Author Topic: cell phone "records" do not need a warrant  (Read 13235 times)

vaskidmark

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cell phone "records" do not need a warrant
« on: September 09, 2010, 10:49:29 AM »
I've been involved in a discussion of the warrantless use of GPS devices by the cops.  It seems there are conflicting views on whether or not they need a warrant based both on in which Federal Appeals Circuit the case is, ans whether or not the GPS device is placed inside the body or attached to the vehicle battery or not.

Then I stumbled on a case out of the 3rd Circuit that scared the bejesus out of me.

The 3rd Circuit weighs in http://www.eff.org/files/3d%20Circui...ll%20Site).pdf with a decision that the cops can without a warrant get records from your cell phone provider about where your cell phone was. They decide that a cell phone is not a "tracking device" although there is not a cell phone currently on the market that is not GPS-enabled - thanks to federal law!

The decision is very technical. The laws cited are for the most part amendments to previous laws, so trying to understand them may require literal cut&paste jobs to see what happened when and to what/whom.

The bottom line is that the 3rd Circuit says the cops can see even so far as to which "face" of the specific cell tower handled your call, and from which face the hand-off to the receiving phone was made.

Pretty much the only way to disable the GPS portion of your cell phone is to remove the battery. What's at least as scary is that the cops merely have to say in their petition for a court order to make the phone company release records is that the information is related to an ongoing investigation of (some specified type of) criminal activity - no RAS or better needed.

This one scares me, as just about everybody has a cell phone. And folks who have an employer-issued cell phone generally also have a personal one, so as not to get caught up in boundary issues between work and private calls and if the boss can see who you are calling on your own time.

And I'm pretty sure that most of the folks I associate with in cyberspace as well as in meatspace are on at least one government watch list.  (If you are only on one list I'm dropping you as an associate/aquaintance/ friend - you do not rise to my minimal standards.)  So when somebody gets in trouble the cops are going to be tracking their cell phone, and then probably finding out which other cell phones were also in the vicinity. [tinfoil]

Some folks were my go-to alibi.  Now I'm not so sure I want them vouching for me.

Looks like I'm giving up my E-Z Pass, my cell phone, my home phone & internet, and sweeping my vehicle for bugs before I head down to the public library to surf porn and log into APS through at least 7 layers of proxies - using a phony registration made with a connection in Darfur.

stay safe.
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Ben

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Re: cell phone "records" do not need a warrant
« Reply #1 on: September 09, 2010, 11:07:54 AM »
What's really scary about this is that so many cool and valuable services you can get on a phone require your GPS, so not that many people would even want to deactivate their phones. It's "the stick and the carrot" except people go for the carrot and then get hit in the back of the head with the stick. I'm no legal expert, but this seems very insidious.

Because so many people rely more and more on the GPS function for phone services, I can't help but wonder that at some point in the future, if someone did deactivate their phone for periods of time, if they would automatically fall into the "suspicious behavior" category.

"I'm a foolish old man that has been drawn into a wild goose chase by a harpy in trousers and a nincompoop."

AZRedhawk44

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Re: cell phone "records" do not need a warrant
« Reply #2 on: September 09, 2010, 11:14:23 AM »
I loves me a simple phone that doesn't have any of the tripe that modern phones have.

Unfortunately, even the simple phones now have all the back-end tripe, they just strip out the front-end stuff (mp3 players, web capability, etc).
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RevDisk

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Re: cell phone "records" do not need a warrant
« Reply #3 on: September 09, 2010, 11:24:26 AM »
Because so many people rely more and more on the GPS function for phone services, I can't help but wonder that at some point in the future, if someone did deactivate their phone for periods of time, if they would automatically fall into the "suspicious behavior" category.

Erm.  That's already being done.  Cloning your OWN cell phone.  There's a variety of reasons to do so.

Look up FreeRunner, an open source phone.
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Ned Hamford

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Re: cell phone "records" do not need a warrant
« Reply #4 on: September 09, 2010, 11:44:56 AM »
'They got information WITHOUT a warrant.'

Having used the grand-jury subpoena route for a few investigations I am less sympathetic to this view due to pragmatism.  

Think of the trees!  How many steps and documentation do you want to add to the system to permit LEOs to do their jobs?

A fairly casual glance at a few death penalty paper trails shows the complete breakdown of these types of pro-forma 'checks' and ones much more onerous.  To have any meaning there would have to be an explosion in the size of LE, DAs, and Judges.... and a near complete change in the culture of the organizations at each level.    

Like just about any system, the base concern needs be the human element.  Are good people at the helm?  If they are bad, [immoral, amoral, stupid, lazy, or some combination], and so are the folks around and up 3 levels, any check in place will simply be ignored.  

There are enough pragmatic checks already in place to present paper trails and warnings for anyone in a position to, remove/correct a bad apple, to notice them.  More will just gum up the works.

 :police:

For the greater issue of privacy in our ever expanding internet and connectivity age... I would like a tightening of privacy laws.  But I am much less concerned about LEO exploiting my personal information than marketers and identity thieves.
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BrokenPaw

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Re: cell phone "records" do not need a warrant
« Reply #5 on: September 09, 2010, 12:19:45 PM »
The bottom line is that the 3rd Circuit says the cops can see even so far as to which "face" of the specific cell tower handled your call, and from which face the hand-off to the receiving phone was made.

Minor technical nit:  Determining which of the sector antennae on the cell tower was handling your phone has nothing to do with GPS; this level of tracking can be done on any cell device, even if it has the GPS stuff physically pulled out of it, because (by definition) the cell network has to know which sector of which tower your phone is communicating with.

It's also not very good in terms of resolution; cell towers are often a few miles apart, especially in rural areas, and the best resolution they'll have on you is when you move from one cell to another, because at that point you're likely to be more or less equidistant to the two sectors involved in the hand-off (absent terrain issues like line-of-sight). In an urban environment, putting you in a particular place based on this is likely to be even more difficult, because of multipath signal issues and reflection.

It's likely that it'd be possible (if not necessarily feasible) to track an individual phone in real time, based upon tower TDOA or relative signal strength, but that level of tracking is likely to be done ad hoc, not all the time; it's too much info to store.  The cell companies are already tracking tower/sector handoffs for historical and maintenance purposes, and that's why this info is available; because that info is so low-res, it registers slightly lower on my tin-foil-o-meter. 

Not saying it's a good thing, just saying it's not like they can call up the phone company and find out the 10-foot radius you were in at 12:50PM on June 16th of 2009; best they'll be able to do is put you in a square mile or two, from historical records.

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RevDisk

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Re: cell phone "records" do not need a warrant
« Reply #6 on: September 09, 2010, 12:27:04 PM »
For the greater issue of privacy in our ever expanding internet and connectivity age... I would like a tightening of privacy laws.  But I am much less concerned about LEO exploiting my personal information than marketers and identity thieves.

Respectfully, you've admitted that you wish to pursue a career as a prosecutor.

The rest of us find this highly disturbing as it indeed makes it too easy for prosecutors and LE.  Their job is supposed to be very difficult.  The deck should be stacked against both, and it is not.  It is only getting worse.   Marketers are annoying, but they don't have the ability to use an essentially 'unlimited' amount of other people's resources.  It's not about who is at the helm and if they are untrustworthy.  If they work for the government, they are automatically untrustworthy as a collective group and must vigorously be kept in check.  

I don't think 99% of government employees, including prosecutors and LE, are untrustworthy as individuals.  Most of them are just normal people.  But it is their job to take from the citizenry.  Theoretically in return for services, protection, whatever.  Problem is, all government entities have numerous incentives to expand their power and budget and very few, if any, incentives to safeguard the citizenry, aside from personal ethics.  This imbalance shows in the "scope creep" of virtually every government entity over the last hundred years.  

To put it bluntly, the legal system has very desire in the world to curb stomp the people, and the only thing with any teeth that holds them in check is the Constitution.  Which they more and more blatantly ignore each year.  


"Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws."

I have no idea how judges remotely can take this as anything other than "If you want to search someone's stuff, get a ****ing warrant."

But let's be honest.  The legislatures, judiciary, law enforcement and prosecutors will continue to ignore this.  I'm just going to start laughing hysterically when the average person begins to say, "I'm listening to your rules...  why?"


It's likely that it'd be possible (if not necessarily feasible) to track an individual phone in real time, based upon tower TDOA or relative signal strength, but that level of tracking is likely to be done ad hoc, not all the time; it's too much info to store.  The cell companies are already tracking tower/sector handoffs for historical and maintenance purposes, and that's why this info is available; because that info is so low-res, it registers slightly lower on my tin-foil-o-meter. 

Not saying it's a good thing, just saying it's not like they can call up the phone company and find out the 10-foot radius you were in at 12:50PM on June 16th of 2009; best they'll be able to do is put you in a square mile or two, from historical records.

Just like to put out, the triangulation and storage mediums are both only getting better with time.  Even without compression, you could hold a lot of entries of "Phone #, Date/Time, Coords" on a single terabyte.  Care to imagine in 10 years how cheap that would be to store, especially if the government offered to pick up the tab?
« Last Edit: September 09, 2010, 12:31:36 PM by RevDisk »
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Ned Hamford

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Re: cell phone "records" do not need a warrant
« Reply #7 on: September 09, 2010, 12:41:45 PM »
"Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws."

I think the crux is that we have switched over from a paper and parchment age to one based on pure information.  Inter connectivity has also increased to a near unfathomable degree.

From my view, the police aren't 'taking your papers' they are asking someone that knows something about you questions.  Its all done by systems now, so rather than 'hey did you see this guy' its 'hey, seeing as you track his movements sporadically for billing purposes, mind telling me if he was in the area at X o'clock' and rather than a yes response, its just 'I'll send you a fax of the relevant info.'

There are folks on the board who believe any LE inquiry is inherently an overt threat and unconstitutional [see the famed photographer in the park discussion], but I think to have any sort of worth [and law & order is worthwhile] LEO need have the power of inquiry.  The ability to compel, which is what the warrant is, is another step up of government force and I don't think it should be the default step when dealing with non-suspects.  LEO ask, if the folks say no, then its warrant time with the check of the judicial. 

The biggest check is that of resource allocation.  That of course ties directly into the whole bad egg problem.  Oversight, management: good people.  They need be somewhere in the loop and its not something you can legislate.
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RevDisk

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Re: cell phone "records" do not need a warrant
« Reply #8 on: September 09, 2010, 12:59:08 PM »
I think the crux is that we have switched over from a paper and parchment age to one based on pure information.  Inter connectivity has also increased to a near unfathomable degree.

From my view, the police aren't 'taking your papers' they are asking someone that knows something about you questions.  Its all done by systems now, so rather than 'hey did you see this guy' its 'hey, seeing as you track his movements sporadically for billing purposes, mind telling me if he was in the area at X o'clock' and rather than a yes response, its just 'I'll send you a fax of the relevant info.'

There are folks on the board who believe any LE inquiry is inherently an overt threat and unconstitutional [see the famed photographer in the park discussion], but I think to have any sort of worth [and law & order is worthwhile] LEO need have the power of inquiry.  The ability to compel, which is what the warrant is, is another step up of government force and I don't think it should be the default step when dealing with non-suspects.  LEO ask, if the folks say no, then its warrant time with the check of the judicial. 

The biggest check is that of resource allocation.  That of course ties directly into the whole bad egg problem.  Oversight, management: good people.  They need be somewhere in the loop and its not something you can legislate.

Very disingenious.  But said movements are specifically not tracked for billing or fraud purposes, but CALEA (Pub. L. No. 103-414, 108 Stat. 4279, codified at 47 USC 1001-1010).  Your analogy is a bit flawed, because the carriers are required by law to retain this sort of information.  Compliance is not voluntary.  Ask Joseph P. Nacchio what happens when you don't play ball with illegal requests from the government, even beyond the legal requirements.

The proper analogy would be putting a gun to someone's head and ordering them to follow the person around to make regular reports.

The Fourth Amendment does not apply to just paper and parchment, just as the Second Amendment does not just apply to muskets.  And no, not every LE inquiry is inherently an overt threat and unconstitutional, but we appreciate the red herring and hyperbole.  Warrantless searching of private records, papers, et al are an overt threat and unconstitutional.  Why?  Because they violate the Fourth Amendment.  Ipso facto.
"Rev, your picture is in my King James Bible, where Paul talks about "inventors of evil."  Yes, I know you'll take that as a compliment."  - Fistful, possibly highest compliment I've ever received.

cassandra and sara's daddy

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Re: cell phone "records" do not need a warrant
« Reply #9 on: September 09, 2010, 01:04:01 PM »
i think this is being determined legit cause the info they get can be had by following them . ie there is no expectation of privacy when one is in public.
It is much more powerful to seek Truth for one's self.  Seeing and hearing that others seem to have found it can be a motivation.  With me, I was drawn because of much error and bad judgment on my part. Confronting one's own errors and bad judgment is a very life altering situation.  Confronting the errors and bad judgment of others is usually hypocrisy.


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Ned Hamford

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Re: cell phone "records" do not need a warrant
« Reply #10 on: September 09, 2010, 01:55:56 PM »
I've only worked on this sort of thing at the county level.  I can assure you, I may be wrong on some elements, but am not being disingenuous.

Is it also bad to read about CALEA and have the first thought be 'Cool!'?  :police: :angel:

I still am not adverse to the electronic common carrier information conveyance.  Still at work, cannot give the issue its proper amount of discussion attention.

With luck I'll be able to rejoin the fray tonight.   =)
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CNYCacher

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Re: cell phone "records" do not need a warrant
« Reply #11 on: September 09, 2010, 02:13:58 PM »
VA,
Did the courts specifically mention that it was OK for the cops to have unwarranted GPS data, or was the decision limited to the cell tower faces and handoffs?
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Regolith

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Re: cell phone "records" do not need a warrant
« Reply #12 on: September 09, 2010, 02:57:25 PM »
I think Joe Huffman has a pretty good test for whether or not a law or government power should be acceptable. 

Basically, the crux of the argument goes like this: If the government for some reason decided that they wanted to exterminate a class of innocent people, then would the law or power make it more difficult for someone to hide those people in their home and/or help them escape the country. 

If the answer is that it does make it more difficult, then it doesn't pass the smell test.

This one stinks.
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RoadKingLarry

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Re: cell phone "records" do not need a warrant
« Reply #13 on: September 09, 2010, 03:03:49 PM »
I don't know if it works better in more metro/urban areas but the gps locate on my iphone sucks in the area I consider my stomping grounds. Just last night it showed me to be in the middle of a local lake, 7 miles from my actual location on several occasions, and generally put me at least 1/2 a mile away from my correct position.
GPS and cell phone positioning isn't 100% accurate.
Might be interesting if my employer tried to use GPS tracking to nail me for being at a strip club that is 2 blocks away from the remote site I was actually working at.
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vaskidmark

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Re: cell phone "records" do not need a warrant
« Reply #14 on: September 09, 2010, 05:27:00 PM »
VA,
Did the courts specifically mention that it was OK for the cops to have unwarranted GPS data, or was the decision limited to the cell tower faces and handoffs?

They were after "historical cell tower data" and "cell site location information".

There may be a problem with the url I provided.  If so, try here:

http://www.eff.org/files/3d%20Circuit%20Opinion%20(Cell%20Site).pdf

stay safe.
If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege.

Hey you kids!! Get off my lawn!!!

They keep making this eternal vigilance thing harder and harder.  Protecting the 2nd amendment is like playing PACMAN - there's no pause button so you can go to the bathroom.

Headless Thompson Gunner

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Re: cell phone "records" do not need a warrant
« Reply #15 on: September 09, 2010, 05:39:49 PM »
From a practical standpoint, you're voluntarily providing certain information about yourself to third parties as a part of using their services.   It wouldn't take much common sense to realize that giving them that info means they have that info.

Do you trust them with that info?  If not, don't give it to 'em.

Tallpine

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Re: cell phone "records" do not need a warrant
« Reply #16 on: September 09, 2010, 06:31:28 PM »
From a practical standpoint, you're voluntarily providing certain information about yourself to third parties as a part of using their services.   It wouldn't take much common sense to realize that giving them that info means they have that info.

Do you trust them with that info?  If not, don't give it to 'em.


Well, if I ever decide to do something really illegal, I will ditch the cell phone first   ;)


But - you suppose that they will make it a crime to not have a cell phone  ???
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RevDisk

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Re: cell phone "records" do not need a warrant
« Reply #17 on: September 09, 2010, 06:48:36 PM »
From a practical standpoint, you're voluntarily providing certain information about yourself to third parties as a part of using their services.   It wouldn't take much common sense to realize that giving them that info means they have that info.

Do you trust them with that info?  If not, don't give it to 'em.

It's not volunteering when you're not allowed to opt out.  I'd love to be allowed to ditch GPS on my phone, or take active countermeasures to properly secure my usage.  They are virtually all illegal.

The phone companies are utilities.  Utilities are regulated differently than other companies.  They are granted privileges and immunities in exchange for responsibilities.  This is not "free market".  It is the exact opposite.  The entire non-visible electromagnetic spectrum is considered federal property.
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Headless Thompson Gunner

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Re: cell phone "records" do not need a warrant
« Reply #18 on: September 09, 2010, 07:29:34 PM »
As tallpine says, it's not yet a crime to not have a cell phone.  Or to power the thing fully off.

Usage of all these high tech devices comes with certain tradeoffs.  You makes your choices and takes your chances.

MicroBalrog

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Re: cell phone "records" do not need a warrant
« Reply #19 on: September 09, 2010, 08:03:49 PM »
As tallpine says, it's not yet a crime to not have a cell phone.  Or to power the thing fully off.

Usage of all these high tech devices comes with certain tradeoffs.  You makes your choices and takes your chances.

So, in your mind, it is consistent with free markets and privacy to force cellphone companies to track this data?
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Ned Hamford

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Re: cell phone "records" do not need a warrant
« Reply #20 on: September 09, 2010, 08:43:02 PM »
Its tough to be a public utility... being required to cooperate with the government.

Is rather nice having an enforced right to exist/monopoly tho. 
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Re: cell phone "records" do not need a warrant
« Reply #21 on: September 09, 2010, 09:17:42 PM »
From a practical standpoint, you're voluntarily providing certain information about yourself to third parties as a part of using their services.   It wouldn't take much common sense to realize that giving them that info means they have that info.

(really need to add a chin rub smiley)

Tangent moment! (And a serious question from a layman for the experts.) What is the legal difference here between voluntarily providing certain information to a utility provider in order to acquire their services and providing certain information to a doctor or lawyer for theirs'? Both the former and latter are considered voluntary actions, and you can go without either, but the latter are strongly protected by confidentiality laws. Why are these other things (utilities) that are considered voluntary but necessary parts of daily living treated so differently with regard to privacy and thus, in this case, considered exempt from 4th amendment protections?

Headless Thompson Gunner

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Re: cell phone "records" do not need a warrant
« Reply #22 on: September 09, 2010, 11:13:26 PM »
So, in your mind, it is consistent with free markets and privacy to force cellphone companies to track this data?
I said the practical thing to do is not give information over to people you don't trust with said information.

Read into that whatever you want.

 =)

It goes to a wider "no duh" situation we see repeating over and over again these days.  I recall a flap a bit ago about people being shocked and outraged at Google.  It turns out that when you ask Google to search for XYZ, Google becomes aware that you wanted to search for XYZ.
« Last Edit: September 09, 2010, 11:17:38 PM by Headless Thompson Gunner »

Hawkmoon

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Re: cell phone "records" do not need a warrant
« Reply #23 on: September 09, 2010, 11:48:43 PM »
For the greater issue of privacy in our ever expanding internet and connectivity age... I would like a tightening of privacy laws.  But I am much less concerned about LEO exploiting my personal information than marketers and identity thieves.

OMG!

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PTK

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Re: cell phone "records" do not need a warrant
« Reply #24 on: September 09, 2010, 11:56:18 PM »
(really need to add a chin rub smiley)

Tangent moment! (And a serious question from a layman for the experts.) What is the legal difference here between voluntarily providing certain information to a utility provider in order to acquire their services and providing certain information to a doctor or lawyer for theirs'? Both the former and latter are considered voluntary actions, and you can go without either, but the latter are strongly protected by confidentiality laws. Why are these other things (utilities) that are considered voluntary but necessary parts of daily living treated so differently with regard to privacy and thus, in this case, considered exempt from 4th amendment protections?

That is a very interesting way of looking at this issue, indeed! Anyone able to chime in? I'd love to hear insight into this. :)
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