December 10, 2005

They don't need to plant a tracking device on you.

Your cellphone is a tracking device. You planted it on yourself.
The government has routinely used records of cellphone calls and caller locations to show where a suspect was at a particular time, with access to those records obtainable under a lower legal standard. (Wireless operators keep cellphone location records for varying lengths of time, from several months to years.)...

Prosecutors, while acknowledging that they have to get a court order before obtaining real-time cell-site data, argue that the relevant standard is found in a 1994 amendment to the 1986 Stored Communications Act, a law that governs some aspects of cellphone surveillance.

The standard calls for the government to show "specific and articulable facts" that demonstrate that the records sought are "relevant and material to an ongoing investigation" - a standard lower than the probable-cause hurdle.

The magistrate judges, however, ruled that surveillance by cellphone - because it acts like an electronic tracking device that can follow people into homes and other personal spaces - must meet the same high legal standard required to obtain a search warrant to enter private places.

"Permitting surreptitious conversion of a cellphone into a tracking device without probable cause raises serious Fourth Amendment concerns, especially when the phone is monitored in the home or other places where privacy is reasonably expected," wrote Stephen W. Smith, a magistrate in Federal District Court in the Southern District of Texas, in his ruling.

"The distinction between cell site data and information gathered by a tracking device has practically vanished," wrote Judge Smith. He added that when a phone is monitored, the process is usually "unknown to the phone users, who may not even be on the phone."
Very interesting and important.

7 comments:

John Jenkins said...

While you have an expectation of privacy in your home, do you have an expectation of people not knowing that you are in the home? That is, if the information is about where you are (in the home, at the mall, etc.) which the police could readily have just by showing up in the neighborhood is there really a privacy interest in that information?

How is this different from the pen register? The phone tells the phone company where the phone is so you've revealed the information to a third party, and therefore no longer have a reasonable expectation of privacy.

I'm not sure the magistrates are applying the proper legal standard (though I'm not arguing that the correct standard is the *right* standard).

AJD said...

Did someone put a gun to your head and force you to get a cell phone?

I have a simple answer: decline to own the devilish device.

Jake said...

What legal authorization do the police need to follow someone? The same legal authorization should be used for deciding whether cellphone or gps tracking should be used.

This analogy is exactly on point. One hundred years ago, the police followed people on horseback. Then the car was invented. Do the police need a more restrictive standard because they are using cars to follow people?

Joe Baby said...

Could be a good cause for the ACLU once they're done sanitizing the pledge etc.

reader_iam said...

Interesting also to consider this in context of FCC E911 rules, which "requires wireless carriers to provide far more precise location information, within 50 to 300 meters in most cases." Meaning, even if you wanted to "opt out" of having tracking ability within your phone--which was "sold" as primarily 911-related--you won't be able too, at least with new cell phones.

(Then there are the regs relating to VoIP ...)

Of course, there's anti-sheck's option, quite a respectable one, but for many (most?) of us cell phone users, that horse is already out of the barn.

Steven Den Beste said...

Before implementation of E911, cell phone companies' ability to place you when you make a call was not as exact as you might think. Generally in a city it would mean they could place you to within about a mile or so. (Specifically, they knew which sector of which cell you were in.)

E911 gives them the ability to determine your location pretty much exactly, but it isn't automatic. The cell has to send a specific message to the phone to cause it to do a GPS fix and to transmit that information back to the cell. I don't believe that can be done without the cell phone user knowing about it, because it requires opening a traffic channel, which makes the phone ring.

(At the very least, you can tell that they're doing it to you because it's going to run the battery down in your phone if they do it very often.)

Bruce Hayden said...

As I understand it, all new cell phones need to have the GPS feature. Apparently, you can't hook up a non-GPS phone to a cell system anymore, though they let you keep running with your older phones as long as you can.

Theoretically, most GPS phones have two modes: one strickly for 911, and the second also lets other services utilize your GPS location. I assume though that the police would be using the 911 service, so disabling the extended service won't presumably help.

However, this feature is not really being used that much outside 911. Two days ago, I lost my brand new Pocket PC phone. I had just enabled the GPS function the day before, and knew that it still had power, because it would ring, and ring, and ring (they screwed up voice mail too). But Qwest, my cell provider, couldn't track the phone.

Interesting, that they can provide it for 911 service, and not for their own customers. I would think that this would be a good business feature. Maybe I should get a patent on cell subscribers utilizing their GPS info to find their phones... (just joking about the patent).