[Infowarrior] - Justice Dept. defends warrantless cell phone tracking

[Richard Forno]

February 13, 2010 9:25 AM PST
Justice Dept. defends warrantless cell phone tracking

by Declan McCullagh

http://news.cnet.com/8301-13578_3-10453214-38.html

The FBI and other police agencies don't need to obtain a search warrant to learn the locations of Americans' cell phones, the U.S. Department of Justice told a federal appeals court in Philadelphia on Friday.

A Justice Department attorney told the Third Circuit Court of Appeals that there is no constitutional problem with obtaining records from cellular providers that can reveal the approximate locations of handheld and mobile devices. (See CNET's previous article.)

There "is no constitutional bar" to acquiring "routine business records held by a communications service provider," said Mark Eckenwiler, a senior attorney in the criminal division of the Justice Department. He added, "The government is not required to use a warrant when it uses a tracking device."

This is the first federal appeals court to address warrantless location tracking, which raises novel issues of government surveillance and whether Americans have a reasonable expectation of privacy in their--or at least their cell phones' --whereabouts.

Judge Dolores Sloviter sharply questioned Eckenwiler, saying that location data can reveal whether people "have been at a protest, or at a meeting, or at a political meeting" and that rogue governments could misuse that  information. (See transcript excerpts below.)

Just a few years ago, tracking phones was the stuff of thrillers like "Enemy of the State" or "Live Free or Die Hard." Now, even though police are tapping into the locations of mobile phones thousands of times a year, the legal ground rules remain unclear, and federal privacy laws written a generation ago are ambiguous at best.

"When the government acquires historical cell location information, it effectively commandeers our cell phones and turns them into electronic trackers that report, without our knowledge or consent, where we have been and how long we have spent there," Susan Freiwald, a law professor at the University of San Francisco, told the court on Friday. "We should be able to use our cell phones without them creating a virtual map of our every movement and association."

Freiwald, the ACLU, the Electronic Frontier Foundation, and the Center for Democracy and Technology filed briefs saying that the U.S. Constitution's Fourth Amendment provides Americans with at least some privacy protections that shield their whereabouts from police not armed with search warrants. The civil liberties groups also said that current law gives judges the flexibility to require search warrants based on probable cause.

EFF attorney Jennifer Granick said one possibility is for the Third Circuit to order the district judge to hold hearings to learn the more about the technology of cell tracking, including how accurately stored records can pinpoint the location of a phone. The judges "had a lot of factual questions about accuracy that haven't been answered," Granick said after the hearing.

Besides Sloviter, the other judges on the panel are Atsushi Tashima, who is visiting from the Ninth Circuit, and Jane Roth, who was not present on Friday but is expected to review the transcript.

The Bureau of Alcohol, Tobacco, Firearms and Explosives is asking the court for an order divulging historical (meaning stored, not future) phone location information because a set of suspects "use their wireless telephones to arrange meetings and transactions in furtherance of their drug trafficking activities." It's unclear how detailed this stored information is; there's some evidence that the FBI can use it to narrow down the location to a city block but perhaps not an individual house.

The Obama administration argues that no search warrant is necessary; it says what's needed is only a 2703(d) order, which requires law enforcement to show that the records are "relevant and material to an ongoing criminal investigation." Because that standard is easier to meet than that of a search warrant, it is less privacy-protective.

Cell phone tracking comes in two forms: police obtaining retrospective historical data kept by mobile providers for their own billing purposes that is typically not very detailed, or prospective tracking--which CNET was the first to report in a 2005 article--that reveals the minute-by-minute location of a handset or mobile device.

Tracking cell phones can be useful for law enforcement. Agents from the Drug Enforcement Administration in Arizona tracked a tractor trailer with a drug shipment through a GPS-equipped Nextel phone owned by the suspect. Texas DEA agents have used cell site information in real time to locate a Chrysler 300M driving from Rio Grande City to a ranch about 50 miles away. Verizon Wireless and T-Mobile logs showing the location of mobile phones at the time calls were placed became evidence in a Los Angeles murder trial.

The civil liberties say they're not opposed to the government obtaining that information for legitimate purposes -- as long as the Fourth Amendment and federal privacy laws are being followed. This is, said Freiwald "a truly novel technology that can invade the privacy of all Americans who carry cell phones in their pockets or purses."

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http://news.cnet.com/8301-13578_3-10453214-38.html