The government isn't just content with eavesdropping on your telephone conversations, they also want to
track your physical location via your cell phone as well.
Via the
Electronic Frontier Foundation:
Yesterday [December 20, 2005], Magistrate Judge Gorenstein of the federal court for the Southern District of New York issued an opinion permitting the government to use cell site data to track a cell phone's physical location, without the government having to obtain a search warrant based on probable cause.
Judge Gorenstein's flawed legal analysis is in sharp contrast to three other federal court opinions strongly rejecting the government's legal arguments, including a decision by Magistrate Judge Orenstein in the Eastern District of New York. While Judge Orenstein referred to the government's legal arguments variously as "unsupported," "misleading," and "contrived," and a Texas court called the convolutions of the government's theory "perverse" and likened its twists and turns to a "three-rail bank shot," Judge Gorenstein bought the government's arguments hook, line and sinker.
Unfortunately, this dangerous new opinion falls into a procedural black hole. Because the DOJ is the only party in these surveillance cases, there's no one left to appeal the decision. Meanwhile, the DOJ has refused to appeal all three times it has lost, despite emphatic requests by the Texas and Eastern District magistrates. The result is that other magistrates across the country won't get clear guidance from the appeals courts on this issue.
Let's get this straight. In three separate attempts, in three separate federal courts (different regions), the government tried to get legal permission to track a cell phone's physical location without having to obtain a search warrant. All three times the government failed.
Now Judge Gorenstein in the Southern District of New York has finally given the government what it wanted - permission to track phones without a warrant.
You can read the Judge's ruling here (PDF). After reading through it, one of the reasons Gorenstein grants the government the right to do this is because of the Patriot Act.
The issue concerns something called a pen register. Prior to the Patriot Act, it was defined as an electronic device that records all numbers dialed from a telephone. The Patriot Act added language which said a pen register can also track "signalling information" sent by the telephone, which Gorenstein interpreted as meaning the information that cell phones send to, and receive from, the cellular towers.
It should be noted here that any cell phone that is ON, regardless of whether or not it is being used (or you're talking on it) is regularly transmitting and receiving signals from the tower. Your cell phone provider can then track and record these signals, giving it the ability to track your approximate location at any time, which can then be turned over to the government upon request.
Prior to Gorenstein's ruling, it was still fairly easy to get a pen register:
Notably, the showing required to install a pen register is a low one: the Government need only identify the law enforcement agency conducting the investigation and certify that the information likely to be obtained is "relevant to an ongoing criminal investigation" being conducted by the agency. 18 U.S.C. § 3122(b)(1), (2). Orders requiring the installation of a pen register may not exceed 60 days, though they may be extended for additional 60-day periods if the required showing is made. 18 U.S.C. § 3123(c). In certain emergency situations, a pen register may be installed even in the absence of a court order. 18 U.S.C. § 3125.
What makes this even more ominous is that the "tracking" information available from your cell phone provider can be obtained without a warrant. Gorenstein explains that:
Here, however, the Government does not seek to install the "tracking device": the individual has chosen to carry a device and to permit transmission of its information to a third party, the carrier.
Gorenstein says that the government isn't violating the 4th Amendment because it wants tracking/location information only when a telephone call is made/received. However the isthmus between location data only during calls and the entirety of the cell phone company's records of where your phone was is pretty darn thin.
Therefore Gorenstein's ruling says the government does have to get a warrant to put a "pen register" on your phone and record all your calls, but can get information about you where your cell phone is (and presumably YOU as well) without a warrant.
What makes this entire thing ominous is that the ruling was not part of a trial, therefore there is no defendant to appeal the issue.
One other website has been following this ruling:
The DOJ revealed an attitude that a court order is not needed in the brief submitted by Assistant U.S. Attorney Thomas Brown: "A cell phone user voluntarily transmits a signal to the cell phone company, and thereby 'assumes the risk' that the cell phone provider will reveal to law enforcement the cell-site information."
Legitimate needs for tracking have been used by commercial vendors and government agencies to justify monitoring of all consumers with a cell phone. The checks and balances put in place to protect individual privacy, such as court orders, are in jeopardy by blanket use of tracking systems that have no accountability, according to government watchdog groups and privacy advocates.
National Engineering Technology Corporation (NET) is actively negotiating with various state department of transportation agencies to track cell phone users, without their permission. The data will be used to study traffic flow and provide information to various systems and third parties to notify drivers of ways to avoid traffic congestion.
How accurate is the tracking information that the cell phone company can provide? Right now it looks like it isn't too accurate, perhaps within 50 yards or so, depending on whether you're in an urban or rural environment.
That may be changing soon. When you call 911 from a home phone, the emergency dispatchers get your address information automatically as the landline telephone company is required to provide this information by law. The government (via the FCC) is working on mandating the installation of a GPS antenna into all new cell phones so that their location information can be transmitted to emergency services as well.
Already some phones in America have this technology, although most of them supposedly have a way to turn this feature off.
There are private companies, such as Ulocate, which will work with you to install software on your phone and let you track yourself. They say that nobody else (such as another company) will get access to the data, but clearly the federal government can.
That being said, you can already track a cell phone all by yourself if you've got a little engineering know-how. The plans are easily found on the internet.
You can read about the FCC's rules for wireless (cell phone) E911 requirements, which will require cell phone companies to provide location information "from within 50 to 300 meters". FCC's news/info website on this here.
These requirements, part of Phase II, are still in the process of being implemented. But now the government has a federal court ruling which will come in extremely handy once accurate cell phone tracking becomes commonplace nationwide.
Crossposted from Flogging the Simian
Peace