Nine major cell phone carriers have responded
to a congressman's request for reports about law enforcement surveillance of cell texts and location information. The results—1.3 million demands for subscriber information— surprised even the congressman. Eric Lichtblau reports:
“I never expected it to be this massive,” said Representative Edward J. Markey, a Massachusetts Democrat who requested the reports from nine carriers, including AT&T, Sprint, T-Mobile and Verizon, in response to an article in April in The New York Times on law enforcement’s expanded use of cell tracking. Mr. Markey, who is the co-chairman of the Bipartisan Congressional Privacy Caucus, made the carriers’ responses available to The Times.
While the cell companies did not break down the types of law enforcement agencies collecting the data, they made clear that the widened cell surveillance cut across all levels of government — from run-of-the-mill street crimes handled by local police departments to financial crimes and intelligence investigations at the state and federal levels.
Much of this is done with little or no court oversight. Which, surprise, opens the doors for abuse as massive as the demands for information.
The documents can all be seen here.
In answering a short series of written questions, carriers referenced the statutes under which they have responded to government demands and also pointed out that for some matters the law is quite unclear or even non-existent. For instance, Sprint notes in its response that "There is no statute that directly addresses the provision of location data of a mobile device to the government."
Among other things, Sprint reported:
Over the past five years, Sprint has received approxmiately 52,029 court orders for wiretaps; 77,519 court orders for installation of a pen register/trap and trace device; and 196,434 court orders for location information. These court orders were issued by a variety of federal and state courts at the request of hundreds of different federal and state law enforcement agencies. Over this same time frame, Sprint received subpoenas from law enforcement agencies requesting basic subscriber information. Each subpoena typically requested subscriber information on multiple subscribers and last year alone we estimate that Sprint received approximately 500,000 subpoenas from law enforcement. Determining how Sprint responded to each of these legal demands would require a manual process of reviewing each demand and what was provided in response — an objection, a rejection, information, etc. — and comparing that response with what was originally requested by the law enforcement agency. Unfortunately, Sprint does not have the resources to research each of these many legal demands.
Ah yes. As the American Civil Liberties Union has noted, there is no tracking of what carriers are doing for law enforcement agencies. And not much by the carriers themselves beyond raw numbers. We don't know if probable-cause standards are being applied or not. A recent Supreme Court case, US v. Jones
, decided in favor of the Fourth Amendment, stating that placing a GPS device on a suspect's care requires a court warrant. Experts are divided on how much this might also apply to cell phones, more and more of which have GPS tracking capability.
The ACLU notes that in response to its request for more information from the federal government about how often cell phone subscriber information is sought and obtained, it was told:
The Department [of Justice] does not maintain records for ordinary criminal investigations of the total number of requests for location information or the total number of requests with which carriers complied. The Department also does not comprehensively track cost information from wireless carriers.
The reports Markey has obtained cracks open the door at little. What it indicates, as critics have maintained, is runaway surveillance, some of which, almost certainly, constitutes abuse. How much can only be determined by digging deeper.