This episode is made possible in part by the new Nullification Movie. Now available for order at tenthamendmentcenter.com/movie
According to a report from the Electronic Frontier Foundation, in order to Make Sure that criminals get no location privacy, the 6th Circuit federal court kills it for everyone else too.
As part of an ongoing investigation into a drug trafficking organization, DEA agents obtained approval from a federal magistrate judge to access the “subscriber information, cell site information, GPS real-time location, and ‘ping’ data” from a pre-paid wireless phone through the use of an admininstrative order (PDF) issued under the Stored Communications Act, which does not require “probable cause” like a search warrant. On appeal the defendant Melvin Skinner, argued that the three day warrantless cell phone tracking violated the Fourth Amendment, but the Sixth Circuit disagreed.
In what can only be described as a results-oriented opinion, the court found Skinner had no reasonable expectation of privacy in the cell phone location data because “if a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal.” Otherwise, “technology would help criminals but not the police.” In other words, because cell phones can be used to commit crimes, there can’t be any Fourth Amendment privacy rights in them. If this sounds like an over-simplistic description of the legal reasoning in an opinion we disagree with, the sad reality is that the court’s conclusion really did boil down to this shallow understanding of the law.
Somehow, the Sixth Circuit lost sight of the fact that its attempt to ensure criminals cannot “use modern technological devices to carry out criminal acts” means that innocent people will have to lose their privacy rights. Judge Berzon of the Ninth Circuit recently noted a fear that “understandable abhorrence” of child pornography crimes “can infect judicial judgment” and lead to incorrect legal results that erode constitutional protections against intrusive computer searches for everyone. This fear is even greater when the issue before a court is the scope of privacy protections for a cell phone, a device carried by far more innocent people than criminals. Judge Berzon wrote judges must “remember that the protections of the Fourth Amendment do not depend on the nature of the suspected criminal activity, any more than they do on the race or gender of the suspect.”
According to a report from Joel Poindexter, a confederacy of professional sports leagues and the NCAA have filed suit against New Jersey, in attempt to prevent the people of the state from gambling there legally.Details