Monday, November 26, 2007

Cell Phones As Tracking Devices And How 4th Amendment Rights Are Being Abused

The Washington Post presented a very interesting piece this past Friday (11/23/07) entitled Cellphone Tracking Powers on Request- Secret Warrants Granted Without Probable Cause.(By Ellen Nakashima, Staff Writer, with contributions by Richard Drezen, Staff Researcher)
The report said:
"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.""
While tracking is something one might want to do with regard to criminals, it is very disturbing that someone can be tracked, or the data used to track them can be obtained, without probable cause. The report further stated that
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.


"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.
Thankfully, some judges are writing some very strong opinions about this, although they are being met with some opposition.
"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.
Clearly something needs to be done - some policy changes in law enforcement or elsewhere - to guard against abuses and to protect our Fourth Amendment Rights. Yes, even criminals have Constitutional rights, and wouldn't they win an appeals case if it is shown that their rights have been violated in some way? They could feasibly walk on that "technicality". Aside from the law enforcement issue in regard to catching the "bad guys", I sure would like to see that our rights are preserved.

The Fourth Amendment states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
In this day and age of technology we must not forget how easily certain technology can be used (or mis-used) and in the process our rights can be violated. In seems that it is all too easy for "protection of the public" and the "violation of the public's rights" to become very enmeshed and perhaps we should all be mindful of this quote:

"It is better, so the Fourth Amendment teaches us, that the guilty sometimes go free than the citizens be subject to easy arrest."

- Justice William O. Douglas
Source: Henry v. United States, 1959