Judges Resist Police on Cellphones as Tracking Devices

by Last Night in Little Rock

You've seen it on CSI: NY: police use cellphones as tracking devices by a mere call to the cellphone provider. It's not that easy, at least not anymore.

Three recent cases have been reported on www.FourthAmendment.com where the government's request to use cellphones to track them real time have been denied. The NY Times has a comprehensive article about it today by Matt Richtel: Live Tracking of Mobile Phones Prompts Court Fights on Privacy.

It is quite real and tells us that, while Big Brother is not watching, Big Brother can try to get the information from your cellphone provider via the USA PATRIOT Act. An allegation of terrorism, however, is not required. Yet another abuse of the PATRIOT Act.

Judges, however, have stopped buying into it without a showing of probable cause or exigent circumstances. But, under the PATRIOT Act, a terrorism allegation is not required.

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.

By the way, CBS's Websites for the CSI series shows have ready links under a tab marked "handbook" of "evidence," "tools," and "procedure" to explain what they are doing that is the easiest place to look when a crime lab person slips into "forensic babble." See the websites of CSI and CSI: NY where the two appear to be the same. For litigators who need to know, it is as good as any book.

[cross posted to www.FourthAmendment.com]

< 11 Days for Jaywalking in Dallas | Justice Dept. to Fourth Circuit: Never Mind >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft

  • Display: Sort:
    Re: Judges Resist Police on Cellphones as Tracking (none / 0) (#1)
    by Edger on Sat Dec 17, 2005 at 01:06:51 PM EST
    Cellphone tracking takes advantage, I think, of a general lack of knowledge that it can be done, as well as technical ignorance of how it is enabled by cell network design and function. The phones, when powered, whether turned on or not, are constantly "handshaking", exchanging location data (what cell is the phone physically in) with the network to enable it to forward calls to you. Removing the battery from the phone when you're not using it means no handshaking location data exchanges, i.e. no tracking. Simple. A related fast developing and worrisome technology that operates in a similar fashion is embedding RFID chips in licence plates to enable tracking. Apparently covering the chips with a piece of transparent mylar tape blocks the signal... but I'm not sure on this... any one else know?

    Edger, when the cell phone is turned off it does NOT do any handshaking. FCC regs require that when a cell phone is turned off that it can't transmit or receive anything. This is so that people can safely turn off phones in airplanes, hospitals, and other places where their phones might interfere with sensitive equipment. And mylar is just a type of plastic. Mylar in and of itself is not going to shield anything.

    Battle Over Patriot Act Reauthorization Continues Tell Your Senators to Block Bad Bill: Vote Against Cloture Motion Many of you have written and called on this issue before and the temptation is to say, “I’ve already contacted my Senators and Representative.” The battle isn’t over though until the fat lady sings as they say. Its more urgent now than ever that you write again because the battle has not been won. On Thursday, December 8, 2005, only 23 days before parts of the controversial USA Patriot Act were due to expire, some conferees reached an agreement on Patriot Act reauthorization that does nothing to protect the privacy of your personal records. Under the report, the FBI would still be able to gather your personal medical, financial, library, gun purchase and other records without absolutely any evidence linking your records to a suspected foreign terrorist. Certain sections of this controversial law are due to expire December 31, 2005. Until recently, it appeared that lawmakers were moving toward adopting the modest checks on federal power contained in the Senate reauthorization bill (S.1389), which would require a connection to a suspected terrorist to obtain Americans’ records under Section 215 of the Patriot Act. This reflected a commonsense compromise that was widely praised as a step in the right direction by a bipartisan group of lawmakers, representatives of the business community, civil liberties groups and – most importantly – the American public. But then, at the eleventh hour and behind closed doors, some Patriot Act conferees bowed to pressure from the Administration and produced a completely unacceptable conference report. However, the conferees still have a chance to fix the problems in the report and adopt the Senate reforms by filibustering the bad bill and demanding that changes be made. Take action now! Contact your Senators and urge them to reject this sham conference report and instead support a bill with meaningful changes to protect your constitutional freedoms! Tell your Senators to vote NO on cloture! Send this message to everyone you know and tell them to act before its too late! Let Congress know that you are watching and will neither forget nor forgive their actions on this Act!

    Re: Judges Resist Police on Cellphones as Tracking (none / 0) (#4)
    by Edger on Sat Dec 17, 2005 at 01:06:51 PM EST
    Ok, I could be misinformed on that Michael. I do remember an article somewhere a year or so ago that I can't locate now that gave me the impression that handshaking with the network continued as long as the battery was in the phone... then again I may have misread it. As far as the mylar tape goes, maybe using a small piece of my tinfoil hat to cover licence plate chips would would work better? ;-)

    Re: Judges Resist Police on Cellphones as Tracking (none / 0) (#5)
    by jimakaPPJ on Sat Dec 17, 2005 at 01:06:51 PM EST
    Mike Ditto - Wasn't it a few years ago in Denver that the police used a cell phone to track a fleeing felon (rapist)? Didn't they track him up I70? (thanks) et al - Assuming my memory is correct, which hopefully Mike can confirm, then the situation would be that privacy trumps catching a fleeing dangerous criminal? Why couldn't the law be changed to allow the police to use the tracking capabilities for actual fleeing suspects, but require a judge's okay for longer term "observation?" Re - License plate "chip." Sounds like there is a business opportunity there in detecting and destroying chips. Anybody know what a airport style x-ray machine and a highpowered RF transmitter costs?

    Re: Judges Resist Police on Cellphones as Tracking (none / 0) (#6)
    by MikeDitto on Sat Dec 17, 2005 at 01:06:51 PM EST
    Jim, in that case the phone belonged to the victim, and the police had her permission to track it. But DA Mitch Morrissey obtained a warrant signed by a judge in any case.

    Re: Judges Resist Police on Cellphones as Tracking (none / 0) (#7)
    by MikeDitto on Sat Dec 17, 2005 at 01:06:51 PM EST
    And he most certainly had probable cause, and the PATRIOT act was not invoked in that case.

    Re: Judges Resist Police on Cellphones as Tracking (none / 0) (#8)
    by kdog on Sat Dec 17, 2005 at 01:06:52 PM EST
    Probable cause...how quaint.