One more reason to invest in aluminum-foil hats:
Local, state and federal law enforcement agencies use GPS data from cell phones to monitor the movements of thousands of Americans every year – almost always with no judicial oversight or requirement that they explain why such a blatant invasion of privacy could be justified, according to a survey published this morning in the Wall Street Journal.
Most people would consider that a blatant invasion of privacy and violation of the same Fourth Amendment protections against tearing up your house to search for "evidence" without explaining to a judge first what they expect to find and what evidence they have that you're guilty at all. They'd be right, usually.
Gaping holes that developed in the Electronic Communications Privacy Act of 1986 as technology outstripped the assumptions lawmakers used in writing the law leave what many law-enforcement agencies treat as a free pass.
Telephone or email records left on a public server – like those at mail.google.com – are legally considered abandoned if they've been there longer than six months, even if you're still using the account.
How could my Gmail account "abandoned?"
Police are allowed to requisition and search records "abandoned" by a suspect the same way they would be allowed to search trash bags you put out by the curb – all without a warrant.
Telephone usage and location records should also be protected. It should also be illegal for police to attach GPS tracking devices to the cars of people they want to track, but aren't suspicious enough to get a warrant to do it.
It may be, but not explicitly enough to enforce without some clarification.
Yesterday the Supreme Court heard the case of Antoine Jones, a Washington, D.C. nightclub owner who was convicted on a drug charge partially based on evidence from a GPS unit police secretly attached to his wife's car for a month.
Secretly tagging someone with a GPS with no warrant seems like a pretty clear-cut violation, just as it would be to use a device that collected audio data rather than location.
The law on records from all those cell phones is more confused – by the Patriot Act and various extensions, exceptions and let's-ignore-the-law decisions by various federal agencies in both the Bush and Obama administrations in the years since the 9/11 terrorist attacks.
The WSJ used court records and open-documents requests to document more than 1,000 instances of police tracking cell-phone data last year – records that show rapid growth in the number of examples.
The LAPD tracked 295 phones last year, for example. That's 35 percent more than 2009, the Journal reports. Miami-Dade police increased their tracking by 27 percent. Federal prosecutors in the Southern District of Florida used cell tracking 8 percent more often in 2010 than 2009.
Honestly, how many people could they be watching? 50? 100? 200?
There are 327 million cell phones in use in the U.S.
Cell phone carriers get an "astronomical" number of requests from police for customer phone records according the WSJ's citation of testimony given by cell-phone-company lawyer Al Gidari to the House Judiciary Committee last year.
There are more than 10,000 police agencies with subpoena power, all interested in getting phone records to help in investigations, he said. Of all the telecommunications service companies, only Google admits how many requests it gets for user records.
It's not unusual for carriers to receive a new request that a phone be tracked every 15 minutes, according to Gidari, who also lectures on location privacy.
The volume of user information collected by government is astonishing, but largely unreported. Only Google publicly reports the number of governmental requests it receives," Gidari testified. "The number of requests Google receives is dwarfed by the number of requests wireless carriers receive each year." (Here's a PDF of his whole statement.)
2nd Half 2009
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1st Half 2011
If you've got nothing to hide…just agree to be harassed and have all your personal choices questioned.
One reason for Fourth Amendment limits on search and seizure is so police don't use random searches for harassment, or to go on fishing expeditions hoping to catch someone they don't like with incriminating evidence.
Federal judges don't like warrantless evidence
Even federal judges are becoming increasingly vocal in their opposition to warrantless data-gathering techniques they often refer to as "fishing expeditions" by law enforcement agencies hoping to make a case without any evidence a crime has been committed.
In March , 2010 a federal judge ruled the White House and FBI had broken several very significant chunks of law (not just one regulation) during its secret, three-year-long surveillance of the Islamic charity al-Haramain.
Though the Bush and then Obama administrations tried to claim the surveillance was justified under a "Terrorist Surveillance Policy" didn't keep the spying from violating the Foreigh Intelligence Surveillance Act as well as the Fourth Amendment and Electronic Privacy Act according to the decision March 31, 2010 by U.S. District Court Chief Judge Vaughn Walker.
(The surveillance turned up no evidence of any crime, so it would have stayed a secret if the FBI hadn't accidentally faxed surveillance records to al-Haramain rather than to someone more official.)
U.C. Berkeley Ph.D. candidate Stephen Rushin is collecting similar decisions and negative reactions from federal and state judges as part of a thesis concluding the increasingly efficient methods of surveillance of modern law enforcement agencies, the enormous volumes of private data they collect adn the lack of controls over what is collected and what is done with the information pose more than an inconvenience or minor threat to individuals.
It poses a critical threat to the foundation of individual freedoms guaranteed under the Constitution.
Except, law-enforcement officers don't go "fishing," for evidence, defenders of the Patriot Act and other rule-loosening policies claim.
Law enforcement agencies simply use the tools available to them to gather information in the same way they always did, by tracking individual suspects and observing their behavior. The only difference is that they have to observe behavior in the digital world as well as the physical.
Their investigations, law enforcement agencies say, are just as respectful of the Constitution and individual rights as ever.
Isn't 'Don't need permission' the same as 'Don't obey rules?'
Take this as a counter to pollyanna's version:
According to testimony by Gidari – who represented Google and other carriers and was arguing for clear rules under which carriers do or do not have to give up records – even the Department of Justice doesn't regularly report the number of "pen register orders" they file with carriers.
Pen registers are monitors that record all the outgoing calls from a phone; "trap and trace" monitors collect all the inbound calls.
Pen register orders typically last 60 days.
In two months, even a dedicated felon will call a large number of people completely uninvolved with any criminal activity, even if all he's doing is ordering pizza or calling MoviFone.
The FBI doesn't go on fishing expeditions; it boils the sea and collects what floats
Rather than sifting through those lists to verify who the theoretical felon is calling, investigators often just sent every phone number they get to every carrier they think might own it and ask for every record related to that number.
"The pen register yields a list of numbers, and law enforcement agents routinely send that list to every carrier that might possibly provide service, demanding production of any records for any number that belongs to that carrier," Gidari testified. "Thus, a single pen register order can result in the disclosure of hundreds of individual customer phone records. Likewise, a single grand jury subpoena may list dozens of accounts for which subscriber information is sought. "
This kind of offensive nonsense is a probable-cause-justified investigation in the same way dropping a bomb-load from a B-52 into a pond is to fishing.
You will certainly kill some fish, but good luck finding anything worth keeping in the giant pile of slime that's left.
Plus, if anyone owned the pond, or even if the fish themselves had the right not to be randomly slaughtered, you probably violated that by atomizing them, their families, their whole environment and any other animals that depend on a pond to be anything but a deep hole with a bottom made of smoking mud.
"Your honor, I object to being strip-searched on the street for the crime of having annoyed someone"
The Supreme Court heard arguments yesterday on just one narrow slice of this particular piece of rotten fish-scrap pie.
Civil libertarians are hoping its judgment will put limits on the government's ability to bug your ride and subpoena your phone records solely because a felon dialed you by mistake, or you inherited your digits from the pizza guy he used before doing a stretch in prison.
This is a Supreme Court that declared that corporations are people for the purposes of giving campaign donations.
It also decided, very specifically, that these giant, impersonal "people" – which are forced by rules of fiduciary responsibility to behave in ways we would consider psychotically selfish and exploitive if they actually were people – should not be limited in their ability to bribe lawmakers with huge campaign contributions to pass laws that favor corporations at the expense of the humans lawmakers are elected to represent.
So there's a good chance the Court will decide it's just fine if the Law secretly keeps track of your location, whether they use a GPS bug or your phone records to do it.
It already requires carriers to tell on you for no legal reason and can punish them severely if they mention to you that a podunk sheriff in a county you "lived" in for two weeks on a work assignment three years ago subpoenaed all your phone records from then until now because a drug dealer stayed in the same hotel room a year earlier.
We may end up counting ourselves lucky to have the Fourth Amendment dissected even to that degree, in fact.
Think how much worse it would be if it turned out all that surveillance is costing the government so much money that the only logical solution is to require every cell phone user to mail in a transcript of every phone call, text message or email exchange at the end of every month, just to save police the trouble.
It would be a lot more work for customers, of course.
In terms of the rights police want over records of your private activities and friendships, it's not that big a step.