a brief filed with the court, Twardy said that "at a minimum, the Fourth Amendment requires prompt completion of an off-site review, and return of files outside the warrant's scope," arguing that collecting and keeping unrelated personal data was a clear Constitutional violation, a viewpoint with which Chin agreed.
Once it's up to the reader to come up with the meaning of a document, anything is just a formality. (I say this as someone with a professional background in theological studies, and I've seen what postmodern Biblical interpretation has done to the field... so I can tell you exactly where this is headed. It isn't pretty.)
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