Cellphone Privacy Takes a Hit in New York

MANHATTAN (CN) — With the Supreme Court bracing to decide whether the government needs a warrant to track cellphone location data, a New York federal judge behind one famous case involving mass surveillance answered that question in the negative.

The setback for privacy rights came in the case of Pedro Serrano, a New Yorker charged with hoarding 122 cartridges of ammunition and a bulletproof vest in his apartment in East Harlem.

The New York City Police Department discovered the stash during an October 2015 assault investigation that led to his home.

While awaiting state charges, Serrano also faced federal counts of illegally possessing ammunition as a felon, and he turned over his cellphone to U.S. Marshals.

Prosecutors sought an order for “all available historical cell site location” data tied to the cellphone towers associated with his phone beginning on Jan. 1, 2015, telling a magistrate they did not need a warrant for the information under the Stored Communications Act.

Lowering the bar from probable cause, prosecutors believe that legislation grants them a looser standard of providing “specific and articulable facts showing that there are reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation.”

Using this standard, a federal magistrate granted the government’s application directing Serrano’s service provider, Sprint, to produce the data, and Serrano sought to suppress those records at his trial.

U.S. District Judge William Pauley III denied his motion on Tuesday.

“It is almost as if cell phone users must relinquish some privacy interests — at least related to their location — as a prerequisite to using a device so embedded in everyday life,” Pauley wrote in an eight-page ruling. “But current Fourth Amendment jurisprudence affords no privacy interest in records created by a third party based on information voluntarily provided.”

That jurisprudence may soon change, now that the U.S. Supreme Court agreed to hear an appeal of a Fourth Circuit ruling in the case of Carpenter v. United States, which upheld the looser search and seizure standard.

Pauley endorsed the Fourth Circuit’s finding that cellphone users forfeit any reasonable expectation of privacy over location data they submit to third parties, simply by placing a call or receiving a text.

“While most people may not be aware of a cell tower’s esoteric functions, they nevertheless understand that by simply placing a call or receiving a text message, they are voluntarily disclosing something location based and are cognizant that such information will then be used by service providers for a variety of purposes,” Pauley wrote. “That something depends on whether a person is in a high density area with many cell towers, or a less populated area with few towers.”

Appointed by former President Bill Clinton, Pauley has a history of granting the government expansive surveillance powers in the name of public safety.

When former National Security Administration contractor Edward Snowden exposed the agency’s mass surveillance in the form of bulk cellphone metadata collection, the American Civil Liberties Union wound up in Pauley’s court in their efforts to enjoin the program.

Dismissing the ACLU’s lawsuit, Pauley justified the NSA’s surveillance on the need to counteract what he called the “bold jujitsu” of international terrorism, before being overturned in the Second Circuit.

Serrano’s attorney, Annalisa Miron from the Federal Defenders of New York, declined to comment on the ruling.

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