Wednesday, May 13, 2015

The Courts, The Constitution, and Phone Metadata

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Why is SCA 18 U.S.C. 2703 (d) unconstitutional?
The Unconstitutionality of SCA 18 U.S.C. 2703 (d)

Notwithstanding the fact that there is much good that can come from the legitimate (warrant based on probable cause) acquisition of Cell Site Location Information (stored/historical or real time), as of now, the location of wherever you carry your cell phone is recorded by your cellular service providers.

In other words for the last several years every place you’ve visited or traveled while your cell phone was in your possession, on or off doesn’t matter, has been recorded and saved and can be handed over to an investigative body who has obtained a court order under SCA 18 U.S.C. 2703 (d). A court order is issued under a less stringent standard , a offer of “specific and articulable facts”, instead of the highest level of 4th amendment constitutional protection, a warrant based on probable cause see, (http://www.volokh.com/2011/01/11/2703d-orders-in-the-news-no-really).

One may postulate, oh! I’ll just get around that by carrying burners (disposable phones). Yeah, sure, well guess what, we pass through hundreds of cell towers every day. If you have 2, 3, or 4 phones in your car every several seconds they send out signals to cell phone towers and this is how your location is mapped. Your 2,3, or 4 phones are the only phones that would have traveled that same mapped path so by them having your regular phone number they can easily see what phones followed the same cell tower to cell tower path and thus get your burner numbers as well…Wow…Now I understand why crime is down.

One may rationalize by saying, “they can’t pinpoint my exact location”. That may have been the case as of yesteryear but in today’s ever changing world, because technology increases with our every breath they now have what’s known as a femto cell, (see,http://www.techrepublic.com/blog/data-center/pros-and-cons-of-using-femtocells/) which can pinpoint a cellular phone location up to within a ten meters (i.e. to a particular floor, apt, address, etc.)

Another thing worthy of mentioning is the fact that local, state and federal police throughout the U.S. has purchased the ultra expensive stingray (cell tower simulator) device …see, (http://www.ibtimes.com/police-departments-18-states-use-stingray-tech-track-cell-phones-they-wont-t alk-about-it-1694552 ). This device tricks a cell phone into thinking they are the cell tower and thus all information that would have been relayed to a cell tower is now relayed to the stingray device. No doubt this information has been used, in some form or fashion, to help obtain a court order under SCA 18 U.S.C. 2703 (d).

Once a court order is obtained now law enforcement can get real time and stored/historical CSLI on a person’s regular phone and any additional phones that person may have and thus build a case based on this violation. Under the more stringent standard of a warrant based on probable cause a warrant would have never been issued under these circumstances.

If you’ve been cheating on your spouse at a hotel that info is saved, all mapped out, and waiting.If you commit a crime at a particular time and you have your cell phone on you…busted.

If you did a drug deal and had your regular phone on you and a year later the guy gets caught and tells…guess what? You was there…busted.

If you live an alternative lifestyle (undercover) and you visit those types of establishments ….guess what…there’s a record.

If you just want to be alone, guess what…no can do, they have a record of that too.

If there is no semblance as to who is targeted (white, black, chinese, asian, etc.) this would most certainly “shock the judicial conscience” as well as help to upend much of the progress that has been achieved in the social arena.

We the People deserve to know the ratio of nationalities targeted via CSLI/HCSLI, people and crime types. Cellular phones and their residual matter (Cell Site Location Information [CSLI], and Historical Cell Site Location Information [HCSLI] ) have the potential to be a great benefit to humanity or a draconian tool to be used for the same purposes as an implanted chip.

This is the case because a cellular phone offers the same, if not more, benefits or ill effects (depending on the person’s perception) as an implanted chip (i.e. location tracking, allows a person to buy and sell, etc..(see, http://www.thenewamerican.com/tech/computers/item/17688-rfid-implants-the-benefits-vs-the-dangers). Can we really name one pertinent thing that an implanted chip can do that a cellular phone cannot do?

This is the way to defeat this violation… (keep in mind, under this approach our current third party doctrine need not be amended on this issue because since cellular service providers are “agents”, because they collect this data at the behest/instigation of the government ( FCC rule E911), the third party doctrine is inapplicable and basically can remain intack.

In order to prevail on the issue of historical CSLI and mandate its requiring of a warrant to obtain, one must first attack the constitutionality of SCA 18 U.S.C. 2703 (d) which allows the obtaining of historical/real-time CSLI with a court order.

In order to prove this unconstitutionality we must first understand that the “[The Fourth Amendment] is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.”…See United States v. Jacobsen (1984) 466 U.S. 109, 113 .

Secondly, we must significantly show that the private citizen/entity (cellular service provider) was acting at the behest or instigation of the government, or one of many conducts as outlined in the following court cases: Skinner v. Railway Labor Exec. Assn. (1989) 489 U.S. 602, 614. ALSO SEE Coolidge v. New Hampshire (1971) 403 U.S. 443, 487 [“The test [is whether the citizen] must be regarded as having acted as an instrument or agent of the state”] ; Lustig v. United States (1949) 338 U.S. 74, 78 [“[A] search is a search by a federal official if he had a hand in it”] ; People v. De Juan (1985) 171 Cal.App.3d 1110, 1120 [search at officers’ “behest or instigation”] ; People v. Fierro (1965) 236 Cal.App.2d 344, 348 [“In brief, the question is one of the extent of government involvement in an invasion conducted by the private citizen.”] ; People v. McKinnon (1972) 7 Cal.3d 899, 912 [Fourth Amendment applies if officers “hired and paid” the person to conduct warrantless searches,” or if he were to “open and search a specific package at [their] express direction or request”]; People v. Bennett (1998) 17 Cal.4th 373, 384, fn.3 [civilian was acting at an officer’s request]; Dyas v. Superior Court (1974) 11 Cal.3d 628, 633, fn.2 [exclusionary rule will be applied if officers “requested the illegal search”] ; People v. North (1981) 29 Cal.3d 509, 514 [search “performed in conjunction with, or cloaked in the authority of the state”] ; U.S. v. Bruce (6th Cir. 2005) 396 F.3d 697, 705 [“[T]wo elements must be shown in order to treat ostensibly private action as a state-sponsored search: (1) the police must have instigated, encouraged, or participated in the search; and (2) the private individual must have engaged in the search with the intent of assisting the police.” Citation]; People v. Warren (1990) 219 Cal.App.3d 619, 622 [“The relevant factors used in determining whether the governmental participation is significant, or de minimis, are (1) the government’s knowledge and acquiescence, and (2) the intent of the party performing the search.”]; U.S. v. Attson (9th Cir. 1990) 900 F.2d 1427, 1433 [the citizen “must have acted with the intent to assist the government in its investigatory or administrative purposes and not for an independent purpose.”]; U.S. v. Attson (9th Cir. 1990) 900 F.2d 1427, 1433 [the citizen “must have acted with the intent to assist the government in its investigatory or administrative purposes and not for an independent purpose.”] ; and, U.S. v. Shahid (7th Cir. 1997) 117 F.3d 322, 325 [a “critical” factor is “whether the private party’s purpose in conducting the search was to assist law enforcement agents or to further [his] own ends.”]

SCA 18 U.S.C. 2703(d) is unconstitutional because the U.S. Supreme Court decisions of Lustig, Byars, and countless succeeding federal and state cases that says, ‘anytime the government (police, federal agent, etc) significantly uses a private citizen/entity (cellular service provider) as its agent (state actor) in acquiring evidence against someone this invokes the “full panoply of constitutional protections” (i.e. …a warrant based on probable cause is needed), see. Owen v. State of Indiana, 490 NE.2d. 1130, at 1136 (1986) in reiterating N.Y. v. Ray, 65 N.Y.2d 282, at 286, “Private conduct, however may become so pervaded by governmental involvement that it loses its character as such and invokes the full panoply of constitutional protections”., also; (People v Jones, 47 N.Y.2d 528; People v Esposito, 37 N.Y.2d 156, 160;People v Adler, 50 N.Y.2d 730, 737; Corngold v United States, 367 F.2d 1.) Relevant indicia of State involvement, which may transform private conduct into State action, include: a clear connection between the police and the private investigation (People v Horman, 22 N.Y.2d 378, 380); completion of the private act at the instigation of the police (People v Esposito, supra); close supervision of the private conduct by the police (People v Esposito, supra); and a private act undertaken on behalf of the police to further a police objective (People v Adler,supra).

This statute also fails both the “public function test” as well as the “lugar test” The “public function test” states that a private entity will be considered a state actor if the private entity assumes or is delegated a power “ traditionally exclusively reserved to the State”, see Jackson v Metropolitan Edison Co., 419 U.S. 345, at 352 (1964). Collecting evidence for criminal trials has always been traditionally the job of the State/Government.

When we apply the “two part test” that the “Lugar Test” outlines to this issue we see that it too denotes that cellular service providers are state/federal actors and/or agents respectively.

The first part of the Lugar Test states that the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible. The deprivation occurs in the relinquishing of a person’s CSLI/HCSLI by cellular service providers at the behest of the government under the rule of conduct as outlined in rule SCA 18 U.S.C. 2703 (d), and as precipitated by FCC rule E911.

These two rules cannot coexist on the same platform without conflict. The very nature of FCC rule E911 delegates all cellular service providers as actors/agents of the State, as well as, provides more than sufficient evidence of agency. The only way FCC rule E911 can exist is if all participants abide by the most strictest adherence to 4th amendment protocols, i.e., a warrant based on probable cause; Therefore, SCA 18 U.S.C. 2703 (d) is unconstitutional.

The second part of the Lugar Test states, the party charged with the deprivation must be a person (entity) who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is chargeable to the State.The party charged with the deprivation are the cellular service providers because in essence and in fact they are “agents/actors.

What had officiated and cemented all cellular service providers statuses as agents/actors for the government is the nexus that was created in or around 2000 when the government’s FCC issued a set of rules, called the Enhanced 911 rules (E911 rules), that mandated all wireless carriers to collect precise location information in the near future in order to improve the delivery of emergency services…See, The Mobile Wireless Web, Data, Services and Beyond: Emerging Technologies and Consumer Issues, pg. 9… published by the Federal Trade Commission, by Robert Ptofsky February,2002,..see, (https://drive.google.com/file/d/0B1q7pqeJ0PWGbmJqNVVkVnJSN0h4cHRSQ2hyWnZienR5YlJz/view?usp=sharing) .

When you view this staff report you will get a unique pre-cell era view of this issue, uncortupted by the passage of time, from the mindset of a diverse consortium of individuals who we at the forefront of pioneering cellular technology, rules, and safeguards.

For instance, at the workshop which the aforementioned “report” pertains to, there was consensus as to the uncertainty of who CSLI (historical and real time) belongs to.

We the People deserves to know who designated this newly developed, highly sensitive, and clearly outside the traditional boundaries of normal protocol who designated a citizens CSLI the property of cellular providers when all cellular providers were required to collect and retain this information at the behest of the government (see Rule E911).

We the People deserves to know who designated this newly developed, highly sensitive, and clearly outside the traditional boundaries of past protocols, we need to know who designated a citizens CSLI the property of cellular providers when said ownership was clearly uncertain back in 2000.

We the People deserve to know who, how, and when the original intent of the government to collect this newly developed sensitive information that clearly trumps all other technological inventions of our time for E911 purposes transformed into criminal investigations without using the strictest safeguards?

We the People deserves to know how the keenest legal minds in the United States government allowed legislators to enact SCA 18 U.S.C. 2703 (d) unchecked, knowing full well cellular providers were government ‘agents’ for fourth amendment purposes and thus any information acquired by them at the behest of the government could only be turned over by abiding by the strictest of constitutional protocol with respect to a person’s CSLI and HSCLI? There needs to be accountability.

Notwithstanding the meritorious work and energy sacrificed by our hardworking legislators… We the People deserve to know if any other legislators who helped to vote SCA 18 U.S.C. 2703 (d) into being profited from the 5 to 9 billion dollar a year average the Harris Corporation (HRS) made over the years since this unconstitutional enactment, see . The Harris Corporation is the company that makes and sells the devices that capture CSLI and they have been selling these devices to police departments throughout the U.S. .

We the people deserve to know if any of these legislators had investments in Harris Corporation, or its subsidararies , or in any one of the investment companies that hold Harris Corp stock and thus profited from the more than $100 billion dollars made to investors as a direct result of their unconstitutional enactment.

The Wise and Honorable Justices have said in Union Pac. R.Co.V.Botsford. 141 U.S. 250, at 251, “No right is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law”….and,

The Well-balanced Justices of the court has said in Terry v Ohio 392 U.S. 1, at 15 “Under our decision, courts still retain their traditional responsibility to guard against police conduct which is overbearing or harassing, or which trenches upon personal security without the objective evidentiary justification which the Constitution requires. When such conduct is identified, it must be condemned by the judiciary and its fruits must be excluded from evidence in criminal trials”…most notably,

The Honorable and Well respected Justice Frankfurter has said in Lustig v United States, 338 U.S. 74, at 78-79, “[A] search is a search by a federal agent if he had a hand in it***the decisive factor in determining the applicability of the Byars case is the actuality of a share by a federal official in the total enterprise of securing and selecting evidence by other than sanction means. It is immaterial whether a federal agent originated the idea or joined in it while the search was in progress. So long as he was in it before the object of the search was completely accomplished, he must be deemed to have participated in it”….also;

The Prestigious Justices of the court have said in Byars v United States, 273 U.S. 28, at 33-34, “The Fourth Amendment was adopted in view of long misuse of power in the matter of searches and seizures both in England and in the colonies; and the assurance against any revival of it, so carefully embodied in the fundamental law, is not to be impaired by judicial sanction of equivocal methods, which, regarded superficially, may be seen to challenge the illegality but which, in reality, strike at the very substance of the constitutional right.”…in addition,

The Honorable Justice Bradley (S.D.N.Y.) Boyd v. United States, 116 U.S. 616, at 639 has said more than 85 years ago, in delivering the opinion of the court, “ It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis. We have no doubt that the legislative body is actuated by the same motives; but the vast accumulation of public business brought before it sometimes prevents it, on a first presentation, from noticing objections which become developed by time and the practical application of the objectionable law.”

Lastly, the initial violative action in our judicial system with regards to this issue occurred with the application of SCA 18 U.S.C. 2703 (d). A poisonous rule or statute is far, far more damaging and destructive than a single piece of poisonous fruit (evidence gained through illegal or unconstitutional means or methods) for it gives rise to baskets upon baskets of poisonous fruit that has already rotted the bellies of many of our citizens and which is poised poison our very nation. So to correct the problem we must attack the problem at its roots, i.e. the initial violation.

In closing, our judicial system is not perfect but is a system that can work if we meticulously safeguard all elements of our Constitution. When we sacrifice one mustard seed weight of our constitutional rights for a paltry gain, sinister intent, or for whatever reason the end result can only lead to chaos, nonconformity, and inconsistency in our courts decisions, judicial mindset, along with increased mayhem in society…as we see today with this issue, this, in addition to the countless snowballing detrimental effects from such violation(s)….

Still working on it…please add to it…

Thanks.

Posted by: KM | May 24, 2015 7:55:34 PM

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