The Washington Post says that the feds are asking for – and getting – real-time location tracking data about ordinary (non-terrorist) criminal suspects. No problem, right? Surely the Justice Department is providing evidence of probable cause to courts before obtaining this information.
Um, not necessarily.
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.
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.
Happily not all of our federal judges are blind to the privacy issues that such requests create.
“Permitting surreptitious conversion of a cell phone 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.
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.”
Even the Justice Department itself recommends using probable cause as the standard:
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.”
“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 a previous lifetime, safe from the post-9/11 Bush wiretapping frenzy, I would have said that cellular phone data should be protected by the same rules that safeguarded our land line communications.
Of course, we now know those protections to be insufficient. Perhaps it is time to demand that the old standby of probable cause, supported as always by common sense, be re-established as the law of the land.
It may already be too late. The WP says that most districts have ruled in favor of the government rather than following the Smith and Owsley rulings. Probable cause, it seems, is becoming a thing of the past as relates to law enforcement’s access to our personal information.
…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.
In regard to non-specific cell tower data, Boyd contradicts himself, saying that investigators’ use of this data is permitted:
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.
Justice Department officials said to the best of their knowledge, agents are obtaining court approval unless the carriers provide the data voluntarily.
Why are cell phone carriers’ deciding whether to turn over our data to law enforcement officials or not? Private companies are in no position to defend the public’s right to privacy against the government. Only a proper system of checks and balances can do that and the courts aren’t being consistent at this point.
The problem is only going to get worse when and if the Federal Communication Commission makes more detailed GPS data available automatically.
“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.
We do now.