[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.


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 The New York Times

 December 10, 2005

 Live Tracking of Mobile Phones Prompts Court Fights on Privacy

 Most Americans carry cellphones, but many may not know that government
 agencies can track their movements through the signals emanating from the

 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

 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

 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

 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."

 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'
 Clips mailing list
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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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