Is The Government Tracking Your (Cell Phone's) Movements?

Our thanks are due to the ACLU and the EFF for their tireless efforts to safeguard our privacy in the age of electronic information. As technology changes, the government finds new ways to circumvent the Fourth Amendment. These organizations do their best to stay on top of the government's intrusion into our electronic lives.

The ACLU made a Freedom of Information Act request (pdf) to the Justice Department seeking information about the government's warrantless tracking of cell phone locations.

The ACLU filed the FOIA request in November following media reports that federal officials were using Americans' cellular phones to pinpoint their locations without a warrant or any court oversight, the groups said. Some government officials at the time said they did not need probable cause to obtain tracking information from mobile phones. In addition, the reports said some federal law enforcement agents had obtained tracking data from wireless carriers without any court oversight.

The Justice Department declined the request. The ACLU and the EFF responded by filing suit (pdf) to compel the disclosure.

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    Rights - Americans Don't Need No (5.00 / 1) (#3)
    by MO Blue on Wed Jul 02, 2008 at 07:38:46 PM EST
    4th Amendment rights.

    And while we are at it, I think that we should rewrite the Congressional oath of office. Remove all that silly stuff about defending the Constitution and replace it with the following:

    I do solemnly swear (or affirm) that I will support and defend my absolute right to hold this seat indefinitely and dedicate myself to filling my campaign coffers by any means necessary. I hereby state there is no issue or principle that can not be bartered away to meet these objectives.

    The original logic was (none / 0) (#16)
    by jccamp on Wed Jul 02, 2008 at 08:50:27 PM EST
    that a cell phone user knew that the cell phone was periodically broadcasting an electronic signal, which can be intercepted by commercially available devices. The theory was that a cell phone user voluntarily surrendered any expectation of privacy as to location, since any civilian with the desire to do so, could intercept the signal and extrapolate a location. I do not know if there are commercially available devices that can do the same thing with a new GPS phone.  
    Originally, the same theory applied as well to the actual conversations, maybe analogous to using a CB radio. Anyone could buy equipment that allowed the calls to be overheard. However, eavesdropping on cell phone calls is now forbidden by statute. Commercially sold radio scanners now cannot include the frequencies used by cell phones.

    I presume that the government's ability to use cell phones to track locations (or to listen to calls) is now subject to the same limitations as any other search.

    Since the phone signals are flying about the ether, the government may not need the assistance or approval of the various cell phone carriers. The signals can probably be intercepted independent of the actual carrier, although having the active help of the carrier would certainly make things easier.

    However, I can see many other abuses of GPS enabled phones. Can a spouse use the GPS capability to track an errant husband or wife? Suppose the phone account is paid for and it's in the name of the suspicious spouse. Can parents track minor children without the children's consent? If I loan someone my cell phone, does that person have any expectation of privacy (from me)?


    I have to admit I'm a little confused (none / 0) (#17)
    by MO Blue on Wed Jul 02, 2008 at 09:09:02 PM EST
    by this statement of yours:

    I presume that the government's ability to use cell phones to track locations (or to listen to calls) is now subject to the same limitations as any other search.

    Seems the whole point of this post was that the government may not adhering to any of the limitations required for any other search.

    The ACLU filed the FOIA request in November following media reports that federal officials were using Americans' cellular phones to pinpoint their locations without a warrant or any court oversight, the groups said.

    Actually, there's an unsubstantiated (none / 0) (#18)
    by jccamp on Wed Jul 02, 2008 at 10:01:12 PM EST
    allegation via a media report that the government may be tracking cell phone users without court approval.

    As per the replies from both presidential campaigns, the absolute requirement for court approval for tracking is not settled law. I personally think that it should be, and that the laws governing other searches should apply.

    Even if you assume that the court sanctioning requirement is present, there are times when no court sanctioning is required. If the cell phone possessor has no expectation of privacy, then court approval is not required. As has been common past practice, say a terror group uses identity theft to avoid detection. A illegally obtained cell phone may not confer expectation of privacy. A track subject to FISA circumstances may also not need prior court approval.
    Or, if an intelligence agency decides it doesn't care if information obtained is not admissible into a court, that it only desires the data for intelligence purposes, then they may not seek court approval. There may be no provision in law or precedence preventing that attitude.

    Lastly, law enforcement does not need a court order to engage in physical surveillance, like following someone driving a car. Using a cell phone for location purposes only can be argued to be nothing more than similar surveillance.

    This is an issue that needs to be settled. But if there's a grey area, maybe some government agencies are stepping into that void. I would disagree with that as a poor tactic for a number of reasons. But it may not be illegal for them to do so.


    The theory is it isn't a search (none / 0) (#22)
    by Ben Masel on Thu Jul 03, 2008 at 12:45:55 AM EST
    since you've given up rights to your location history by giving up the data to the cell carrier.

    Which of course doesn't follow (none / 0) (#23)
    by s5 on Thu Jul 03, 2008 at 01:32:33 AM EST
    Just because I tell something to another private entity doesn't mean it's public information. If I tell my wife a secret, should I expect that the police have the right to know too? Likewise, if I tell my cell carrier about my location, why should that translate to law enforcement having a right to know?

    Why? (5.00 / 3) (#24)
    by Ben Masel on Thu Jul 03, 2008 at 04:54:18 AM EST
    because the 4th Amendment underwent serious erosion through the 30 years before Bush took office. No-one cared as long as the defendants in those cases were scary drug dealers.

    Upcoming legislation from Tammy Baldwin (5.00 / 1) (#4)
    by Ben Masel on Wed Jul 02, 2008 at 08:13:02 PM EST
    After making location privacy a signature issue in my 2006 Senate race, i've persuaded my House rep., Tammy Baldwin to sponsor legislation creating Statutory privacy rights in the data. She's the only Member on the 2 Committees with jurisdiction, Judiciary and Commerce.

    We're looking towards hearings later this year, with passage hopefully early in the next Congress.

    The general shape of the bill:

    Phones would still be tracked in realtime, enabling E-911. Customer would decide whether the data's retained.

    Warrant required for realtime tracking, with some kind of life-threatrening emergency carveout.

    Employer access with 3 conditions: Employer pays for the phone, notice, and the data accessible only when you're on the clock.

    I think that all sounds (none / 0) (#10)
    by jccamp on Wed Jul 02, 2008 at 08:31:37 PM EST
    eminently sensible. And remember, a life-threatening situation is probably exigent circumstances allowing a warrantless track, subject to post-track judicial review and approval, just like any other 4th Amendment-governed search.

    Local Police (5.00 / 1) (#5)
    by Ben Masel on Wed Jul 02, 2008 at 08:17:40 PM EST
    my source at a major metropolitan PD indicates they've an informal understanding with the telcos that the  data is turned over voluntarily, but only requested for murders and kidnappings. The telcos don't want to have their employees spend megahours on, for example, drug investigations.

    The Feds, however, might have password access to the telco computers which would enable them to pluck the data without the time commitment from the telcos.

    What about missing persons? (none / 0) (#8)
    by nycstray on Wed Jul 02, 2008 at 08:30:49 PM EST
    Not mentioned. (none / 0) (#15)
    by Ben Masel on Wed Jul 02, 2008 at 08:43:44 PM EST
    The Dog has been going visiting (5.00 / 1) (#20)
    by Fabian on Wed Jul 02, 2008 at 11:49:45 PM EST
    again.  (aka taking himself for walks)  Now I have to figure out why the new wireless restraint collar isn't working.  Or maybe the dog isn't working?

    Perhaps I should just clip a cell phone to his collar and call the FBI the next time he wanders out of the yard.  "Hey, could you tell me where my do- er, cell phone is?".

    Well Yeah (none / 0) (#1)
    by squeaky on Wed Jul 02, 2008 at 06:53:44 PM EST
    It should come as no surprise that the feds required that the cell phone companies have to install  a gps tracking chip in all phones.  No one thought that they were not going to use it.

    When the ability to track cell phone locations (none / 0) (#2)
    by jccamp on Wed Jul 02, 2008 at 07:00:56 PM EST
    first became available to law enforcement, the attitude was that subscriber location (via signals to cell towers which could be identified) was not a 4th Amendment search. However, we quickly decided to be cautious and obtained orders allowing the tracking. Remember that some of the first tracks involved criminal acts, like kidnappings or robberies, in which a suspect may not have had an expectation of privacy as to his location. For example, if an armed robber stole your cell phone, he probably did not have any standing to challenge a track on that phone. Or if a kidnapping victim's phone was tracked, we could probably assume consent.

    I do not think that would be the case if a person's own cell phone was tracked without permission or judicial approval. However, since some companies are now advertising GPS service which can be shared or queried by others, maybe that is open to debate.

    I assume this is an area where the law is evolving.  i'd be interested in the debate.

    A technical question (none / 0) (#6)
    by caseyOR on Wed Jul 02, 2008 at 08:23:20 PM EST
    Does a cell phone have to be turned ON for the GPS tracking to work?

    No. (none / 0) (#7)
    by Ben Masel on Wed Jul 02, 2008 at 08:30:04 PM EST
    Even when 'off' it's periodically emitting a short burst to tell the system which tower(s) to use for your incoming calls. it's this burst which is used to locate you. Pull the battery to secure your location.

    what if (none / 0) (#19)
    by DFLer on Wed Jul 02, 2008 at 10:40:16 PM EST
    you remove the battery?

    That will do it. (none / 0) (#21)
    by Ben Masel on Thu Jul 03, 2008 at 12:43:42 AM EST
    McCain and Obama on location privacy (none / 0) (#12)
    by Ben Masel on Wed Jul 02, 2008 at 08:38:51 PM EST
    I asked official Canpaign surrogates appearing at a "New Presidents Tech Policy" panel at the Conference on Computers, Freedom and Privacy about their positions on location privacy.

    Danny Wizener for Obama: No position from campaign. Court rulings in different have varied. His own opinion, we should not shut tracking, but need oversight, wait for the courts before legislating. Chuck Fish for McCain, concurred.

    (This was the same panel at which Fish suggested McCain now opposed tello amnesty, a statement since disavowed. Sitting with him over box lunch afterwards, he told me he'd been a last-minute replacement for McCain's other tech guy, and had not been extensively briefed.)


    My liveblog of the panel (none / 0) (#13)
    by Ben Masel on Wed Jul 02, 2008 at 08:42:16 PM EST
    I hope so (none / 0) (#14)
    by Edgar08 on Wed Jul 02, 2008 at 08:42:18 PM EST
    I might get lost.

    Ben: can you speak to this? (none / 0) (#25)
    by DFLer on Thu Jul 03, 2008 at 07:50:11 AM EST
    What about the gpses installed in new cars, not just the subscription kind. Is that true?

    Or am I thinking of the so-called black box, placed to help determine speed, direction etc. after an accident?


    3d party business record (none / 0) (#27)
    by Ben Masel on Thu Jul 03, 2008 at 12:20:28 PM EST
    hence reachable with National Security letter, or voluntary co-operation from the system's operator.

    The wiretapping capability, however, was found not covered under CALEA. (The voic e channel can be turned on remotely, but this disables the normal map etc. functions by hogging the bandwidth.)


    thanks (none / 0) (#31)
    by DFLer on Thu Jul 03, 2008 at 01:49:48 PM EST
    ot....Can your phone be listened too..... (none / 0) (#26)
    by Kefa on Thu Jul 03, 2008 at 10:07:19 AM EST
    ..even if you have it turned off....now that is a question for you to have answered.

    Technically yes. (none / 0) (#28)
    by Ben Masel on Thu Jul 03, 2008 at 12:21:35 PM EST
    But legally a much higher threshold than location tracking.

    Data's searchable 2 ways. (none / 0) (#29)
    by Ben Masel on Thu Jul 03, 2008 at 12:24:26 PM EST
    They can either trace the route of a given phone, or, alternately, search for all phones to enter a given area. For example, "Give me everyone who's been to the firing range in the last 6 months."