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Tilting at Windmills

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July 3, 2008
By: Kevin Drum

YOU AND YOUR CELL....All modern cell phones are equipped with GPS-like capability that allows your location to be tracked within a few meters at all times. Question: does the federal government have access to this tracking information without a warrant? The ACLU filed a Freedom of Information request to find out but the feds refused to respond. So now they've joined with the EFF and filed a lawsuit:

The ACLU filed the FOIA request in November following media reports that federal officials were using Americans' cellular phones to pinpoint their locations without a warrant or any court oversight, the groups said. Some government officials at the time said they did not need probable cause to obtain tracking information from mobile phones. In addition, the reports said some federal law enforcement agents had obtained tracking data from wireless carriers without any court oversight.

...."Signing up for cell phone services should not be synonymous with signing up to be spied on and tracked by the government," she said in a statement.

....The ACLU and EFF are seeking documents, memos, and guides regarding policies and procedures for cell-phone-based tracking of individuals. The groups also want to know the number of times the government has sought cell-phone location information without court permission and how many times it has obtained the information.

That cell phone tracking should indeed require a warrant hardly seems disputable. That the Department of Justice refuses to explain its policies hardly seems defensible. Good luck to the ACLU and the EFF.

Via TalkLeft.

Kevin Drum 1:28 AM Permalink | Trackbacks | Comments (38)

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Comments

Don't worry. Barack Conservative (his real middle name, not "Hussein") Obama will support retroactive immunity for all the cell phone companies, while Olbermann lamely defends him.

Posted by: SocraticGadfly on July 3, 2008 at 1:49 AM | PERMALINK

I agree that the government needs a warrant to track us and that information about the use of those warrants should be public.

I'm not sure the tracking is as accurate as you suggest. If the phone doesn't have an optional GPS feature they try to locate the phone by triangulating with the nearest contacted cell towers. This is how the locate feature works with Google maps on the current iPhone. In town it's pretty good, though sometimes off a. Lock or two. In the countryside it can be off by smile or two. Probably it only sees one cell tower.

This is a great idea for lost hiker's and 911 dialers. It does need judicial oversight. Too tempting to use otherwise.

Posted by: JohnK on July 3, 2008 at 1:50 AM | PERMALINK

Speaking of that, Kevin, did somebody shoot Amy Sullivan? I expected a 5,000-word bloggasm here out of her about Obama's faith-based speech Tuesday.

Posted by: SocraticGadfly on July 3, 2008 at 1:50 AM | PERMALINK

AS YOUR RIGHTS erode away, what can one do? Put that phone on a bus and ship to Cleveland? FBI wants to use profiling and arrest without warrants. What about IMPEACHMENT, lets give it a try, call Pelosi @1-202-225-0100 DEMAND IMPEACHMENT.

Posted by: Mike Meyer on July 3, 2008 at 2:31 AM | PERMALINK

Minor technical nit: is "GPS capability" really the correct term? Yes, lots of modern cellphones have GPS too, but the real issue (as I understand it) is that the location of any powered-on cellphone can be tracked via the base station network.

The basic principle is the same as for satellite based global positioning systems, albeit on a local scale?

Don't know if US based cellphone operators provide the same service but over here in Finland, some operators offer a "friend finder" service where you can request the location of your friends and relatives cellphones from the network (they will of course have to agree to release the information)

MARCU$

Posted by: MARCU$ on July 3, 2008 at 3:38 AM | PERMALINK

So is anybody asking what gives?


Is Bush holding Obama's grandmother hostage until the FISA bill is passed? Has anybody seen Nancy Pelosi's husband, or that videotaping daughter of hers lately?


Why Obama's abrupt about-face as the "Change" candidate who will square off against Washington insiders?


Doesn't anybody else find the Democrats' lock-stepping with Bush these past 7 years, and the recent half-hearted hearings, beyond a little strange? Fear of being blamed for terrorism attacks don't cut it.


What's going on?

Posted by: Sarah on July 3, 2008 at 4:16 AM | PERMALINK

Legally, this might be an interesting question. But for practical purposes, it's being done and nobody can really stop it. Any communication tower has always been required to be registered. Non-registered communications have been historically pursued with vigilance. Nobody's going to build a communications tower without the FCC having access to it or knowing about it. So they have the information to start with triangulation and then apply appropriate algorithms on the next 10 signals to get a better resolution. And let's face it, all they need is 10 meters to secure a perimeter. If all the Feds have access to is you cell phone identification (check) and signal strengths from various cell phone towers (check), they know where your cell phone is if it's on. The only thing they don't already know is whether you are carrying your cell phone. But if it's at home, they know you're either there or not carrying it. Think about that.

Posted by: fostert on July 3, 2008 at 5:29 AM | PERMALINK

The practice might be despicable, but its not indisputable that they need a warrant. A warrant is only necessary to search your zone of privacy and is not necessary to search and seize that which is in plain sight. Unless you're in your home, or perhaps the home of another, you're in the public domain.

The question is, what happens when you walk in your front door, or leave, and they know it?

Posted by: Paul in NC on July 3, 2008 at 5:34 AM | PERMALINK

"The practice might be despicable, but its not indisputable that they need a warrant. A warrant is only necessary to search your zone of privacy and is not necessary to search and seize that which is in plain sight. Unless you're in your home, or perhaps the home of another, you're in the public domain."

That's a beautiful statement of the Fourth Amendment, but does it really exist anymore? I can barley remember a time when the Supremes were willing to defend it. But I'm old now, and I was very young then.

Posted by: fostert on July 3, 2008 at 5:57 AM | PERMALINK

All modern cell phones are equipped with GPS capability that allows your location to be tracked within a few meters at all times.

FAIL.

Posted by: Alex on July 3, 2008 at 6:17 AM | PERMALINK

Welcome to the world of Big Brother! Can implantable chips be far behind?

Posted by: The Conservative Deflator on July 3, 2008 at 7:20 AM | PERMALINK

Actually, not that many modern mobile handsets have a GPS feature. All cell phones can have their position triangulated by the cell providers using tower information, and that's somewhat accurate in cities and not so good elsewhere.

Some newer phones (the new iPhone, among thers) have a feature called AGPS. Long story short, the cell providers get information from the handsets that they combine with other data to determine the position of the device more accurately. It's actually a pretty neat use of the cell network to alleviate some of the problems with GPS in urban environments/time to get a fix from cold start/etc.

Posted by: phleabo on July 3, 2008 at 7:39 AM | PERMALINK

Speaking of that, Kevin, did somebody shoot Amy Sullivan? I expected a 5,000-word bloggasm here out of her about Obama's faith-based speech Tuesday.
Posted by: SocraticGadfly on July 3, 2008 at 1:50 AM

Gadfly, admit it. You love Amy. You really love her.

Frankly, I kind of miss her too. She knows how to get us going.

Posted by: Ron Byers on July 3, 2008 at 7:50 AM | PERMALINK

I fail to see how GPS tracking would be of any use in cellphones unless there is some kind of code you'd punch in if, as in the example above, you were using 911 or were a lost hiker.

"24" fantasies to the contrary notwithstanding, there are a finite number of GPS satellites in orbit, capable of pushing a finite (though massive) amount of data. There are a finite number of GPS ground tracking stations, capable of receiving and processing a finite (though massive) amount of data, and there are zillions of claimants on the network: rental cars w/nav systems, airliners, etc.

But does the government need a warrant to track you? No.

You're already being surveilled on the freeways (Highway 101 TraffiCam), at the airport, in post offices, and in many cities (in Las Vegas, for example, you are on videotape from the moment you step off the jetway to the moment you climb back into an airplane, with the only "private" space being public restrooms).

Surveillance is neither "search" nor "seizure."

Posted by: Hemlock for Gadflies on July 3, 2008 at 7:59 AM | PERMALINK

You can bet obama is lickin' his chops to get access to this type of abuse of civil liberties - our sham constitutional "scholar" doesn't believe in the fourth ammendment either.

Posted by: on July 3, 2008 at 8:39 AM | PERMALINK

The Constitution is really just a speed bump these days. If you're willing to endure the jolt to your system as you drive over it then have at it. Sure, you might be causing a little damage each time you do it, but for now at least you get where you want to faster so what the hell.

Posted by: steve duncan on July 3, 2008 at 8:50 AM | PERMALINK

(in Las Vegas, for example, you are on videotape from the moment you step off the jetway to the moment you climb back into an airplane, with the only "private" space being public restrooms).

I'll be sure to mention that to my wife the next time we are having sex in a room at the MGM.

Posted by: e henry thripshaw on July 3, 2008 at 8:53 AM | PERMALINK

That cell phone tracking should indeed require a warrant hardly seems disputable. That the Department of Justice refuses to explain its policies hardly seems defensible.

This is one of those fill in the blank sentences, right? "That [example of how the Bushies are subverting the constitution] is indisputable. That [insert agency] refuses to explain its policies hardly seems defensible."

Posted by: anandine on July 3, 2008 at 8:58 AM | PERMALINK

Monitoring bedrooms in Las Vegas hotels is a public health measure. It encourages people to lose some weight and tone up.

Posted by: Stuart Eugene Thiel on July 3, 2008 at 9:37 AM | PERMALINK

This is just the tip of the iceberg, and the most apparently obvious type of this sort of surveillance.

Everyone who has a GM car with OnStar is also being tracked constantly (should it be decided that they need to be tracked). So is everyone with LoJack. Of course, they agree to it in the fine print of the agreements they sign to purchase the vehicles with this technology in it. Perhaps everyone with a cell phone has already agreed to be surveilled as well. Or will be required to once the new customer service agreements are updated.

All I'm saying is Big Brother has been around for a while. This should not really be surprising to anyone who has been paying attention to Putsch and the Republican't junta for the past eight years. And, hey - we shouldn't have anything to worry about if we've been doing nothing wrong. [sarcasm]I mean, it's not like Republican'ts would Cheney you over if you were a member of the Democratic Party, right?[/sarcasm]

Posted by: (: Tom :) on July 3, 2008 at 9:42 AM | PERMALINK

Ever cell phone is required by federal law to have some method of determining its location. Some cell phones use true GPS (from satellites) plus cell tower triangulation to locate themselves within a few meters, others use cell tower triangulation only which is less precise and less consistent. This location information is being generated on the phone, not in some outside network that needs to keep track of millions of phones.

The stated rationale for this is to allow E911 services to know the location of someone calling them from a cell phone. Since cell phones have no fixed address as landlines do and since callers may not know where they are when calling 911 or may not be able to describe it, this is a legitimate need. All cell phones will automatically report this location info when you dial 911.

Of course, since the information is available, it will be used in other ways as well. Most carriers offer mapping, turn-by-turn directions and other location-based services on a subscription basis. Theoretically, these are all opt-in only and most cell phones come with software switches that prevent location information from being reported to anyone other than E911.

Services that send location info to someone else (the friend finder app mentioned above, parental monitoring services for child phones, workforce management apps designed to help with delivery scheduling, etc) will alert the phone user to each and every request. They generally require the user to affirmatively agree to each request or to specifically change settings on the phone itself to automatically grant the requests.

However, there have been numerous rumors that the government has backdoor programs into the cell phone operating systems that let them set a phone to report its location to them and bypass all the notification and agreement requirements so that the user doesn't know he or she is being monitored. If they exist these programs would not only let federal officials find out where you are now, but have it repeatedly report your location throughout the day so that they know everywhere you have been -- without needing to devote the manpower to physically follow you and without risking that you will notice the surveillance.

This potentially makes it practical for the government to secretly monitor the peoples' movement in much greater detail and on a much more widespread basis than previously. Knowing whether such surveilance is possible, what policies are in place with respect to conducting it and how many times it has been used so far are obvious first steps to determining whether this is a power the government should have and whether specifically laws regulating its use are needed.

Posted by: tanstaafl on July 3, 2008 at 9:44 AM | PERMALINK

By the way, I am REALLY getting pissed off by comments like the one at 8:39 AM.

Yes, Obama's announced decision to ultimately vote for the FISA is disappointing. However it is not clear whether this is a change of position or whether he was bamboozled by the creators of the 'compromise' legislation. The final vote on this has not happened yet and he still has time to reconsider or to succeed in getting changes made to it. And while telecom immunity is not the only problem with the bill, it is the only part President Obama and a stronger Democratic majority could not undue in 2009.

Mostly, however, this is only a single data point. It is getting extremely annoying to have every thread that even remotely touches on constitutional issues generate posts stating that this proves Obama is just another backstabbing politician who will sell us all out on every other issue.

I know these people are trolls and mostly anonymous ones at that, but they really need to... just... go... away!!!

Posted by: tanstaafl on July 3, 2008 at 10:02 AM | PERMALINK

Two points (from someone in law enforcement):

1) There are two ways the location of a powered-up cell phone can be determined. The triangulation method mentioned above by others, and by roaming around with equipment which can pick up the cell's signal. This latter method can be extremely accurate, and allowed us to capture a murderer running from us a few years back.

2) There is no warrant requirement, though whether there ought to be one is a matter of legitimate debate. The Fourth amendment assures "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures...." Generally speaking, the government is required to obtain a warrant, based on probable cause, to breach that security. The courts have held for many decades, however, that where there is no "reasonable expectation of privacy" there is also no need for the government to obtain a warrant before searching. So, for example, the government does not need a warrant to park a squad car in a park to watch a crowd at a sporting event: no one can reasonably expect that what they do or say in such a public venue will be private. On the other hand, a warrant is required if the government wants to listen in on your conversations between you and those in your home. Your cell phone, if switched on, broadcasts its location to the universe, provided someone has the equipment needed to hear the signal. If your phone is switched on, and its number is known, how can you reasonably expect that it's location is "private?"

Posted by: wihntr on July 3, 2008 at 10:17 AM | PERMALINK

Can I just make one small minor point?

Is there such a thing as a pre-modern cellphone?

Posted by: Cornfields on July 3, 2008 at 10:21 AM | PERMALINK

What kind of fool carries a cellphone when they know it's a government tracking device? Dump the phone and put Skype on your laptop. It has the added benefit of encryption and a UK domicile (which is nice because the British totalitarian secret police have to concur with US illegal-surveillance efforts). Giving up the so-called 'lifeline' reliability of a cellphone is better than acquiescing to totalitarian erosion of your rights.

Posted by: forcible overthrow on July 3, 2008 at 10:24 AM | PERMALINK

What kind of fool carries a cellphone when they know it's a government tracking device? Dump the phone and put Skype on your laptop. It has the added benefit of encryption and a UK domicile (which is nice because the British totalitarian secret police have to concur with US illegal-surveillance efforts). Giving up the so-called 'lifeline' reliability of a cellphone is better than acquiescing to totalitarian erosion of your rights.

Posted by: forcible overthrow on July 3, 2008 at 10:24 AM | PERMALINK

Still using a pre E911 phone. Verizon freaks out when I go in.

"He still has time to reconsider" . . . something annoying about this post too.

Posted by: asdf on July 3, 2008 at 10:25 AM | PERMALINK

I should clarify one thing regarding my post above. To locate a cell phone via the cell tower triangulation method, law enforcement must obtain phone records from the service provider. This does require a subpoena for documents, but not a search warrant.
The other method only requires that law enforcement know the phone number of the unit being tracked. This does not require a warrant any more than one is needed for a traffic cop in an airplane to track your car on the highway.

Posted by: wihntr on July 3, 2008 at 10:26 AM | PERMALINK

Is there such a thing as a pre-modern cellphone?

Yes. The older models used different signal encodings, had operated at a much higher power, and may not have had this ability built into their networks in a way that made it so easy to get this information.

By-the-way, an aluminized snack bag makes a pretty good Faraday cage.

Posted by: dr2chase on July 3, 2008 at 10:28 AM | PERMALINK

Hemlock: WRONG.

As the GPS info (read the story, eh?) is held by the cell phone companies in some cases, it is SEARCH to get that info without a warrant.

In addition, the reports said some federal law enforcement agents had obtained tracking data from wireless carriers without any court oversight.

Ron: Yes, I admit it. Amy and Megan McArdle posters on my ceiling.

Posted by: SocraticGadfly on July 3, 2008 at 10:29 AM | PERMALINK

SoctraticGadfly, you're right that the phone company has the info, but that only means that the government would need a warrant to search the phone company's records without its consent. If they give the consent, then no warrant needed. Consumers could presumably demand in their contracts that the company not give that type of info, but I'm not holding my breath.

Posted by: Sancho on July 3, 2008 at 10:46 AM | PERMALINK

Just a quick point that I think often gets lost in these discussions: the 4th Amendment is not the be-all and end-all of surveillance requirements. It sets the outer limits of what the government can do, but that doesn't mean that it's necessary, or desirable, for the government to surveille up to those limits. Legislatures can, should, and do sometimes place limits on such activities short of the constitutional line, because of a determination that's what our society should be like.

Posted by: Glenn on July 3, 2008 at 10:55 AM | PERMALINK

dr2chase: By-the-way, an aluminized snack bag makes a pretty good Faraday cage.

And if you split open the bag and wear it like a hat when you talk on the phone, it will not only keep out the government's commands to you, but it will also keep in all those pesky radio waves trying to get out.

Posted by: anandine on July 3, 2008 at 10:57 AM | PERMALINK

glenn is highly right. in fact, we acceded to the ICCPR, which provides explicit privacy rights under international law. Gee, I wonder why you don't hear shit about that?

Posted by: forcible overthrow on July 3, 2008 at 11:10 AM | PERMALINK

Fascism.

I remember reading an article long ago by a man who had lived in Spain under Franco.

His son was sick with the flu and stayed home from school for a few days. On the third day there was a knock on the door. It was the grey cloaked 'Guardia Civil' (state police)... with Stalhelms [German helmets] and Mauser rifles slung over their shoulders.

They consulted their notebook... and had noticed that the youg boy hadn't been walking his usual route to school and were inquiring why.

Everything ok? Nothing to hide?

He realized that the entire population was under surveillance... all the time and their activities were being recorded down to the last detail.

Given any sort of opportunity, this is what an authoritarian government will do... and why we need to continually fight to protect our Constitution. It's all that stands between us and the Stalhelm.

Been to the club again citizen? Papers please.

Posted by: Buford on July 3, 2008 at 11:29 AM | PERMALINK

Need to get lost?
Put your cell phone in a box and mail it to yourself. Use a trac phone for the weekend.

Posted by: slanted tom on July 3, 2008 at 12:05 PM | PERMALINK

Surveillance is neither "search" nor "seizure." Posted by: Hemlock for Gadflies on July 3, 2008 at 7:59 AM

Surveillance, is by definition of the word, "search".

search (sûrch) pronunciation 1. To make a thorough examination of; look over carefully in order to find something; explore.
surveillance (sər-vā'ləns) pronunciation n.

1. Close observation of a person or group, especially one under suspicion.
2. The act of observing or the condition of being observed.

As you can see, the two words have virtually identical definitions. A warrant is Constitutionally necessary here.

Posted by: Dr. Morpheus on July 3, 2008 at 12:12 PM | PERMALINK

Btw, the linked article is not very specific. It says that the lawsuit was prompted by previous news reports that the goverment has obtained tracking data from the cell phone companies without a warrant.

This could mean that they went to the phone companies and asked them to collect detailed location info on someone's location going forward. Again, if this is possible without a customer's knowledge, it is specifically against the the carriers stated privacy policies.

However, if the requests are for information about where a person was in the past, then the E911 location capabilities on the phone are not a factor because that information is not going to be stored by the carrier. The most info the carriers are going to have on file is which cell phone towers the cell phone is communicating with. This could locate someone within a radius of under 1 mile to several miles depending on how many towers there are in a particular area.

It could be useful in conjunction with physical surveillance with determining someone's movement patterns over a period of time. Or it could help determine if someone was lying about an alibi if there were supposed to be several miles away. But it is not going to pinpoint someone's location at a particular time in the past.

Posted by: tanstaafl on July 3, 2008 at 6:05 PM | PERMALINK




 

 

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