[Clips] Live Tracking of Mobile Phones Prompts Court Fights on Privacy
R. A. Hettinga
rah at shipwright.com
Sat Dec 10 07:41:28 PST 2005
Wherein the NYT discovers physics and is shocked, shocked, to find that
radios can be triangulated. Especially when the government mandates that
GPS transponders be installed in them.
Sheesh.
Cheers,
RAH
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Date: Sat, 10 Dec 2005 10:30:39 -0500
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From: "R. A. Hettinga" <rah at shipwright.com>
Subject: [Clips] Live Tracking of Mobile Phones Prompts Court Fights on
Privacy
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<http://www.nytimes.com/2005/12/10/technology/10phone.html?ei=5065&en=a2a07f37e5bcbe9e&ex=1134795600&partner=MYWAY&pagewanted=print>
The New York Times
December 10, 2005
Live Tracking of Mobile Phones Prompts Court Fights on Privacy
By MATT RICHTEL
Most Americans carry cellphones, but many may not know that government
agencies can track their movements through the signals emanating from the
handset.
In recent years, law enforcement officials have turned to cellular
technology as a tool for easily and secretly monitoring the movements of
suspects as they occur. But this kind of surveillance - which investigators
have been able to conduct with easily obtained court orders - has now come
under tougher legal scrutiny.
In the last four months, three federal judges have denied prosecutors the
right to get cellphone tracking information from wireless companies without
first showing "probable cause" to believe that a crime has been or is being
committed. That is the same standard applied to requests for search
warrants.
The rulings, issued by magistrate judges in New York, Texas and Maryland,
underscore the growing debate over privacy rights and government
surveillance in the digital age.
With mobile phones becoming as prevalent as conventional phones (there are
195 million cellular subscribers in this country), wireless companies are
starting to exploit the phones' tracking abilities. For example, companies
are marketing services that turn phones into even more precise global
positioning devices for driving or allowing parents to track the
whereabouts of their children through the handsets.
Not surprisingly, law enforcement agencies want to exploit this technology,
too - which means more courts are bound to wrestle with what legal standard
applies when government agents ask to conduct such surveillance.
Cellular operators like Verizon Wireless and Cingular Wireless know,
within about 300 yards, the location of their subscribers whenever a phone
is turned on. Even if the phone is not in use it is communicating with
cellphone tower sites, and the wireless provider keeps track of the phone's
position as it travels. The operators have said that they turn over
location information when presented with a court order to do so.
The recent rulings by the magistrates, who are appointed by a majority of
the federal district judges in a given court, do not bind other courts. But
they could significantly curtail access to cell location data if other
jurisdictions adopt the same reasoning. (The government's requests in the
three cases, with their details, were sealed because they involve
investigations still under way.)
"It can have a major negative impact," said Clifford S. Fishman, a former
prosecutor in the Manhattan district attorney's office and a professor at
the Catholic University of America's law school in Washington. "If I'm on
an investigation and I need to know where somebody is located who might be
committing a crime, or, worse, might have a hostage, real-time knowledge of
where this person is could be a matter of life or death."
Prosecutors argue that having such information is crucial to finding
suspects, corroborating their whereabouts with witness accounts, or helping
build a case for a wiretap on the phone - especially now that technology
gives criminals greater tools for evading law enforcement.
The government has routinely used records of cellphone calls and caller
locations to show where a suspect was at a particular time, with access to
those records obtainable under a lower legal standard. (Wireless operators
keep cellphone location records for varying lengths of time, from several
months to years.)
But it is unclear how often prosecutors have asked courts for the right to
obtain cell-tracking data as a suspect is moving. And the government is not
required to report publicly when it makes such requests.
Legal experts say that such live tracking has tended to happen in
drug-trafficking cases. In a 2003 Ohio case, for example, federal drug
agents used cell tracking data to arrest and convict two men on drug
charges.
Mr. Fishman said he believed that the number of requests had become more
prevalent in the last two years - and the requests have often been granted
with a stroke of a magistrate's pen.
Prosecutors, while acknowledging that they have to get a court order before
obtaining real-time cell-site data, argue that the relevant standard is
found in a 1994 amendment to the 1986 Stored Communications Act, a law that
governs some aspects of cellphone surveillance.
The standard calls for the government to show "specific and articulable
facts" that demonstrate that the records sought are "relevant and material
to an ongoing investigation" - a standard lower than the probable-cause
hurdle.
The magistrate judges, however, ruled that surveillance by cellphone -
because it acts like an electronic tracking device that can follow people
into homes and other personal spaces - must meet the same high legal
standard required to obtain a search warrant to enter private places.
"Permitting surreptitious conversion of a cellphone into a tracking device
without probable cause raises serious Fourth Amendment concerns, especially
when the phone is monitored in the home or other places where privacy is
reasonably expected," wrote Stephen W. Smith, a magistrate in Federal
District Court in the Southern District of Texas, in his ruling.
"The distinction between cell site data and information gathered by a
tracking device has practically vanished," wrote Judge Smith. He added that
when a phone is monitored, the process is usually "unknown to the phone
users, who may not even be on the phone."
Prosecutors in the recent cases also unsuccessfully argued that the
expanded police powers under the USA Patriot Act could be read as allowing
cellphone tracking under a standard lower than probable cause.
As Judge Smith noted in his 31-page opinion, the debate goes beyond a
question of legal standard. In fact, the nature of digital communications
makes it difficult to distinguish between content that is clearly private
and information that is public. When information is communicated on paper,
for instance, it is relatively clear that information written on an
envelope deserves a different kind of protection than the contents of the
letter inside.
But in a digital era, the stream of data that carries a telephone
conversation or an e-mail message contains a great deal of information -
like when and where the communications originated.
In the digital era, what's on the envelope and what's inside of it, "have
absolutely blurred," said Marc Rotenberg, executive director of the
Electronic Privacy Information Center, a privacy advocacy group.
And that makes it harder for courts to determine whether a certain digital
surveillance method invokes Fourth Amendment protections against
unreasonable searches.
In the cellular-tracking cases, some legal experts say that the Store
Communications Act refers only to records of where a person has been, i.e.
historical location data, but does not address live tracking.
Kevin Bankston, a lawyer for the Electronic Frontier Foundation, a privacy
advocacy group that has filed briefs in the case in the Eastern District of
New York, said the law did not speak to that use. James Orenstein, the
magistrate in the New York case, reached the same conclusion, as did Judge
Smith in Houston and James Bredar, a magistrate judge in the Federal
District Court in Maryland.
Orin S. Kerr, a professor at the George Washington School of Law and a
former trial attorney in the Justice Department specializing in computer
law, said the major problem for prosecutors was Congress did not appear to
have directly addressed the question of what standard prosecutors must meet
to obtain cell-site information as it occurs.
"There's no easy answer," Mr. Kerr said. "The law is pretty uncertain here."
Absent a Congressional directive, he said, it is reasonable for magistrates
to require prosecutors to meet the probable-cause standard.
Mr. Fishman of Catholic University said that such a requirement could
hamper law enforcement's ability to act quickly because of the paperwork
required to show probable cause. But Mr. Fishman said he also believed that
the current law was unclear on the issue.
Judge Smith "has written a very, very persuasive opinion," Mr. Fishman
said. "The government's argument has been based on some tenuous premises."
He added that he sympathized with prosecutors' fears.
"Something that they've been able to use quite successfully and usefully is
being taken away from them or made harder to get," Mr. Fishman said. "I'd
be very, very frustrated."
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R. A. Hettinga <mailto: rah at ibuc.com>
The Internet Bearer Underwriting Corporation <http://www.ibuc.com/>
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'
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R. A. Hettinga <mailto: rah at ibuc.com>
The Internet Bearer Underwriting Corporation <http://www.ibuc.com/>
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'
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