phones have location beacons, does the FBI have the right to trace every cell phone inside the building to determine if people were there legally (interns, aides, congress people, etc) or illegally?
or is something with a net that wide illegal? can the government just request data of all 5000+ people whose phones said they were at one location where a massive crime is occurring?
IANAL,
but I believe that would be too wide a net.
Remember the FBI is primarily interested in convictions. Which means the evidence has to be collected in a pristine manner. If they swept up all the cell phones and got that ruled illegal, nothing that happened as a result of that illegal search would be admissible.
These folks aren’t going anywhere. At least the cannon fodder. The actual organizers would have been very unlikely to keep their cells on in the capital… 
BTW, now that the capital policeman has died, everyone involved in this riot is potentially on the hook for murder one.
I’m not sure they can go all “Criminal Minds” on their asses. But even if they could, it would seem inconclusive to me. As the person could just say their phone was lost or stolen.
Those idiots taking selfies with the Po-Po though… Lol.
Probably not (from the link)
"For starters, the federal murder statute (which is the law that would apply to crimes committed in the District of Columbia) lays out the following list of crimes that could constitute an underlying offense for felony murder:
"[a killing ] or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children.”
You’ll notice that “rioting” or “inciting riots” isn’t on this list. Without more, none of the crimes listed seem to be a close match with the facts we know about rioters (or any individuals including Donald Trump, who may have encouraged riots). Some may suggest that “treason” was committed (or at least attempted), but under the statute, that’s not quite right, either. Nor is sabotage, which applies more narrowly to military supplies and installations and not to the houses of political power.
Law&Crime spoke with criminal defense lawyer and President of the Connecticut Criminal Defense Lawyers Association Frank Riccio, who said, “I believe that even a very liberal interpretation of the treason statute may not wholly fit what occurred at the U.S. Capitol today.” Therefore, Riccio continued, “the felony murder rule, also known as murder in the first degree via 18 USC §1111, likely doesn’t apply.”
They can…the question us, do they want to? They clearly knew about this in advance, hell, the alt right was bragging beforehand. And they permitted it. Even now, they are offering a suspiciously small $50,000 reward for info leading to the pipe bomber. $50,000 for the most talked-about terrorist since Osama bin Laden is a deliberate dog whistle indicating lack of interest.
These are often referred to as “reverse warrants”, where a warrant will be used to request of Google, and others that store location information, a list of all phones in an area during a period of time. For example it’s been used to investigate arson, and other crimes.
I am sure somebody is preparing one right now.
As stated, just because a phone happened to be in the area at the time, doesn’t mean the person who owns that phone committed a crime.
It’s also very possible that a Stingray type device was in use in the area, which would have kept a record of all phones that connected to it. They don’t like to talk about these, though, so it is also likely evidence from it (if it exists) will never show up in court documents.
Just because you (general “you”) were in the vicinity does not make you guilty. The data you are talking about is a very wide net.
But the police agencies can, and probably will, use that data in a process to find the people they want to bust.
But it does make you guilty. if they have the ability to identify a person’s GPS coordinates that place them inside the capitol building during the time of the riot, that implies someone had their phone and was part of the riot. I’m sure they can differentiate with GPS the difference between someone inside the capital vs someone who stayed behind the barricades. Just check the GPS coordinates of any phone within the building.
Obviously that alone doesn’t prove ‘you’ were in the building because someone could’ve stolen your phone. But from what I’ve seen a lot of these people did bring their phones, which would make IDing them much easier when that info is obtained.
I am unclear how close they can pinpoint a person when thousands are in an area.
Can they say YOU were in Pelosi’s office or can they only say you were within a mile radius of her office?
Again, I don’t know how narrow they can pinpoint people in a crowd and how that plays out in court.
Such information might not be used as evidence, but rather to identify suspects to do further investigation for evidence that would be used in court.
Depends on the data. Cell tower data might not give that kind of precision, but if they have Google or Facebook collecting location information, that uses GPS so would be pretty precise.
I’m just going to assume that the NSA already has the information.
Almost all large buildings have indoor cell repeaters. These are lower power than normal cell towers, so if you’re connected to one, you’re almost certainly inside that particular building. They may also have logs from WiFi access points, which the phone will occasionally “ping” while nearby (though most phones now will do so in a way that can’t be traced back to itself later).
Not a lawyer, but my yank-it-out-of-my-ass guess is, just reviewing phone signals is exhaustive and there’s no guarantee it would lead anywhere; probably far more fruitful to start with faces, catch the faces in the act of doing something clearly illegal, match it up with eyewitness testimony, and then use tips to match names with faces. Once they do that, it’s a matter of using digital forensics to confirm their identities, their presence, and their behavior, all of which would corroborate the charges of criminal conduct. Depending on the amount of evidence they have, the feds can convict even if they chuck their phones.
They could have been in the vicinity of the riot and not necessarily present with the intent to riot; might be nothing more than trespassing or unauthorized access - sure they could be prosecuted but that’s not necessarily good bang for the buck.
Soooo…
Can the government nail you by cellphone location or not?
Yes, if they have a warrant.
The Supreme Court decided in 2018 that you need actual probable cause and not just a “2703(d) order”. But if they have that, I see no reason why they can’t use the data from indoor cell repeaters to at least place people inside a building they don’t belong in. Especially since there will be multiple repeaters, and the phone will connect to the strongest one (i.e., one deeper inside the building instead of one near the door and that might leak outside slightly).
But this supposes they know who you are and get a warrant for you.
That is different than saying give us all cell phone pings in this one-mile (or whatever) radius.
I’m not saying that, I’m saying can the government say 'give us all cell phone data of anyone who was within the capitol building, which means GPS coordinated XYZ. Then they sift through that to find who is allowed to be there because they work there, then assume everyone else inside the building was there illegally and try to build a case off that.
Seems like a good start for law enforcement but I suspect they will need more.
That said, IANAL, I really don’t know in this case.