Ellen Nakashima of the The Washington Post reported this weekend that U.S. 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. In many 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. 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 new services that allow cellphone users to know with the touch of a button where their friends or families are. Sprint Nextel, for instance, boasts that its "loopt" service 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 Corpus Christi federal judge in Texas denied a request by a DEA agent for data that would identify a drug trafficker's phone location by using the carrier's 911 tracking capability. Magistrate Judge Brian L. Owsley said the agent's affidavit failed to provide "specifics necessary to establish probable cause, such as relevant dates, names and places." Owsley decided to publish his opinion on the case, which would otherwise have been sealed under Bush-era terror laws. Another magistrate judge (who spoke on condition of anonymity), has denied about a dozen such requests in the past six months, saying that agents routinely attach affidavits to their applications that fail to establish probable cause.
"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 2005 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 a much 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.
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.
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