Steve Young report that the City of Sioux Falls is buying your phone data to track your movements around town to make your morning commute and trip to the Mall smoother:

Cellphone towers pinging phones as motorists travel in and around Sioux Falls are producing valuable information on the routes drivers take and how fast they get to their destinations.

It’s data transportation planners are increasingly using to help predict future road use and demands — how long to make access ramps on and off the interstates, for example, or how many turning lanes to include on those ramps [Steve Young, "Cell Phone Data Helps Map Future of Driving in City," that Sioux Falls paper, 2015.01.03].

Don't worry: Sioux Falls government officials never get a look at your personally identifying data. Heavens no: the private companies gathering your data strip your name and number from their data product before the sale, and they fuzz out your exact start and end points. But they don't have to:

[Sioux Falls ACLU director Heather] Smith said cellphone data that tracks locations could reveal if a person is a weekly church goer, a heavy gambler, a regular at a gym, or even who he or she appears to spend time with.

“It’s important to note that Congress has not legislated a standard for cellphone tracking. It’s largely dependent on state by state,” she said. “So generally speaking, the use of individual cellphone data could leave Sioux Falls residents with concerns about government access to their private information” [Young, 2015.01.03].

Mayor Huether could buy more detailed information about Scott Ehrisman's weekly travel habits. Mayor Huether could buy more detailed data, divide distance by time, mass-mail speeding tickets to every phone user who gets across town in under fifteen minutes. He could buy cell phone data to calculate road usage and send every driver a bill for road usage, essentially turning every street into a toll road. No federal legislation stops him. The Obama Administration says (and the courts so far agree) cell phone users have no reasonable expectation of locational privacy. The only things stopping Mayor Huether from such invasions of privacy are cost and good will:

At this point, Sioux Falls officials don’t have any plans to seek more such available data.

“Cost is always a factor in everything,” he said. “We’re seeing communities that are starting to go down that road and, from my standpoint, we’re watching what’s happening with them and how they’re using the data. It’s something that we would look at maybe going forward in the future” [Young, 2015.01.03].

Am I a conservative or a liberal if I say we need a harder check on government power here? Are our Congressional delegation and our state legislators insufficiently conservative or insufficiently liberal for not advocating a ban on the sale of our private phone data?

Or is privacy a dead concept, a small price to pay for being able to text "I'm on my way!" five minutes from home as corporations commoditize our life histories?

7 comments

On Monday, Pat Powers bemoaned the loss of his "texting freedom" as South Dakota inched toward common sense in enacting its ban on texting while driving.

Christopher Weber of Madison shows us what "texting freedom" really means:

One minute Christopher Weber was checking his smartphone, trying to navigate mobile banking options as he guided his pickup truck along Highway 270. The next, according to a criminal complaint, he was attempting CPR on a young mother who was out for a bicycle ride with her two young children when she was hit by Weber's truck in southwestern Minnesota.

...Andrea Boeve, 33, of Steen, was biking with her young daughters along the shoulder of Highway 270 on Monday morning when Weber's pickup drifted over the white line, the State Patrol said. The pickup struck and killed Boeve about a quarter-mile from her home. There were no skid marks, the complaint said.

Weber told the investigator, "yes it would be fair to say, it could be," when asked if he was looking at his phone and not the road, the complaint said ["Madison Man Charged in Death of Minnesota Cyclist," AP via Madison Daily Leader, 2014.07.02].

While you're at it, Pat, how about bleating about how the BAC and sobriety checkpoints infringe on your "drinking freedom."

38 comments

The bad news: the U.S. Supreme Court yesterday threw out evidence that helped convict a gang member and a drug dealer.

The good news: the Court ruled that police must get a search warrant to riffle through your cell phone. The enormous amount of personal data available through even the most basic cell phone deserves some protection from search and seizure, says the Court.

The bonus good news: The Court's ruling in Riley v. California recognizes that the absence of "precise guidance from the founding era" requires judges to think hard about new technology and new situations that Jefferson, Adams, et al. never conceived. Chief Justice John Roberts demonstrates that, in this case, our Justices are up to the task:

These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy [Chief Justice John Roberts, Riley v. California, 2014.06.25, p. 9].

The United States asserts that a search of all data stored on a cell phone is “materially indistinguishable” from searches of these sorts of physical items. Brief for United States in No. 13–212, p. 26. That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together. Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse...

Cell phones differ in both a quantitative and a qualita- tive sense from other objects that might be kept on an arrestee’s person. The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.

...Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read—nor would they have any reason to attempt to do so. And if they did, they would have to drag behind them a trunk of the sort held to require a search warrant in Chadwick, supra, rather than a container the size of the cigarette package in Robinson [Riley v. California, pp. 16–17].

In 1926, Learned Hand observed (in an opinion later quoted in Chimel) that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” United States v. Kirschenblatt, 16 F. 2d 202, 203 (CA2). If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is [Riley v. California, pp. 21–22].

The Court says case law offers two justifications for searching an arrestee's person and immediate surroundings: protecting the arresting officers and preventing destruction of evidence. Roberts writes that neither the phone nor the digital data it can access pose a threat to police. Arresting officers can secure any potential digital data mostly by handcuffing the suspect and setting the phone out of reach. The Court recognizes that digital data is still subject to encryption or remote wiping, but granting warrantless search authority does little to prevent those risks:

...the opportunities for officers to search a password-protected phone before data becomes encrypted are quite limited. Law enforcement officers are very unlikely to come upon such a phone in an unlocked state because most phones lock at the touch of a button or, as a default, after some very short period of inactivity. See, e.g., iPhone User Guide for iOS 7.1 Software 10 (2014) (default lock after about one minute). This may explain why the encryption argument was not made until the merits stage in this Court, and has never been considered by the Courts of Appeals.

Moreover, in situations in which an arrest might trigger a remote-wipe attempt or an officer discovers an unlocked phone, it is not clear that the ability to conduct a warrantless search would make much of a difference. The need to effect the arrest, secure the scene, and tend to other pressing matters means that law enforcement officers may well not be able to turn their attention to a cell phone right away. See Tr. of Oral Arg. in No. 13–132, at 50; see also Brief for United States as Amicus Curiae in No. 13–132, at 19. Cell phone data would be vulnerable to remote wiping from the time an individual anticipates arrest to the time any eventual search of the phone is completed, which might be at the station house hours later. Likewise, an officer who seizes a phone in an unlocked state might not be able to begin his search in the short time remaining before the phone locks and data becomes encrypted [Riley v. California, pp. 13–14].

The Court says that if cops are still worried about the remote chance of remote wiping, they have much simpler options than breaching the Fourth Amendment, like turning the phone off, removing the battery, or putting it in a Faraday bag (hey! I just learned something from the Supreme Court!).

As far removed from 1789 as our cell phones are, the Court still manages to put the question of digital data search and seizure into the Founders' context:

Our cases have recognized that the Fourth Amendment was the founding generation’s response to the reviled “general warrants” and “writs of assistance” of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity. Opposition to such searches was in fact one of the driving forces behind the Revolution itself. In 1761, the patriot James Otis delivered a speech in Boston denounc- ing the use of writs of assistance. A young John Adams was there, and he would later write that “[e]very man of a crowded audience appeared to me to go away, as I did, ready to take arms against writs of assistance.” 10 Works of John Adams 247–248 (C. Adams ed. 1856). According to Adams, Otis’s speech was “the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.” Id., at 248 (quoted in Boyd v. United States, 116 U. S. 616, 625 (1886)).

Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant [Riley v. California, pp. 27–28].

It's still pretty easy for post-September 11 authorities to get a warrant (15 minutes via iPad, says Chief Justice Roberts on page 26 of the ruling) or to declare the "exigent circumstances" that obviate a warrant. But Riley v. California is a small victory against the police state.

13 comments

The statewide texting-while-driving ban passed by our Legislature this year is inspiring Mitchell to repeal its local ordinance on electronically distracted driving. The new state law makes texting while driving a secondary offense, meaning troopers can't pull you over for thumb-screen absorption, but they can enhance your ticket if they stop you for something else and you don't hide your iPhone before they come to your window. Mitchell currently makes texting while driving a primary offense, meaning that's the only reason city cops need to stop you and take your contribution to city government.

Councilman Phil Carlson voted with the council majority last Monday in favor of first reading of the repeal. Carlson prefers uniformity in traffic laws. He also thinks repealing the local ban will save the city some legal bills:

Carlson says that Mitchell should repeal its ban because drivers could fight their tickets in court, which could cost the city money.

"There could potentially be some legal issues with it. For instance, somebody gets ticketed under our ban instead of the state ban, there could be a legal fight over that that could go potentially all the way to the South Dakota Supreme Court," Carlson said [Leland Steva, "Mitchell City Council Takes First Step in Repealing City's Texting Ban," KELO-TV, 2014.04.12].

Drivers can fight lots of tickets in court. There is debate on whether they would win the argument that the state's texting-while-driving ban supersedes any local ban. But how many drivers will litigate? The Mitchell fine is $120. Even the boldest pro se defendant will burn up that much money just in time off from work to go to court well before getting to the complicated and costly state Supreme Court stage.

I'm not saying people should not litigate when they have genuine grievances against improper laws and official actions (or inactions). I'm saying the cost of accessing our justice system, even to get a simple answer about whether state law supersedes local law, is so high that the test case Carlson fears won't materialize from most rational drivers.

Carlson also fails to include in his cost-benefit calculations the public-safety benefits Mitchell gets by more strictly encouraging drivers to keep their eyes on the road. If the tougher local ordinance makes a thousand Mitchellians decide not to pick up the phone and text while crossing town to Cabela's, and if just one of them manages not to crumple someone else's car or run over a pedestrian, the city comes out ahead, even if someday the lawyer Mitchell PD pulls over sues his way out of his $120 ticket.

5 comments

The South Dakota Legislature listens to constituents, respects local control, and sends a message that texting while driving is irresponsible, dangerous behavior. What's not to like?

David Montgomery reports that, after declaring failure just a couple days ago, legislators have crafted a compromise statewide texting ban that, actually, feels less like compromise and more like a whole lot of what good sense would call for.

We should see the details in HB 1177 shortly. But it looks like we get $100 fine for texting as a secondary offense. The Highway Patrol can't pull you over just for staring at your screen instead of the road, but when they bust you for not seeing that stop sign or drifting over the center line, they can write up your texting as well.

As a bonus (consolation?) for Republicans, the new bill would not prohibit local governments from implementing more serious penalties.

As a bonus for small-d democrats, Rep. Charlie Hoffman tells Mr. Montgomery that this bill is happening because the people want it:

"There was an enormous amount of pressure from home, and from people who talked in the last crackerbarrels, (saying) ‘Why aren’t you doing something about texting?’" said Hoffman. "People in this House and Senate didn’t want to go back on their campaign and have to be badgered with, ‘Why aren’t you doing your job?’ [David Montgomery, Lawmakers Reach Texting Ban Compromise," Political Smokeout, 2014.03.13]

Dang: voters speak, legislators respond. That's how government is supposed to work.

4 comments

House Judiciary hoghoused HB 1177, the distracted driving bill this week. Legislators kept the "We're not really Republicans!" part about trumping local control with state authority: HB 1177 now deems the Legislature "the exclusive regulator of all matters relating to distracted driving and use of electronic wireless communication devices in motor vehicles." (I want a t-shirt that says that: "Exclusive Regulator!")

But Speaker Gosch's bill has now morphed into a texting-while-driving ban. Writing, sending, or reading a text-based wireless communication a secondary offense. Under HB 1177, police couldn't pull you over for staring at your tiny screen instead of the road, but if you run over my child while typing "where r u," Smokey could write you an extra ticket.

HB 1177 still lets you fumble with your keypad as you try to type in or search for a phone number, because, you know, scrolling through your messy contact screen and punching in numbers is so much less distracting than typing other data.

The House said Wednesday that making texting a secondary offense is great. But Aberdeen city attorney Adam Altman isn't so sure HB 1177 can trump his town's more aggressive texting ban:

...Aberdeen’s texting ban is a primary offense, Altman said. That means a driver spotted texting can be pulled over for no other reason.

That’s why Aberdeen and other towns, including Sioux Falls, Rapid City, Huron, Spearfish, Sturgis, Elk Point and Dell Rapids, have all voiced opposition to the state texting proposal, Altman said. He said Aberdeen Police Chief Don Lanpher Jr. is also against the state bill.

“In general, we want the ability to make it a primary offense if the governing body so wishes,” Altman said of the communities opposed to the state measure.

The state text ban “not only says what the Legislature thinks, but tell us what we should think and how we should act,” he said.

Ultimately, Altman said, a judge might have to determine whether the state text ban would trump city bans already in place [Bob Mercer, "Texting Ban Passes House," Aberdeen American News, 2014.02.13].
The Legislature is creeping in the right direction, at least sending the message that people need to put down their toys and drive. When you're on the road, even the long road from the Capitol back home to constituents in Rapid City, Sioux Falls, and Aberdeen, keeping your eyes on the road is Job #1. Legislators should focus on enforcing that message and stop trying to take authority away from communities who feeling texting is an even greater danger than our legislators recognize.

2 comments

Have we killed the "Republicans support local control" lie yet? If not, see House Bill 1177, in which a herd of Republican legislators attempt to stamp their casual attitude toward highway safety on every local government in South Dakota.

HB 1177, sponsored by Speaker of the House Brian Gosch himself, would deny any local government the ability to adopt any ordinances pertaining to distracted driving that deviate one iota from state law. Here's the new section HB 1177 would add to statute:

No local government or local authority, except as expressly authorized by law, may adopt or enforce any ordinance or other measure regulating or restricting distracted or inattentive driving by a person who is operating a motor vehicle on a highway if the ordinance or measure is contrary to or at variance with any provision of state law relating to such activity or if no state law relating to such activity has been enacted or is in effect.

For purposes of this section, the term, distracted or inattentive driving, includes operating a motor vehicle while using electronic communications devices or electronic messaging, consuming food or beverages, interacting with passengers, watching television or other electronic or printed visual media, or engaging in other activity that may interfere with the ability to focus on driving tasks.

HB 1177 looks like another bit of Republican grandstanding that belies the GOP's misunderstanding of the concept of personal liberty. These legislators seem to think that liberty means being able to do whatever they please in their automobiles. They ignore the fact that their behavior in their vehicles, as they chat away, engrossed in their telephone conversations as they make the long drive each weekend to and from Pierre, has impacts (possibly literally!) on others.

They also ignore their own purported fealty to the principle of letting local governments decide what's best for their own communities. When Republicans want to give school districts the liberty to hand out firearms to teachers, they're all about unchecked local authority. But if some mayor or county commission dares tell a legislator to hang up and drive or lock up his pit bull, it's time for central control.

The Republican Party is not terribly concerned about public safety. They definitely aren't concerned about local control.

9 comments

I've had friends and even state legislators call me while they are driving. That's part of why it's so hard to get the South Dakota Legislature to pass a texting/phoning-while driving ban: the majority of legislators are trying to catch up on business with every spare minute, including their long, lonely weekend stretches on the highway.

I've wondered if I might have an obligation to hang up on my friends and legislators when I hear the highway rushing in the background of the phone call, to tell them, "Call me back when you've stopped."

A ruling from the Superior Court of New Jersey suggests I might. Three New Jersey judges heard an appeal from David and Linda Kubert, who lost their left legs when 18-year-old Kyle Best crossed the center line while texting female friend Shannon Colonna and hit the Kuberts' motorcycle with his truck. The Kuberts sued and got a settlement from Best, but they also sued Colonna, saying that by texting Best while he was driving, she was "electronically present" and contributed to the accident.

The lower court dismissed the suit against Colonna, and the appellate division upheld the dismissal. But the court sets this standard, which the Kuberts didn't satisfy but which other plaintiffs could:

We hold that the sender of a text message can potentially be liable if an accident is caused by texting, but only if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted [Superior Court of New Jersey, Appellate Division, Kubert v. Best and Kolonna, Docket No. A-1128-12T4, 2013.08.27].

Interesting: our legal obligation to keep it down back there! may extend from the back seat to the couch at home.

Colonna got off because, the judges concluded, "Colonna did not have a special relationship with Best by which she could control his conduct. Nor is there evidence that she actively encouraged him to text her while he was driving." However,

When the sender knows that the text will reach the driver while operating a vehicle, the sender has a relationship to the public who use the roadways similar to that of a passenger physically present in the vehicle. As we have stated, a passenger must avoid distracting the driver. The remote sender of a text who knows the recipient is then driving must do the same [Kubert v. Best and Kolonna, 2013.08.27].

This ruling underscores an important philosophical point about our evolving technology: legally, morally, attentively, we can be someplace other than where we are.

...texting someone can sometimes be the same as actually being with them. The implication of this point is a bit larger: The physical world doesn't exist separately from cyberspace; technology and life often overlap, sometimes with lethal consequences.

"I think the court is right to define 'presence' as not only rooted in physical space, but also by attention -- something digital communication can garner a substantial amount of, even over great distance," said Nathan Jurgenson, a digital theorist who has written about these issues [Matt Pearce, "New Jersey Court: Texting with a Driver Can Get You in Trouble, Too," Los Angeles Times, 2013.08.27].

Perhaps the justices and Jurgenson offer a digital-age reformulation of Home is where the heart is... an interesting point to make as I blog South Dakota from outside South Dakota.

But trust me: I won't be blogging from behind the wheel. And if you call or text with a tip, I won't respond until I'm done driving. After all, I wouldn't want to get you in trouble.

8 comments

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