This should prove an interesting conundrum for those who supported the NSA’s warrantless terrorist-surveillance program. The FBI and local law enforcement agencies have been accessing cell-phone tracking data, possible with the newer generations of GPS-embedded smart phones, in order to solve regular crimes as well as in the national-security arena, using a low bar for cause on warrants. Does this constitute an intelligent leverage of new technology, or a danger to civil liberties?
Amid all the furor over the Bush administration’s warrantless wiretapping program a few years ago, a mini-revolt was brewing over another type of federal snooping that was getting no public attention at all. Federal prosecutors were seeking what seemed to be unusually sensitive records: internal data from telecommunications companies that showed the locations of their customers’ cell phones—sometimes in real time, sometimes after the fact. The prosecutors said they needed the records to trace the movements of suspected drug traffickers, human smugglers, even corrupt public officials. But many federal magistrates—whose job is to sign off on search warrants and handle other routine court duties—were spooked by the requests. Some in New York, Pennsylvania, and Texas balked. Prosecutors “were using the cell phone as a surreptitious tracking device,” said Stephen W. Smith, a federal magistrate in Houston. “And I started asking the U.S. Attorney’s Office, ‘What is the legal authority for this? What is the legal standard for getting this information?’ ”
Those questions are now at the core of a constitutional clash between President Obama’s Justice Department and civil libertarians alarmed by what they see as the government’s relentless intrusion into the private lives of citizens. There are numerous other fronts in the privacy wars—about the content of e-mails, for instance, and access to bank records and credit-card transactions. The Feds now can quietly get all that information. But cell-phone tracking is among the more unsettling forms of government surveillance, conjuring up Orwellian images of Big Brother secretly following your movements through the small device in your pocket. …
The Justice Department doesn’t keep statistics on requests for cell-phone data, according to the spokeswoman. So it’s hard to gauge just how often these records are retrieved. But Al Gidari, a telecommunications lawyer who represents several wireless providers, tells NEWSWEEK that the companies are now getting “thousands of these requests per month,” and the amount has grown “exponentially” over the past few years. Sprint Nextel has even set up a dedicated Web site so that law-enforcement agents can access the records from their desks—a fact divulged by the company’s “manager of electronic surveillance” at a private Washington security conference last October. “The tool has just really caught on fire with law enforcement,” said the Sprint executive, according to a tape made by a privacy activist who sneaked into the event. (A Sprint spokesman acknowledged the company has created the Web “portal” but says that law-enforcement agents must be “authenticated” before they are given passwords to log on, and even then still must provide valid court orders for all nonemergency requests.)
My new cellphone, the Motorola Cliq, has GPS capability — which can be controlled remotely. I can access the network through a website to enable the GPS function, then use it to pinpoint the phone’s location. The manufacturer sells this as a big feature for those who occasionally lose their cell phones, in order to retrieve it quickly, or to remotely erase all of the personal information stored on it.
This has obvious implications for privacy, and it was obvious to me as soon as I heard about it. But even before this, I knew that cell companies could constantly track digital devices based on their connection to the cell nodes and triangulate location to a small general area. (The older analog devices could only be tracked when used on a call.) GPS just makes it more specific — a lot more specific. The GPS data, if constantly tracked, could reproduce the movements of any cell-phone user that leaves their device powered on.
Most of us would understand that law-enforcement agencies have a need occasionally to track a suspect in a criminal matter and certainly for the FBI in counterterrorist operations. However, according to this Newsweek report, the Obama administration and other agencies are using a particularly weak type of claim in order to make thousands of requests a month, most of which have nothing to do with national security:
The grounds for such requests, says Smith, were often flimsy: almost all were being submitted as “2703(d)” orders—a reference to an obscure provision of a 1986 law called the Stored Communications Act, in which prosecutors only need to assert that records are “relevant” to an ongoing criminal investigation. That’s the lowest possible standard in federal criminal law, and one that, as a practical matter, magistrates can’t really verify. …
A potentially more sinister request came from some Michigan cops who, purportedly concerned about a possible “riot,” pressed another telecom for information on all the cell phones that were congregating in an area where a labor-union protest was expected. “We haven’t even begun to scratch the surface of abuse on this,” says Gidari.
I’m no fan of labor-union activism, but Americans have a right to peaceably assemble for political purposes without the government conducting covert surveillance. Just as with the NSA’s program, this is a very powerful tool that law enforcement can and should use — but for legitimate and very limited purposes. This requires a much higher standard for warrants on law enforcement investigations than what is described in this article.