Where's Waldo? Nevermind, we found him.

Every time you leave your house, you check your pockets to make sure you have the essentials: wallet, keys, and government tracking device, right?  Wait, what was that last one again?  Oh, your cell phone?  Yes, it’s extraordinarily useful in sending tweets to Justin Bieber, posting pictures of your meals on instagram, and stalking exes on facebook, but the U.S. Court of Appeals for the Fifth Circuit recently identified a new use: government tracking.

 

             

Police in Texas asked a federal magistrate to force a cell phone company to provide the antenna tower and sector for certain cell phone users who were being investigated.  In layman’s terms—the police wanted the location of the cell phone users.  The federal magistrate decided that the police needed a warrant to get such information.  On appeal, a federal district court judge agreed—if the police wanted the location of the users based on the cell phone company’s records, they needed a warrant supported by probable cause.

On appeal, the U.S. Court of Appeals for the Fifth Circuit, in a 2-1 decision, ruled that police do not need a warrant to obtain the location of cell phone users from their cell provider’s records.  The majority held that whenever a cell phone user broadcast information (e.g. sent a text message, made a phone call, or accessed the internet) to a third party (after all—we don’t own our own cell towers), that user lost his expectation of privacy.  In other words—if you want to keep your location private—don’t use a cell phone.

The practical response by most people to this decision will be—“eh, why do I care if the government knows where I am, or where I’ve been?”  For those charged with a crime, however, that information can be very damning.  Evidence of a user’s location can be used to establish an incriminating pattern (e.g. trips to/from a buyer or seller of narcotics), defeat an alibi, or establish proximity of the accused to the scene of the crime.

So next time you’re sending a text message, making a phone call, or updating your facebook status, to tell your friends where you are, just remember—the government already knows.

Facebook needs a "probable cause" button.

Your Facebook privacy settings don't block access by the U.S. Government. Any one of your Facebook "friends" can be pressured into exposing your messages, wall posts and photos. Once you give "friends" permission, they are free to give anyone else permission to gaze into your life through their account. Look what's happening to Mr. Meregildo, in New York.

Uncle Sam could not get direct access to Mr. Meregildo's Facebook account, and it lacked the probable cause to obtain a search warrant.  So, the Government made a real "friend" of one of Mr. Meregildo's Facebook "friends. Uncle Sam's new buddy gave access to Defendant's page. This allowed the government to circumvent privacy settings of the Defendant.The U.S. Government then applied for a search warrant seeking direct access to Mr. Meregildo's Facebook account.

Mr. Meregildo's lawyer attacked the Government's method of developing probable cause, and moved to supress.Judge William H. Pauley, III, a President Clinton appointee, gave the Defendant's rights a good 'ole Tanya Harding whack across the knees in his August 10, 2012 opinion, captioned as United States v. Meregildo.

Sharing with "friends" gave the Government access needed to see "...posted messages regarding prior acts of violence, threatened new violence to rival gang members..."  It was access to the Defendant's Facebook page that "formed the core of the Government's evidence of probable cause supporting it's application for a search warrant."

Judge Pauley held that when privacy settings restrict postings and photos to "friends, " the Government may access your profile through access of any cooperating witness that is on your "friends" list.  This does not violate the Fourth Amendment to the U.S. Constitution. It's like a phone call, where one of the parties agrees to let the Government record the call. So think of all your Facebook "friends" as if they are wearing a wire!

According to this judge, we have no reasonable expectation that our restricted profile information will be kept private, in turn, by our "friends."  Our "friends" are free to cooperate with the Government, and to disclose information necessary to convict us of crimes.

Instead of a "poke" button, perhaps Facebook could add a "probable cause" button for our "friends" to push when cooperating with the authorities to send you to prison.