We’ve learned quite a bit the last few years about the Bush administration tapping Americans’ phones. And reading their emails. And accessing private information, including medical and library records.
But we didn’t know cellphone-tracking powers were on the list, too.
The Justice Department’s own internal recommendation say that officials seek warrants based on probable cause to obtain location information in private areas. The administration has apparently ignored those recommendations.
Federal officials are routinely asking courts to order cellphone companies to furnish real-time tracking data so they can pinpoint the whereabouts of drug traffickers, fugitives and other criminal suspects, according to judges and industry lawyers.
In some cases, judges have granted the requests without requiring the government to demonstrate that there is probable cause to believe that a crime is taking place or that the inquiry will yield evidence of a crime. Privacy advocates fear such a practice may expose average Americans to a new level of government scrutiny of their daily lives.
Apparently, wireless carriers are offering location services as a perk to customers. Responding to a federal mandate, the companies invested heavily in enhanced 911 (E911) location tracking, and hope to make up the costs by making it a feature service — one carrier offers a “loopt” service that sends an alert when a friend is near, “putting an end to missed connections in the mall, at the movies or around town.”
The group Electronic Frontier Foundation’s Kevin Bankston said, “Most people don’t realize it, but they’re carrying a tracking device in their pocket. Cellphones can reveal very precise information about your location, and yet legal protections are very much up in the air.”
And wouldn’t you know it, the Bush administration looks at this as another surveillance opportunity, based on loose legal standards.
It’s all about probable cause, which the administration doesn’t think it needs.
In a stinging opinion this month, a federal judge in Texas denied a request by a Drug Enforcement Administration agent for data that would identify a drug trafficker’s phone location by using the carrier’s E911 tracking capability. E911 tracking systems read signals sent to satellites from a phone’s Global Positioning System (GPS) chip or triangulated radio signals sent from phones to cell towers. Magistrate Judge Brian L. Owsley, of the Corpus Christi division of the Southern District of Texas, said the agent’s affidavit failed to focus on “specifics necessary to establish probable cause, such as relevant dates, names and places.”
Owsley decided to publish his opinion, which explained that the agent failed to provide “sufficient specific information to support the assertion” that the phone was being used in “criminal” activity. Instead, Owsley wrote, the agent simply alleged that the subject trafficked in narcotics and used the phone to do so. The agent stated that the DEA had ” ‘identified’ or ‘determined’ certain matters,” Owsley wrote, but “these identifications, determinations or revelations are not facts, but simply conclusions by the agency.”
Instead of seeking warrants based on probable cause, some federal prosecutors are applying for orders based on a standard lower than probable cause derived from two statutes: the Stored Communications Act and the Pen Register Statute, according to judges and industry lawyers. The orders are typically issued by magistrate judges in U.S. district courts, who often handle applications for search warrants.
In one case last month in a southwestern state, an FBI agent obtained precise location data with a court order based on the lower standard, citing “specific and articulable facts” showing reasonable grounds to believe the data are “relevant to an ongoing criminal investigation,” said Al Gidari, a partner at Perkins Coie in Seattle, who reviews data requests for carriers.
Another magistrate judge, who has denied about a dozen such requests in the past six months, said some agents attach affidavits to their applications that merely assert that the evidence offered is “consistent with the probable cause standard” of Rule 41 of the Federal Rules of Criminal Procedure. The judge spoke on condition of anonymity because of the sensitivity of the issue.
“Law enforcement routinely now requests carriers to continuously ‘ping’ wireless devices of suspects to locate them when a call is not being made . . . so law enforcement can triangulate the precise location of a device and [seek] the location of all associates communicating with a target,” wrote Christopher Guttman-McCabe, vice president of regulatory affairs for CTIA — the Wireless Association, in a July comment to the Federal Communications Commission. He said the “lack of a consistent legal standard for tracking a user’s location has made it difficult for carriers to comply” with law enforcement agencies’ demands.
“Permitting surreptitious conversion of a cellphone into a tracking device without probable cause raises serious Fourth Amendment concerns especially when the phone is in a house or other place where privacy is reasonably expected,” said Judge Stephen William Smith of the Southern District of Texas, whose 2005 opinion on the matter was among the first published.
If there’s a reasonable explanation for the administration’s approach, it’s hiding well.