Cellphones, Police, Privacy, Technology

Judges Are Getting Concerned About ‘Undeniably Creative’ Warrantless Cell Phone Tracking

There has been justifiably a lot of talk over the last few days about U.S. v. Jones, and the privacy issues it raises. Our editor emeritus Kashmir Hill was fortunate enough to hear oral arguments at the Supreme Court in person, alongside top legal reporters such as Jeffrey Toobin and Adam Liptak.

But when it comes to electronically tracking people, Jones is just the tip of the iceberg. Law enforcement also often follow American citizens through their cell phones. The practice has become so widespread that some magistrate judges are reconsidering their willingness to authorize it….

Yesterday, the Wall Street Journal published a long, informative article giving context for cell phone tracking. Magistrate Judge Stephen Smith of Houston, Texas, told the Journal that federal courts alone issue 20,000 to 30,000 cell phone tracking orders annually:

Little is known about the practice because tracking requests are typically sealed from public view. While search warrants are generally delivered to people whose property is being searched, most people whose phones are targeted never learn about it. They typically find out only if they are charged with a crime and their tracking data are used as evidence against them.

The Journal identified more than 1,000 instances of cellphone tracking in several large U.S. cities last year through open-records requests and court documents. The data showed that the practice is a widely and increasingly used police tool.

The Los Angeles Police Department last year, for example, tracked 295 phones, up 35% from a year earlier, according to department records. Miami-Dade police said it tracked locations of 130 phones in 2010, up from 102 in 2009. Federal prosecutors in the Southern District of Florida, meanwhile, sought cellphone location data 189 times last year, up 8% from 2009, according to court records.

The article cites one Connecticut case where police tracked 169 phones without warrants in order to catch a bank robber. A reporter called one of the trackees, who had no other connection to the case. He had no idea the po-po had been digitally following him.

Depending on how broadly the Supreme Court rules in Jones, which deals specifically with police putting GPS tracking devices in cars, the case could affect law enforcement’s ability to warrantlessly track Americans’ cell phones. As Kash noted, the cell phone issue did come up a few times during arguments this week.

The American Civil Liberties Union finds the practice unsettling enough that yesterday it circulated a petition to the major cell phone carriers, asking them to “stop routinely collecting and storing data on their customers’ daily movements.”

Anyone with a new iPhone is unavoidably aware of Location Services, which allows your phone to creepily know exactly where you and the nearest liquor store are. It’s weird enough knowing AT&T can use that information to sell me stuff. It’s even stranger knowing that the 5-0 might be able to use it too, without me ever being aware of it.

Different jurisdictions have acquired different standards, spurred largely by magistrate judges’ actions, according to the Journal:

Magistrate Smith said he was puzzled by cellphone-tracking requests when he was new to the bench: he couldn’t find a provision in the law allowing police to track a phone for as long as 60 days without a search warrant. To learn more, he visited the U.S. Marshals surveillance operation and quizzed lawyers at cellphone companies about government requests.

Prosecutors told him they had authority to track phones with a court order by combining two portions of the 1986 law: one allows collection of historical location data; the other allows the real-time collection of cellphone calling data but not location. Taken together, the government argued that it could track a cellphone’s location without having to show probable cause.

On Oct. 14, 2005, Magistrate Smith denied a government request in an opinion that called the government’s legal theory “undeniably creative.” But “mixing and matching of statutory provisions,” he said, would create a “new form of electronic surveillance” not envisioned by the law.

Within six months, nine other magistrates also denied tracking requests, relying in part on Magistrate Smith’s reasoning. Other magistrates sided with the government, agreeing that cellphone locators weren’t precise enough to require a search warrant.

When SCOTUS rules on Jones, hopefully some of this confusion will be put to rest.

ACLU to Wireless Carriers: Stop Tracking Americans’ Movements [ACLU]
Judges Weigh Phone Tracking [Wall Street Journal]

Christopher Danzig is a writer in Oakland, California. He covers legal technology and the West Coast for Above the Law. Follow Chris on Twitter @chrisdanzig or email him at cdanzig@gmail.com. You can read more of his work at chrisdanzig.com.

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