[Infowarrior] - Cellphone Tracking Granted Without Probable Cause

[Richard Forno]

Cellphone Tracking Powers on Request
Secret Warrants Granted Without Probable Cause

By Ellen Nakashima
Washington Post Staff Writer
Friday, November 23, 2007; A01

http://www.washingtonpost.com/wp-dyn/content/article/2007/11/22/AR2007112201
444_pf.html

Federal officials are routinely asking courts to order cellphone companies
to furnish real-time tracking data so they can pinpoint the whereabouts of
drug traffickers, fugitives and other criminal suspects, according to judges
and industry lawyers.

In some cases, judges have granted the requests without requiring the
government to demonstrate that there is probable cause to believe that a
crime is taking place or that the inquiry will yield evidence of a crime.
Privacy advocates fear such a practice may expose average Americans to a new
level of government scrutiny of their daily lives.

Such requests run counter to the Justice Department's internal
recommendation that federal prosecutors seek warrants based on probable
cause to obtain precise location data in private areas. The requests and
orders are sealed at the government's request, so it is difficult to know
how often the orders are issued or denied.

The issue is taking on greater relevance as wireless carriers are racing to
offer sleek services that allow cellphone users to know with the touch of a
button where their friends or families are. The companies are hoping to
recoup investments they have made to meet a federal mandate to provide
enhanced 911 (E911) location tracking. Sprint Nextel, for instance, boasts
that its "loopt" service even sends an alert when a friend is near, "putting
an end to missed connections in the mall, at the movies or around town."

With Verizon's Chaperone service, parents can set up a "geofence" around,
say, a few city blocks and receive an automatic text message if their child,
holding the cellphone, travels outside that area.

"Most people don't realize it, but they're carrying a tracking device in
their pocket," said Kevin Bankston of the privacy advocacy group Electronic
Frontier Foundation. "Cellphones can reveal very precise information about
your location, and yet legal protections are very much up in the air."

In a stinging opinion this month, a federal judge in Texas denied a request
by a Drug Enforcement Administration agent for data that would identify a
drug trafficker's phone location by using the carrier's E911 tracking
capability. E911 tracking systems read signals sent to satellites from a
phone's Global Positioning System (GPS) chip or triangulated radio signals
sent from phones to cell towers. Magistrate Judge Brian L. Owsley, of the
Corpus Christi division of the Southern District of Texas, said the agent's
affidavit failed to focus on "specifics necessary to establish probable
cause, such as relevant dates, names and places."

Owsley decided to publish his opinion, which explained that the agent failed
to provide "sufficient specific information to support the assertion" that
the phone was being used in "criminal" activity. Instead, Owsley wrote, the
agent simply alleged that the subject trafficked in narcotics and used the
phone to do so. The agent stated that the DEA had " 'identified' or
'determined' certain matters," Owsley wrote, but "these identifications,
determinations or revelations are not facts, but simply conclusions by the
agency."

Instead of seeking warrants based on probable cause, some federal
prosecutors are applying for orders based on a standard lower than probable
cause derived from two statutes: the Stored Communications Act and the Pen
Register Statute, according to judges and industry lawyers. The orders are
typically issued by magistrate judges in U.S. district courts, who often
handle applications for search warrants.

In one case last month in a southwestern state, an FBI agent obtained
precise location data with a court order based on the lower standard, citing
"specific and articulable facts" showing reasonable grounds to believe the
data are "relevant to an ongoing criminal investigation," said Al Gidari, a
partner at Perkins Coie in Seattle, who reviews data requests for carriers.

Another magistrate judge, who has denied about a dozen such requests in the
past six months, said some agents attach affidavits to their applications
that merely assert that the evidence offered is "consistent with the
probable cause standard" of Rule 41 of the Federal Rules of Criminal
Procedure. The judge spoke on condition of anonymity because of the
sensitivity of the issue.

"Law enforcement routinely now requests carriers to continuously 'ping'
wireless devices of suspects to locate them when a call is not being made .
. . so law enforcement can triangulate the precise location of a device and
[seek] the location of all associates communicating with a target," wrote
Christopher Guttman-McCabe, vice president of regulatory affairs for CTIA --
the Wireless Association, in a July comment to the Federal Communications
Commission. He said the "lack of a consistent legal standard for tracking a
user's location has made it difficult for carriers to comply" with law
enforcement agencies' demands.

Gidari, who also represents CTIA, said he has never seen such a request that
was based on probable cause.

Justice Department spokesman Dean Boyd said field attorneys should follow
the department's policy. "We strongly recommend that prosecutors in the
field obtain a warrant based on probable cause" to get location data "in a
private area not accessible to the public," he said. "When we become aware
of situations where this has not occurred, we contact the field office and
discuss the matter."

The phone data can home in on a target to within about 30 feet, experts
said.

Federal agents used exact real-time data in October 2006 to track a serial
killer in Florida who was linked to at least six murders in four states,
including that of a University of Virginia graduate student, whose body was
found along the Blue Ridge Parkway. The killer died in a police shooting in
Florida as he was attempting to flee.

"Law enforcement has absolutely no interest in tracking the locations of
law-abiding citizens. None whatsoever," Boyd said. "What we're doing is
going through the courts to lawfully obtain data that will help us locate
criminal targets, sometimes in cases where lives are literally hanging in
the balance, such as a child abduction or serial murderer on the loose."

In many cases, orders are being issued for cell-tower site data, which are
less precise than the data derived from E911 signals. While the E911
technology could possibly tell officers what building a suspect was in,
cell-tower site data give an area that could range from about three to 300
square miles.

Since 2005, federal magistrate judges in at least 17 cases have denied
federal requests for the less-precise cellphone tracking data absent a
demonstration of probable cause that a crime is being committed. Some went
out of their way to issue published opinions in these otherwise sealed
cases.

"Permitting surreptitious conversion of a cellphone into a tracking device
without probable cause raises serious Fourth Amendment concerns especially
when the phone is in a house or other place where privacy is reasonably
expected," said Judge Stephen William Smith of the Southern District of
Texas, whose 2005 opinion on the matter was among the first published.

But judges in a majority of districts have ruled otherwise on this issue,
Boyd said. Shortly after Smith issued his decision, a magistrate judge in
the same district approved a federal request for cell-tower data without
requiring probable cause. And in December 2005, Magistrate Judge Gabriel W.
Gorenstein of the Southern District of New York, approving a request for
cell-site data, wrote that because the government did not install the
"tracking device" and the user chose to carry the phone and permit
transmission of its information to a carrier, no warrant was needed.

These judges are issuing orders based on the lower standard, requiring a
showing of "specific and articulable facts" showing reasonable grounds to
believe the data will be "relevant and material" to a criminal
investigation.

Boyd said the government believes this standard is sufficient for cell-site
data. "This type of location information, which even in the best case only
narrows a suspect's location to an area of several city blocks, is routinely
generated, used and retained by wireless carriers in the normal course of
business," he said.

The trend's secrecy is troubling, privacy advocates said. No government body
tracks the number of cellphone location orders sought or obtained.
Congressional oversight in this area is lacking, they said. And precise
location data will be easier to get if the Federal Communication Commission
adopts a Justice Department proposal to make the most detailed GPS data
available automatically.

Often, Gidari said, federal agents tell a carrier they need real-time
tracking data in an emergency but fail to follow up with the required court
approval. Justice Department officials said to the best of their knowledge,
agents are obtaining court approval unless the carriersprovide the data
voluntarily.

To guard against abuse, Congress should require comprehensive reporting to
the court and to Congress about how and how often the emergency authority is
used, said John Morris, senior counsel for the Center for Democracy and
Technology.

Staff researcher Richard Drezen contributed to this report.