That seems like precisely the information that should require a warrant, no?
https://en.wikipedia.org/wiki/Third-party_doctrine
Everyone storing data in "the cloud" is also at risk, the cloud provider can voluntarily hand data to law enforcement at their discretion. IIRC this also comes into play when your email messages are hosted on a 3rd party server that you do not own.
Under the ECPA they need to obtain a warrant for email and other cloud storage services, unless it's older than 180 days... then it's considered "abandoned".
There's been some effort to remove the 180 day limit.. some states have laws that protect older data + the 6th circuit already extended it past 180 days in US v Warshark.. but we need a national law like the Email Privacy Act that the House passed last year (but the senate didn't):
https://www.natlawreview.com/article/house-judiciary-committ...
This alows them to bot have those emails available to government spying as a writ.
One company who does this is lockheed.
Basically if you are a defense contractor - you do this.
Large companies, especially public ones and those doing business with the government, follow different sets of rules specifying retention times. For anything that has an impact on accounting, the minimum is usually 5 years. If you’re trying to get an FAA approval for anything that flies, it’s much longer.
Bonus: the 180 days mentioned above is for third party service providers as the cutoff of considering information to be “in transit”. Is has absolutely no bearing on in-house systems which have first-party protection.
Lockheed is shady as fuck. I have stories. But will not share them here..
ECPA is about unauthorised access (think tapping a phone line, but for the digital age) to electronic communications/cloud data. The Third-Party Doctrine is explicitly about the Government requesting these records - thus they would do not fall under "unauthorised access" in the sense used under the ECPA. Basically they cover two completely different situations.
The ECPA isn't just about unauthorized access. It also has provisions, such as the Stored Communications Act (a subset of the ECPA), that apply to the 3P situation you described where "Government request[s] these records." For example, 18 U.S.C. 2703(a) (titled "Required disclosure of customer communications or records") reads "[a] governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in ..."
In response to the original comment, the State's position that "it could warrantlessly get cell phone location data to find anyone, anytime, at any place as long as it was less than six hours old" was in part based on a previous Supreme Court case, Carpenter v. United States. Carpenter concerned federal prosecutors' attempts to get CSLI information using a court order pursuant to the Stored Communications Act -- 18 U.S.C. 2703(d).
As far as the Massachusetts Constitution, two of the judges here held that this type of location data is protected. The majority focused on the government action (it's not third party if the police actively cause a third party to do something), but the broader question might get revisited in a later case.
Since this info is shared with a third party (the phone company) it’s no longer considered private.
Of course that’s problematic but that’s the basic concept.
United States v. Graham held, with significant controversy, that obtaining historical location data from a phone company is shared with a third party and so lacks 4th Amendment protection.
But the Massachusetts court finding for this case centered on the ping; law enforcement can't ask third parties to conduct specific searches in its place, which was effectively what they did here. (Similarly, there's a standing case about the FBI use of paid GeekSquad informants which hinges on whether they were being paid for discoveries in the course of work, or implicitly hired to conduct searches.)
That said, two judges here held that even if the Fourth Amendment doesn't protect location data, the Massachusetts constitution does. So once the targeted-request program ends, we may see this question revisited.
There's precedent allowing use of such data without a warrant where there is an immediate need, but probably no clear boundary in precedent: taking a broad interpretation of authority which clearly exists in some form until courts have drawn a clear demarcation is not at all unusual.
> That seems like precisely the information that should require a warrant, no?
No, I think the set of legitimate warrantless access to such data (the exigent circumstances the court refers to) would be a subset of the set of less-than-six-hour-old data, so the limitation the State appl d is in the right direction though still very much too broad; if it only allowed historical but not current data, then it would be precisely the information that should require a warrant rather than a far-too-broad line around legitimate warrantless access.
It is a flaw in our current system. It is most obvious at the federal level, where the President and many Republicans routinely break laws in obvious manners, while the courts fight it out for years.
[1] Some of our laws are based on what is 'normal'. So after some years of a practice taking place clearly illegally, it can become to be seen as 'normal' by society and therefore legalized de facto. For example "cruel and unusual punishment" does not outlaw the death penalty because it already exists and is sufficiently common to not count as unusual.
Can you link to some citations regarding this? If one of our political parties and our elected officials are brazenly breaking the law I'd sure like to know about it!
From a story about warrantless access to location data to... this comment.
First, warrantless access to XYZ is an issue with the criminal justice system, and I know you'll find people of all different political persuasions acting to keep that system in place and make prosecution as efficient as possible. It benefits them materially.
Second, the "Federal" government is overwhelmingly staffed by Democrats. In case you did not know, the Federal government is not just members of Congress. It includes the many departments of the Executive branch, and Trump can't just fire everyone and only hire Republicans. Scroll down here and look at what parties government workers donate to: https://www.fedsmith.com/2016/12/21/tallying-political-donat...
What level of involvement do you think those people have? Do you think the President or all of the Republican Senators are doing their jobs for them? What would it take to convince you that a Federal government is gonna do Federal government shit regardless of whether a D or R is in office?