Cellphone Location Information: Warrant Required?

 

stockOn Wednesday a federal appeals court held that the government generally needs a warrant in order to inspect one’s past cellphone location data. The three-judge panel from the U.S. Court of Appeals for the Fourth Circuit found that cellphone users have “an objectively reasonable expectation of privacy” in cell site location information (CSLI). (United States v. Graham, No. 12-4659 (4th Cir. Aug. 5, 2015).)

Where Were We?

In the case that led to the ruling, a federal jury convicted two men of charges related to several armed robberies in the Baltimore area. Officers nabbed the suspects shortly after the last robbery, then seized various items, among them their cellphones.

The government gathered court orders granting access to the phones’ CSLI. Pursuant to those orders, the phone’s service provider (Sprint/Nextel) handed over seven months’ worth of CSLI records. Prosecutors used those records to prove the defendants’ whereabouts at various times surrounding the robberies.

In the course of its opinion, the Fourth Circuit panel explained how CSLI works: A traditional cellphone communicates with cell sites whenever it sends or receives a call or text, while a smartphone might communicate with them more often due to functions like email. The phone typically connects to the nearest cell site because that site offers the strongest signal. Records of the sites to which a phone has connected therefore show the approximate whereabouts of the device—and its user—at precise moments in time. (Listeners to Serial will forgive the recap.)

Searching for a Standard

The government secured the location records through the Stored Communications Act (SCA). The SCA requires that the government get either a warrant or court order for a service provider’s subscriber account records.

Warrants demand probable cause, but SCA court orders can rest on what’s essentially reasonable suspicion, a lower standard. (The SCA allows for orders based on “reasonable grounds to believe” that records are “relevant and material” to an investigation.)

Despite its conclusion that warrants rather than court orders are necessary for CSLI disclosure, the Fourth Circuit panel actually upheld the search. The judges found that the good faith exception to the exclusionary rule applied because the government acted according to what were then established procedures. But at least in the Fourth Circuit, the law is now clear, meaning that officers and prosecutors won’t have this “out” the next time they try to grab CSLI.

Conflict in the Courts

Despite the ruling, the law on cell location data is anything but uniform. Some state courts, including the supreme courts of Massachusetts and New Jersey, have agreed that inspection of cellphone location information requires a warrant. (Com. v. Augustine, 467 Mass. 230 (2014), State v. Earls, 214 N.J. 564 (2013).)

On the other hand, a Fifth Circuit panel ruled in 2013 that the government doesn’t need a warrant to acquire historical CSLI. And the Eleventh Circuit agreed earlier this year. These courts have theorized that people voluntarily convey their location by using their cellphones. (In re U.S. for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013), United States v. Davis, 785 F.3d 498 (11th Cir. 2015).)

So, do the police need a warrant to see what your phone says about where you’ve been? That depends in significant part on where you’ve been.

SOME IMPORTANT TAX PROVISIONS OF NEW HIGHWAY ACT

~Basis overstatement will hereafter be deemed the equivalent of omission of income for purposes of the 6 year statute of limitations. Thus, the Supreme Court decision to the contrary in Home Concrete & Supply LLC has now been superseded.

~Changes in filing deadlines for certain entities (effective for tax years beginning after December 31, 2015):

# (Calendar year) partnership filing date changed to March 15
# (Calendar year) “C” corporation filing date changed to April 15

IRS SIMPLIFIES SECTION 83 ELECTION PROCEDURES

In a recent private letter ruling, IRS acknowledged that the failure to attach a copy of a Section 83(b) election to the tax return didn’t negate the election as long as the election was, in fact, filed with IRS within 30 days of the date of transfer, which has long been the rule.

And in recently proposed regulations, IRS has further formalized this new stance in proposing elimination of the requirement that taxpayers attach a copy of the election to the tax return. For one thing, IRS believes this bit of simplification (applicable to property transfers on or after January 1, 2016) will promote the e-filing of tax returns.

Dear Right-Wing Media: Stop Panicking, New Citizens Could Always Claim Conscientious Objector Status

saluteTo see the recent spate of articles, you’d think President Obama himself had just waved his hand and told all green card holders who are becoming naturalized U.S. citizens that they could skip that pesky part of the Oath of Allegiance where they promise to bear arms on behalf of the United States. Here are some of the recent headlines:

One has to wonder whether the pundits who write this nonsense get some sort of satisfaction from stirring up panic, because what they’re saying is simply not true. And I don’t mean “not true” in the sense that the issue is more nuanced than it first appears, or that with a little sympathy toward immigrants you’d see it another way, I mean NOT TRUE. At all.

I’ll try to keep this simple. Successful applicants for U.S. citizenship must take an Oath of Allegiance to the United States. That oath includes a statement that they’ll willingly bear arms on behalf of the U.S. if asked. For as many years as I’ve been practicing law, they’ve been allowed to request an exemption from the “bear arms” portion of the oath based on religious, ethical, or moral principles.

Notice I said request — USCIS could always deny it if the agency didn’t believe that the person really held said beliefs.

And the change? There really isn’t any. USCIS simply clarified, in a Policy Alert, that no, you don’t need to be a member of a particular religion to make this request, and no, you don’t have to prove said membership. No big deal — unless you’re someone who was worried that you’d be blocked from U.S. citizenship because your honest beliefs forbid you from taking up arms against your fellow man. In that case, you might be relieved to know that USCIS will give your request to take a modified oath serious consideration, though it might still deny it. (And you should also know that you cannot opt out of the portion of the oath in which you promise to perform noncombatant services on behalf of the U.S. if asked.)

I have no illusions that this humble blog will stop the tide of panic. Maybe Snopes will have better luck — the misunderstandings are so over the top that even this myth-debunking website felt the need to weigh in!

One last observation: The first article linked to above ended with the following statement: “It should be noted the Islamic terrorist Mohammad Youssuf Abdulazeez, who killed four Marines and a Navy sailor in Chattanooga last week, was a naturalized citizen.”

It should be noted why, exactly? Is that little factoid supposed to make us more outraged that some new citizens won’t be joining our military and handed deadly weapons? With that level of suspicion about naturalized citizens, I would think saying yes to the ones who want to stay home and sit out any war would be a fine option.

New Fundraising Method? Check Collection Box for Rare Coins!

coinsCollecting a few pennies at a time doesn’t sound like the most effective way to raise money for charity.

But if you leave that coin donation box out long enough, the money will add up — and better yet, you might encounter some luck of the sort reportedly experienced by the Royal Berkshire Hospital recently.

A seemingly humble 2p piece in its coin donation box turned out to be a rarity (printed in silver rather than bronze, oops). A sharp-eyed volunteer noticed the oddity, and called an auction house. The coin ultimately sold for £802.03, a whopping 40,101 times its face value.

So there you have it; your fundraising lesson for the day. But actually, there are a few additional lessons to be learned from this story.

One is the value of volunteers, who bring fresh energy and knowledge into an organization. (Would a tired staffer emptying the box have noticed that a single coin in the pile was the wrong color?) See Nolo’s articles on “Volunteers and Your Nonprofit” for guidance on utilizing this resource.

Another is the value of publicity. I’ll bet the media outlets that reported on this weren’t tracking the auction house, but got word from the charity itself. And now you, I, and everyone reading the press coverage have heard of the Royal Berkshire Hospital. So if something similarly fun or interesting happens at your nonprofit, don’t be shy — call the press!