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(The New Yorker)   Why your cell phone's location isn't protected by the Fourth Amendment   (newyorker.com) divider line 47
    More: Interesting, fourth amendment, United States Court of Appeals for the Fifth Circuit, friend of the courts, concurring opinions, federal courts  
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4538 clicks; posted to Main » on 08 Aug 2013 at 9:47 AM (49 weeks ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



47 Comments   (+0 »)
   
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2013-08-08 09:48:13 AM
Because f*ck you, that's why.
 
2013-08-08 09:50:54 AM
The important legal question is how much protection these records receive when the government wants to make providers turn them over.

None. The phone companies sold you out for legal immunity a long time ago.
 
2013-08-08 09:50:59 AM

Molavian: Because f*ck you, that's why.


Done in one. You forgot to attribute the quote to SCOTUS, though.
 
2013-08-08 09:51:10 AM
Because f*ck you, that's why.
 
2013-08-08 09:51:53 AM
If the Feds want to know where you were last Tuesday at 9 P.M., for example, they can get a pretty good idea

So does everybody else.  I'm was sitting at the local tavern getting bombed.
 
2013-08-08 09:52:08 AM
Because f*ck you, that's why.
 
2013-08-08 09:52:44 AM
I don't have a cell phone. What am I missing out on here?
 
2013-08-08 09:52:59 AM

Molavian: Because f*ck you, that's why.


Dr._Michael_Hfuhruhurr: Because f*ck you, that's why.


StoPPeRmobile: Because f*ck you, that's why.


Because f*ck you, that's why?
 
2013-08-08 09:53:37 AM
Well, you see, in order to make a call, the phone company has to know where you are so it can send the phone waves to you. And since the phone company needs you to tell it where you are, the phone company can share that information with the government at any time. Also, the phone numbers you use are messages between you and the phone company so they can send your phone waves to the other phone. That information is also okay to share with the government without telling you.

And we'll just interpret "secure" in "secure in your papers" to mean "safe", so the government can totally read any and all correspondences as long as you're not threatened.

Have a good day.
 
2013-08-08 09:55:17 AM

blatz514: I'm was sitting at the local tavern getting bombed.


Were you in Northern Ireland or something?
 
2013-08-08 09:55:57 AM
Just because a cell phone account is attached to my name, and the phone happened to be in a specific location... well, it doesn't mean I was actually there.  It isn't like my phone goes through a rigorous chain of custody, as anyone with young children can attest.
 
2013-08-08 09:57:05 AM

vudukungfu: I don't have a cell phone. What am I missing out on here?


I don't know . . . the death of human liberty or something.
I wasn't paying attention because Here Comes Honey Boo Boo is on TV right now.
 
2013-08-08 09:59:59 AM

NutWrench: Here Comes Honey Boo Boo is on TV right now


I can't wait for her to discover she's missed out on reality by being on a reality show and implodes on herself like a Lohan.
 
2013-08-08 10:02:23 AM
So the reason why is because the 4th amendment doesn't apply to business records?
I'm finding lots of reasons to call bullshiat on that decision.
 
2013-08-08 10:02:46 AM
Every time something like this comes up I get to wondering exactly when the government as a whole stopped being afraid of the people, as was originally intended. I know it's been a long, long time and that the change was relatively gradual, but there has to be an identifiable span of time.

It seems to come up more frequently every day.
 
2013-08-08 10:03:11 AM
What an apologetic piece of shiat article.  Yes, cops could watch your every move in the past, but this required EFFORT and MONEY and thus was not overly abused.  With phone records it costs neither effort nor money and thus is constantly abused.  Anyone that reasons retroactively searching phone records is the same as a police tail is either disingenuous or a moran.

/Hitler built his tanks in small batches
 
2013-08-08 10:05:38 AM
If and when I get a smartphone, I'm making a nice Faraday Cage holster for it so when I'm not using it, it will be turned off and sitting in electronic solitary until called upon.
 
2013-08-08 10:06:02 AM

Mr. Ekshun: when the government as a whole stopped being afraid of the people


Viet nam, kent state, waco, etc.
 
2013-08-08 10:10:08 AM
Because Scalia masturbates to your phone conversations that's farking why
 
2013-08-08 10:11:54 AM
Wat "G.P.S."???
 
2013-08-08 10:25:34 AM

tricycleracer: blatz514: I'm was sitting at the local tavern getting bombed.

Were you in Northern Ireland or something?


I was at a bar called Dublin's.  Does that count?
 
2013-08-08 10:32:37 AM
But in the new decision, the Fifth Circuit held that the Fourth Amendment does not apply to historical cell-site information; statutory protections are their only shield. If you want more privacy, the court suggested, your best options are to call your Congressman or to ask your phone company to enact a new policy to delete or anonymize its records.

I might be willing to pay an extra premium for this service if it was provided.
 
2013-08-08 10:32:51 AM
Can I write a program for my smart phone that automatically makes a call at a specified time?  If so I could leave the phone at home with the program running then go kill someone.  I could then use the phone records as proof that I was at home at the time of the murder.

If phone records can be used to convict me then why can't they be used to exonerate me?  I know... because, "fark you, that's why"
 
2013-08-08 10:35:59 AM

Mr. Ekshun: Every time something like this comes up I get to wondering exactly when the government as a whole stopped being afraid of the people, as was originally intended. I know it's been a long, long time and that the change was relatively gradual, but there has to be an identifiable span of time.

It seems to come up more frequently every day.


The moment a goodly portion of our neighbors developed Stockholm syndrome and decided to stop asking "why SHOULD the government be allowed to do x" to "prove that the government SHOULDN'T be allowed to do x." A similar, but opposite thing happened with the rights of citizens.
 
2013-08-08 10:37:24 AM

jaybeezey: But in the new decision, the Fifth Circuit held that the Fourth Amendment does not apply to historical cell-site information; statutory protections are their only shield. If you want more privacy, the court suggested, your best options are to call your Congressman or to ask your phone company to enact a new policy to delete or anonymize its records.

I might be willing to pay an extra premium for this service if it was provided.


Another thing this pile of feces article left out is that phone companies will never anonymize 'their' phone records as it somehow leaves them liable for policing their own customers and would make them responsible for criminal acts.
 
2013-08-08 10:44:39 AM

jaybeezey: But in the new decision, the Fifth Circuit held that the Fourth Amendment does not apply to historical cell-site information; statutory protections are their only shield. If you want more privacy, the court suggested, your best options are to call your Congressman or to ask your phone company to enact a new policy to delete or anonymize its records.

I might be willing to pay an extra premium for this service if it was provided.


And the phone companies might be willing to take more of your money and sell you out anyway.
 
2013-08-08 10:50:55 AM

lewismarktwo: What an apologetic piece of shiat article.  Yes, cops could watch your every move in the past, but this required EFFORT and MONEY and thus was not overly abused.  With phone records it costs neither effort nor money and thus is constantly abused.  Anyone that reasons retroactively searching phone records is the same as a police tail is either disingenuous or a moran.

/Hitler built his tanks in small batches


i think it was a very well written article.  he's addressing the consequences of the decision.  he went through prior supreme court precedent to present the court's opinion.  he addressed the procedural complications of this decision and the uncertainty of its application going forward.  and he provided starting points for arguments to challenge this decision in other pending circuit cases and potential future cases.

the author was very biased against the decision, he even wrote to the fifth circuit court to deny making a decision on procedural grounds.  He's a lawyer/law professor.  so, he knows that a court will try to determine the least complicated/least controversial issue to resolve a controversy.  he appeared to have a good argument that there was not a real controversy (only one party). (there were probably other people writing amicus curiae (friend of the court) briefs on the substantial law, so he probably didn't hit that those issues, there's a page limit to briefs and you don't always want to beg for more pages if the issue is covered by someone else)

now, regarding the outcome of the case, he presents the GPS case as an argument that this decision is not as final as it may appear.  he is giving ammunition to anyone who wants to fight this decision.  also, he states why this case will not get to the supreme court.

this is law, not public opinion.  the fifth circuit already ruled.  you can't change that.  (or, you could follow his advice and write to your congress person for statutory guidance).  but, he maintains that there is still hope to argue against this decision, because of the procedural problems, and the fact that many sister circuits are hearing real controversies on this issue. if they rule differently, this issue will eventually be heard by the supreme court.

the article appears to be a well-written, dumbed down version for non-lawyers.  it would be interesting to read his brief to the court.

/ anyways, the argument that the cell phone information was more akin to giving information to an operator was a better analogy for the court's decision.  the 'tailing' someone argument was the GPS argument that was protected.  he cites that case because he thinks the cell phone case does not follow the GPS precedent.
 
2013-08-08 10:59:05 AM

vudukungfu: I don't have a cell phone. What am I missing out on here?


I actually like using the tracking abilities of my phone.  My family uses the Waze app to see where each other are as we travel, and that ability is not new at all.  What I am missing is why some folks didn't see this coming.  To really answer your question, the ability to google any trivial thing that comes up in conversation at any given moment when you are not home.
 
2013-08-08 11:01:50 AM

vudukungfu: I don't have a cell phone. What am I missing out on here?


The opportunity to annoy the people around you when in public, that's what.
 
2013-08-08 11:04:55 AM

vudukungfu: NutWrench: Here Comes Honey Boo Boo is on TV right now I can't wait for her to discover she's missed out on reality by being on a reality show and implodes on herself like a Lohan.


Here's hoping.
 
2013-08-08 11:10:45 AM

AverageAmericanGuy: Well, you see, in order to make a call, the phone company has to know where you are so it can send the phone waves to you. And since the phone company needs you to tell it where you are, the phone company can share that information with the government at any time. Also, the phone numbers you use are messages between you and the phone company so they can send your phone waves to the other phone. That information is also okay to share with the government without telling you.

And we'll just interpret "secure" in "secure in your papers" to mean "safe", so the government can totally read any and all correspondences as long as you're not threatened.

Have a good day.


You're comparing apples and oranges here.  In the first case, you're providing information to a second party (the phone company) with the acceptance of the fact that they can hand that info over to a third party (the government) as a condition of receiving a service from the second party (namely, the privilege of making a phone call on their network).

In the second case, you aren't sharing your private papers with anyone, so the government has no business looking at them unless they have a warrant from a judge.  This includes the conversation you had over the phone--it's between you and the person you called, not any other party.
 
2013-08-08 11:16:09 AM

blatz514: Molavian: Because f*ck you, that's why.

Dr._Michael_Hfuhruhurr: Because f*ck you, that's why.

StoPPeRmobile: Because f*ck you, that's why.

Because f*ck you, that's why?


Wait, why again?
 
GBB
2013-08-08 11:26:36 AM

mark12A: If and when I get a smartphone, I'm making a nice Faraday Cage holster for it so when I'm not using it, it will be turned off and sitting in electronic solitary until called upon.


That won't solve this issue.  This issue is that when you make a call, the provider keeps record of your location.  Your "solution" would prevent tracking when you're NOT on a call.
 
2013-08-08 11:27:18 AM
The reason there aren't any good dystopian novels being written is because we already live in one.
 
2013-08-08 11:42:14 AM
Has anyone been following Orin Kerr at the Volokh Conspiracy to see how he actually feels about this?

I thought he was on the wrong side of Jones, that is, he was on the Gov't side that it was legal, and generally for a pretty computer savvy guy, he was okay with techniques that allowed the automation of the mass tracking of people if the technique was as he said, something that old time cops on the beat could see.

So mass tracking by license plate recognition would be just fine. Mass tracking by cell phone location, just fine. Mass tracking by face recognition, just fine.

Am I wrong about this, or is that still his current position?
 
2013-08-08 11:52:58 AM

Hydra: blatz514: Molavian: Because f*ck you, that's why.

Dr._Michael_Hfuhruhurr: Because f*ck you, that's why.

StoPPeRmobile: Because f*ck you, that's why.

Because f*ck you, that's why?

Wait, why again?


Because why, that's f*ck you.
 
2013-08-08 11:57:02 AM
Well, balls.

It would be nice if the telecomms displayed some integrity and told the government to get a warrant before passing over the information.  I get it's their information to do with as they wish, but it's their information about ME, the paying customer, and I thought I had some expectation of privacy.  I guess not.

Ideally, everyone using a company that turns over phone records willlingly would quit using that phone company.  We won't, of course, for a number of reasons (indolence, early termination fees, etc).  But it would be nice.
 
2013-08-08 12:02:40 PM

GBB: mark12A: If and when I get a smartphone, I'm making a nice Faraday Cage holster for it so when I'm not using it, it will be turned off and sitting in electronic solitary until called upon.

That won't solve this issue.  This issue is that when you make a call, the provider keeps record of your location.  Your "solution" would prevent tracking when you're NOT on a call.


Whenever your phone is on, it registers itself with whatever cell phone town it can reach so that if somebody calls you the phone company knows where to send the call.  The phone company records and saves this data.  This is what they refer to in the article as "historical cell site records" and that's what the government is after, and the courts are letting them.

So yes, you can be tracked even when you're not on a call unless you turn your phone off or leave it at home, or potentially use ma12A's solution and keep it in a Faraday cage.  Which will of course prevent you from making or receiving calls also, so you might as well just turn it off and save the battery.
 
2013-08-08 12:16:54 PM

RoyBatty: Has anyone been following Orin Kerr at the Volokh Conspiracy to see how he actually feels about this?

I thought he was on the wrong side of Jones, that is, he was on the Gov't side that it was legal, and generally for a pretty computer savvy guy, he was okay with techniques that allowed the automation of the mass tracking of people if the technique was as he said, something that old time cops on the beat could see.

So mass tracking by license plate recognition would be just fine. Mass tracking by cell phone location, just fine. Mass tracking by face recognition, just fine.

Am I wrong about this, or is that still his current position?


No idea who Orin Kerr is, but my problem with this argument is that when it was done by beat cops it was inherently resource limited.  There simply wasn't the manpower to expend on tracking *everybody* so tracking was self limited to those that they had a legitimate reason to track.  With some egregious exceptions of course.

Now the police a. have much more resources and b. have extensive automation to perform this tracking - phone records, license plate scanners, surveillance cameras everywhere, facial recognition, etc.  And computer science has made the linking and mining of the sources ever more feasible so that it's now possible to track nearly everyone.

To me, the difference in degree is significant enough that the issues should be re-examined - and hopefully severely restricted.  But the law doesn't seem concerned about that - this decision, and the three letter agency meta-data collection, is going back to the lack of expectation of privacy in talking to a live operator to connect your call decades ago as justification for automated mass collection and analysis of enormous amounts of data on just about anyone.  How do you make the case that yes, this is similar in concept to what you've allowed in the past - but it should be treated differently because the scope is so different?
 
2013-08-08 01:05:59 PM

Lamberts Ho Man: RoyBatty: Has anyone been following Orin Kerr at the Volokh Conspiracy to see how he actually feels about this?

I thought he was on the wrong side of Jones, that is, he was on the Gov't side that it was legal, and generally for a pretty computer savvy guy, he was okay with techniques that allowed the automation of the mass tracking of people if the technique was as he said, something that old time cops on the beat could see.

So mass tracking by license plate recognition would be just fine. Mass tracking by cell phone location, just fine. Mass tracking by face recognition, just fine.

Am I wrong about this, or is that still his current position?

No idea who Orin Kerr is, but my problem with this argument is that when it was done by beat cops it was inherently resource limited.  There simply wasn't the manpower to expend on tracking *everybody* so tracking was self limited to those that they had a legitimate reason to track.  With some egregious exceptions of course.

Now the police a. have much more resources and b. have extensive automation to perform this tracking - phone records, license plate scanners, surveillance cameras everywhere, facial recognition, etc.  And computer science has made the linking and mining of the sources ever more feasible so that it's now possible to track nearly everyone.

To me, the difference in degree is significant enough that the issues should be re-examined - and hopefully severely restricted.  But the law doesn't seem concerned about that - this decision, and the three letter agency meta-data collection, is going back to the lack of expectation of privacy in talking to a live operator to connect your call decades ago as justification for automated mass collection and analysis of enormous amounts of data on just about anyone.  How do you make the case that yes, this is similar in concept to what you've allowed in the past - but it should be treated differently because the scope is so different?


Well, I think you just said it. You state this is completely different from what you allowed in the past because the scope of it is so different because the resource requirements are so dramatically less. That it's one thing for a sheriff on a horse to see you on your horse in 1777 pass by, but it's completely different to have ANPR machines and cameras set up on every streetlight.

All that said, I find Orin Kerr a sort of frustrating character. He is a very smart, very computer savvy professor of law at George Washington Law School who clerked for Anthony Kennedy.

He absolutely understands all these issues, and seems to not have the strong civil liberties bent about him that I would prefer.

But he's not Snidely Whiplash opposed to civil liberties issues, quite the contrary, I find him mostly on what I consider the side of the people, he's just 20 degrees out of tune.

And if you're interested in the issues, he explains them very well.

The Volokh Conspiracy is an excellent blog to follow for the intersection of modern law issues and society for that reason, but it can be frustrating.
 
2013-08-08 01:10:14 PM

Lamberts Ho Man: GBB: mark12A: If and when I get a smartphone, I'm making a nice Faraday Cage holster for it so when I'm not using it, it will be turned off and sitting in electronic solitary until called upon.

That won't solve this issue.  This issue is that when you make a call, the provider keeps record of your location.  Your "solution" would prevent tracking when you're NOT on a call.

Whenever your phone is on, it registers itself with whatever cell phone town it can reach so that if somebody calls you the phone company knows where to send the call.  The phone company records and saves this data.  This is what they refer to in the article as "historical cell site records" and that's what the government is after, and the courts are letting them.

So yes, you can be tracked even when you're not on a call unless you turn your phone off or leave it at home, or potentially use ma12A's solution and keep it in a Faraday cage.  Which will of course prevent you from making or receiving calls also, so you might as well just turn it off and save the battery.


Most phones can be tracked with the phone off.  You have to remove the battery.  Good luck trying that with an iPhone.  A Faraday cage is the only 'practical' way.
 
2013-08-08 01:21:22 PM

lewismarktwo: Lamberts Ho Man: GBB: mark12A: If and when I get a smartphone, I'm making a nice Faraday Cage holster for it so when I'm not using it, it will be turned off and sitting in electronic solitary until called upon.

That won't solve this issue.  This issue is that when you make a call, the provider keeps record of your location.  Your "solution" would prevent tracking when you're NOT on a call.

Whenever your phone is on, it registers itself with whatever cell phone town it can reach so that if somebody calls you the phone company knows where to send the call.  The phone company records and saves this data.  This is what they refer to in the article as "historical cell site records" and that's what the government is after, and the courts are letting them.

So yes, you can be tracked even when you're not on a call unless you turn your phone off or leave it at home, or potentially use ma12A's solution and keep it in a Faraday cage.  Which will of course prevent you from making or receiving calls also, so you might as well just turn it off and save the battery.

Most phones can be tracked with the phone off.  You have to remove the battery.  Good luck trying that with an iPhone.  A Faraday cage is the only 'practical' way.


Interesting - how does that work?
 
GBB
2013-08-08 01:26:25 PM

Lamberts Ho Man: GBB: mark12A: If and when I get a smartphone, I'm making a nice Faraday Cage holster for it so when I'm not using it, it will be turned off and sitting in electronic solitary until called upon.

That won't solve this issue.  This issue is that when you make a call, the provider keeps record of your location.  Your "solution" would prevent tracking when you're NOT on a call.

Whenever your phone is on, it registers itself with whatever cell phone town it can reach so that if somebody calls you the phone company knows where to send the call.  The phone company records and saves this data.  This is what they refer to in the article as "historical cell site records" and that's what the government is after, and the courts are letting them.

So yes, you can be tracked even when you're not on a call unless you turn your phone off or leave it at home, or potentially use ma12A's solution and keep it in a Faraday cage.  Which will of course prevent you from making or receiving calls also, so you might as well just turn it off and save the battery.


Well, I knew about tracking while not on a call, but I was under an admittedly naive assumption that the article was referring to cell location data *during* a call.
 
2013-08-08 02:33:46 PM

Lamberts Ho Man: lewismarktwo: Lamberts Ho Man: GBB: mark12A: If and when I get a smartphone, I'm making a nice Faraday Cage holster for it so when I'm not using it, it will be turned off and sitting in electronic solitary until called upon.

That won't solve this issue.  This issue is that when you make a call, the provider keeps record of your location.  Your "solution" would prevent tracking when you're NOT on a call.

Whenever your phone is on, it registers itself with whatever cell phone town it can reach so that if somebody calls you the phone company knows where to send the call.  The phone company records and saves this data.  This is what they refer to in the article as "historical cell site records" and that's what the government is after, and the courts are letting them.

So yes, you can be tracked even when you're not on a call unless you turn your phone off or leave it at home, or potentially use ma12A's solution and keep it in a Faraday cage.  Which will of course prevent you from making or receiving calls also, so you might as well just turn it off and save the battery.

Most phones can be tracked with the phone off.  You have to remove the battery.  Good luck trying that with an iPhone.  A Faraday cage is the only 'practical' way.

Interesting - how does that work?


Well, I am not a cell phone designer but I would assume the screen and buttons go dark and the internals and antenna stay on because the battery is still able to give them power.  Sure, this might not be in use for most everyday shlubs, but it is possible.

https://ssd.eff.org/wire/protect/cell-tracking
http://www.mediabistro.com/appnewser/nsa-is-capable-of-tracking-cell -p hones-when-theyre-turned-off_b38827
 
2013-08-08 03:24:10 PM

lewismarktwo: Lamberts Ho Man: lewismarktwo: Lamberts Ho Man: GBB: mark12A: If and when I get a smartphone, I'm making a nice Faraday Cage holster for it so when I'm not using it, it will be turned off and sitting in electronic solitary until called upon.

That won't solve this issue.  This issue is that when you make a call, the provider keeps record of your location.  Your "solution" would prevent tracking when you're NOT on a call.

Whenever your phone is on, it registers itself with whatever cell phone town it can reach so that if somebody calls you the phone company knows where to send the call.  The phone company records and saves this data.  This is what they refer to in the article as "historical cell site records" and that's what the government is after, and the courts are letting them.

So yes, you can be tracked even when you're not on a call unless you turn your phone off or leave it at home, or potentially use ma12A's solution and keep it in a Faraday cage.  Which will of course prevent you from making or receiving calls also, so you might as well just turn it off and save the battery.

Most phones can be tracked with the phone off.  You have to remove the battery.  Good luck trying that with an iPhone.  A Faraday cage is the only 'practical' way.

Interesting - how does that work?

Well, I am not a cell phone designer but I would assume the screen and buttons go dark and the internals and antenna stay on because the battery is still able to give them power.  Sure, this might not be in use for most everyday shlubs, but it is possible.

https://ssd.eff.org/wire/protect/cell-tracking
http://www.mediabistro.com/appnewser/nsa-is-capable-of-tracking-cell -p hones-when-theyre-turned-off_b38827


I truly don't know what is going on.

Your first link to the eff, I investigated it for a couple of hours a year or so ago, and it seems to be based on Declan Mccullagh 2006 cell phone tracking article. Most of these sorts of cell phones can be tracked even when turned off articles trace back to that single article, and no others. And it's never been backed up by any other claim since then except for your second link.

Even in 2006, it was probably not the case that it worked for most phones, only a few models of Nokia and similar phones that truly never ever turned off and probably on a few cooperating carriers that allowed the NSA to upload firmware as diagnostic. And still there was speculation that it was the battery itself that had been swapped out and replaced with a battery with a mic on it. And those phones were not smartphones.

I find it hard to believe that a modern android smartphone can be turned off and yet not be turned off. There would seem to be too many people with access to the source and experimenting with these phones not to figure out the code that says power down doesn't power down. Or that phones powered off, still don't have live electrical circuits as they hack into them.

Or that when I turn my phone off and leave it off for a week at a time sometimes, there seems to be no power drain as I would think might occur with phones still being tracked.

What is interesting to me is the newest claim, also from 2004/2006ish about this tracking of phones in Afghanistan when turned off.

Again, it is just this one claim, and it is somewhat vague, but it seems far more interesting to me than the claims based on the 2006 Declan McCullagh article.

I hope reporters and/or Greenwald/Snowden follow up on that.
 
2013-08-08 09:46:29 PM
Because it constantly transmits its location in every direction over a wide area to anyone who could possibly care?
 
2013-08-08 11:58:44 PM

blatz514: Molavian: Because f*ck you, that's why.

Dr._Michael_Hfuhruhurr: Because f*ck you, that's why.

StoPPeRmobile: Because f*ck you, that's why.

Because f*ck you, that's why?


And the horse you rode in on
Ans the horse your mother rode in on.
 
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