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from the time-to-update-Carpenter dept

Never mind the Supreme Court. Never mind the case law finding warrantless phone tracking not quite constitutional. Never mind the self-imposed restrictions enacted by federal law enforcement agencies that place warrant requirements on real-time location tracking or the federal court decisions codifying these voluntary efforts.

Forget all of that. North Carolina is going to go its own way, following the mandate laid out by 70s coke icons Fleetwood Mac back in the day when getting a wiretap warrant meant someone actually had to do something beyond click ACCEPT on the law enforcement end user license agreement.

Police could track peoples cell phones in real time without a warrant under a bill that passed a state House committee Wednesday.

The bill is intended to help law enforcement more quickly to find kidnapping victims or runaway children.

Ah. THE CHILDREN. The non-voters who always seem to play a part in government expansions of power. Too young to voice their opinion but young enough to be exploited by adults for their own ends. You know, adults like this child exploitation expert:

This just gives the SBI another tool in the toolbox, said Republican Rep. Dudley Greene, the retired sheriff of McDowell County who is leading the push for the bill. But its not just a tool. Its an emergency tool, in very limited circumstances.

SBI is the State Bureau of Investigation. The ex-cop points to a single state agency, insinuating the law is limited to a single law enforcement entity when it actually isnt. And if you think this will be limited to only the most serious of crimes, well, then you probably helped Rep. Greene get elected. Mission creep is a thing. So is the natural tendency to abuse power that demands we, the governed, throw our voting wrenches into the government machinery every couple of years.

As both proponents and opponents note, the bill would not allow for warrantless wiretaps. What it would do is allow cops to track cell phones in real time, as well as obtain information about cell phones their targets interact with.

The latter is usually covered by pen register orders, which require less probable cause than warrants because the Third Party Doctrine leaves information voluntarily shared with third parties (read: telcos, cell service providers) unprotected. But location data is something else entirely, seeing as it gives the government the power these legislators want to codify: the ability to track anyone at any time in real time without a warrant.

The states court system already appears to be completely wrong about this:

As for cell phone tracking, North Carolinas appellate courts have already signed off on police getting peoples historical location data from phone companies without a warrant. But real-time warrantless tracking has not been included.

The Supreme Courts Carpenter decision explicitly forbade long-term tracking of individuals via historical cell site location data. And its reading of the Third Party Doctrine and the Fourth Amendment suggested real-time acquisition of location data might run afoul of the Fourth Amendment if this tracking went on for long enough.

According to this reporting, the states courts have decided the Carpenter decision doesnt apply to North Carolina law enforcement. And it has yet to arrive at a decision one way or the other about real-time tracking. An absence of contrary case law is a permission slip for law enforcement. Hell, even precedential decisions are rarely enough to deter law enforcement from engaging in rights violations. This law, which has sailed through the state House with almost zero opposition, encourages further abuses of tech that has yet to be fully addressed by courts covering this jurisdiction.

And the mission creep has already begun. The state rep quoted above claimed the law would help cops track down the worst of the worst criminals: those targeting children for nefarious means. But the revamped law which at least now requires law enforcement to make a warrant sales pitch to a judge within 48 hours of engaging in real-time location tracking has already been rewritten to ensure cops can use it whenever, wherever. Its not just pedophiles and kidnappers. Its the proverbial fast food thief (NOT A HYPOTHETICAL!) that can expect to be tracked in real time by cops with plenty of tech but no probable and no warrants.

It would allow a judge to find probable cause or reasonable suspicion that the suspect had committed any felony, or more minor crimes like a class 1 or A1 misdemeanor.

So, if passed intact, this law would allow cops to engage in real-time tracking of anyone suspected of almost any crime. Within 48 hours, they might need to make a probable cause showing in front of a judge. But even then, a judge could decide the pervasive surveillance is justified by assertions made after the fact by cops with a two-day head start. And if an arrest is effected before the clock runs out on the warrantless surveillance, theres no need to ask the court for a second opinion on this codified interpretation of the Third Party Doctrine. No harm (that will be recognized by a NC court), no foul.

Hopefully this bill will die the death it deserves. But if legislators and the states courts have deluded themselves into thinking location info wants to be free (of warrant requirements), it seems unlikely this proposal will get kicked to the curb by the governor. After all, the rest of the government thinks its a good idea. And they know whats best for everybody, even if the everybody theyre supposed to represent disagrees with them.

Filed Under: 4th amendment, cell site location info, north carolina, real time tracking, warrantless surveillance

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