Editore"s Note
Tilting at Windmills

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July 3, 2008
By: Kevin Drum

YOU AND YOUR CELL....PART 2....Over at American Street, Mark Adams argues that we shouldn't get too bent out of shape about the federal government tracking our location via our cell phone. After all, they can tail us with human agents perfectly legally, and this is just a technologically advanced version of the same thing.

I figure a lot of people probably feel the same way, so I think it's worth pushing back a bit on two fronts. First front: there's a difference here in where you can be tracked. A human agent can only follow you around in public spaces, while a cell phone signal can be tracked anywhere, even in private compounds or inside buildings. That makes it considerably more intrusive.

Second, there's the question of when a quantitative difference becomes a qualitative difference. Human tails have an enormous practical limitation: because they're difficult, expensive, and fallible, there can only be a very small number of them happening at any given time. Cell phone tracking, however, is automatic: it's technically feasible to track every cell phone in the country 24/7 and keep the tracking information in a database forever if the government so desires. In theory this is just human tracking multiplied by a billion, but in practice it's an entirely new addition to the surveillance state. Do we think this should be legal?

I don't. I'm not making a constitutional argument here, and I suspect that, in fact, the Supreme Court would find this kind of thing acceptable. Pen registers don't require a warrant, for example, because the Supremes decided some time ago that when you dial a number you're voluntarily letting the phone company know what number you're dialing. This means you have no reasonable expectation of privacy: if you're willing to let the phone company know what numbers you're dialing, you have to figure that law enforcement has access too.

The Supremes have also ruled once or twice on cases that take on my quantitative vs. qualitative argument, and they haven't been kind to it. If technology makes access to public information a million times easier, thus fundamentally changing its character, that's too bad. Public information is public information.

But that doesn't change my opinion. I don't think law enforcement should be allowed to build a permanent database of all of our movements, and if tracking this stuff without a warrant is legal, then eventually that's what they're going to do. The Department of Justice ought to be willing to tell us its policies in this area, and Congress ought to pass legislation regulating it. Your mileage may vary, but I'm with the ACLU and the EFF on this.

Kevin Drum 10:52 AM Permalink | Trackbacks | Comments (41)

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Next you'll tell us that the cameras in our cell phones are being continuously monitored by an army of young republicans in an underground bunker somewhere in Virginia.

Posted by: AJB on July 3, 2008 at 10:59 AM | PERMALINK

Kevin wrote: "This means you have no reasonable expectation of privacy: if you're willing to let the phone company know what numbers you're dialing, you have to figure that law enforcement has access too."

So you are saying that if I provide any information to any business that I have contracted to provide me with goods or services, in the course of making use of those goods or services, I should expect that "law enforcement" will have access to any and all of that information, without a warrant?

When I "dial" a phone number (how odd that everyone still commonly uses the anachronistic word "dial" to refer to pushing buttons), I am transmitting those numbers to the phone company and ONLY to the phone company, to give them information that they need in order to complete a business transaction (establishing a communciations link with another phone) that I am paying them for.

Why you think that "law enforcement" should have access to that information, without a warrant, is beyond me.

Posted by: SecularAnimist on July 3, 2008 at 11:01 AM | PERMALINK

SecularAnimist, that's not Kevin's position, it's the Supreme court's position and it sucks.

I'd like the supreme court to answer

A) Why did their decision on an "Expectation of Privacy" rest on whether the information was available to a third party and not on people's expectations of privacy.

B) How is someone to make a phone call without revealing the number to the phone company.

C) Under this test, every single data packet sent on the internet falls outside the "expectation of privacy", including emails, internet phone calls, web browsing, file downloads, everything. Does every one of those actions fall outside anyone's day to day expectation of privacy?

Bad test, bad decision.

Posted by: Boronx on July 3, 2008 at 11:09 AM | PERMALINK

Any one who uses any wireless device is basically standing there screaming out what they are doing. Just because you humans can't pick up that frequency doesn't mean that a machine can't.

Why in god's name would you expect privacy?

Posted by: optical weenie on July 3, 2008 at 11:13 AM | PERMALINK

By this argument, if I apply for a loan, try to adopt a pet or write a letter to a friend which is then mailed, the government should be given a copy of the information.

Posted by: lynn on July 3, 2008 at 11:19 AM | PERMALINK

optical weenie, isn't it true that cell phone networks can track you even when your phone is off?

Posted by: Boronx on July 3, 2008 at 11:22 AM | PERMALINK

OW has it exactly correct. The question is not whether a person expects something to be regarded as private, it is whether that expectation is objectively "reasonable." For example, I can't reasonably expect that what I wear to the courthouse is private because dozens of people will see me. I can reasonably expect that what I read in my home with the doors closed is private.

Posted by: wihntr on July 3, 2008 at 11:25 AM | PERMALINK

optical weenie,
if broadcasting on wireless were the sole test than cell calls themselves would be fair game along with tapping land lines by picking EM emissions off the wires.

Posted by: Boronx on July 3, 2008 at 11:27 AM | PERMALINK

isn't it true that cell phone networks can track you even when your phone is off?

Some can. It's safest to remove the battery if you want to go dark.

Posted by: dob on July 3, 2008 at 11:28 AM | PERMALINK

You do realize, do you not, that there are metallic bags for passports that block radio waves? It is intended to prevent remote snooping on your data. A person with a chip reader cannot simply walk by you and download your data from your passport (or anything else that is stored in the bag).

This works with cell phones too. Put your cell phone in one of these bags if you absolutely must leave it on, though once you place it in the bag this becomes silly because it will not be receiving signals any better than it can send signals. This IS easier than removing the battery from the cell phone when you wish to NOT be tracked. Just place it in the bag and it is cut off. No watching your movements, nothing. If you want to make an annoying call and let everyone around you listen in on your "important" bullshit inane conversation then just pop it out of the bag and go.

As for rental cars: pop out the fuse for the GPS tracker when you don't want big brother watching/tracking your movements.

Posted by: Praedor Atrebates on July 3, 2008 at 11:30 AM | PERMALINK

OW has it exactly correct. The question is not whether a person expects something to be regarded as private, it is whether that expectation is objectively "reasonable." For example, I can't reasonably expect that what I wear to the courthouse is private because dozens of people will see me. I can reasonably expect that what I read in my home with the doors closed is private.

There is no constituional barrier to the government tracking the physical location of a cell phone, or all cell phones (though there is a huge cost barrier.) Whether such dragnet tracking should be statutorily permissible is a legitimate question, however.

Posted by: wihntr on July 3, 2008 at 11:30 AM | PERMALINK

I like the bag idea because it removes any possibility for some kind of passive response to a high-power request (does such technology exist?), which might still happen if you only removed the battery.

Posted by: Boronx on July 3, 2008 at 11:33 AM | PERMALINK

Kevin, your intuition that "when a quantitative difference becomes a qualitative difference" is important. In fact, it was central to this Supreme Court case:

Kyllo v. United States, 533 U.S. 27 (2001),

See wiki entry: http://en.wikipedia.org/wiki/Kyllo_v._United_States

Kyllo v. United States, 533 U.S. 27 (2001), held that the use of a thermal imaging device from a public vantage point to monitor the radiation of heat from a person's home was a "search" within the meaning of the Fourth Amendment, and thus required a warrant. Because the police in this case did not have a warrant, the Court reversed Kyllo's conviction for growing marijuana.

You may want to update your post, as *Kyllo* (written by Justice Scalia, by the way) lends quite a bit of support to your position.

Posted by: Reader on July 3, 2008 at 11:40 AM | PERMALINK

Let's call it a "Full Employment Opportunity." The government hires enough people to do, in person, what they are doing electronically. Ought to reduce unemployment down to 2 percent, even with out cooking the books.

Posted by: Chief on July 3, 2008 at 11:42 AM | PERMALINK

Justice Stevens dissented, and argued that this was not a search & there was no need for a warrant. His reasoning was that because the cops could post a human officer on the street who could watch the snow on the house's roof & evaluate the speed at which it melted comparative to other nearby houses, they could already basically observe heat patterns. But Scalia for the majority (of Souter, Thomas, Ginsburg, Breyer) held that the technological boost made the difference.

Posted by: Reader on July 3, 2008 at 11:42 AM | PERMALINK

The current cell phone network is basically an offshoot of the century-old landline network. As the network migrates to the internet, it should be feasible to use encryption techniques to allow me to mask the location information from the last link to my phone, while still making me as reachable as I am now. The Surveillance State will fight it, of course, but the tech war here is not over.

Posted by: Ken D. on July 3, 2008 at 11:45 AM | PERMALINK

response to a high-power request (does such technology exist?) - Boronx

Yes, its called passive RF ID. Its how your toll booth pass works.

Posted by: optical weenie on July 3, 2008 at 11:53 AM | PERMALINK

If we genetically engineered supermen with RF or IR vision, and hired them as cops, would they need special warrants, per Kyllo?

Posted by: Grumpy on July 3, 2008 at 11:57 AM | PERMALINK

Properly implemented, the GPS spying system could do network analysis to look at the phones that come NEAR a target phone. They should be able to figure out who the associates of a target phone by repeated proximity, and use that to generate a graph of possible terrorists.

Or whatever form of guilt by association you want to use today.

Posted by: MobiusKlein on July 3, 2008 at 12:02 PM | PERMALINK

Some can. It's safest to remove the battery if you want to go dark.

The terrorists would never think of that!

Posted by: Nazgul35 on July 3, 2008 at 12:09 PM | PERMALINK

All of our new shackles, they are nice and shiny.

Posted by: Boorring on July 3, 2008 at 12:13 PM | PERMALINK

The Department of Justice ought to be willing to tell us its policies in this area, and Congress ought to pass legislation regulating it.

They can pass all the legislation they want, but it's been shown that the executive branch will decide which laws they're going to follow and which ones they're going to ignore.

Posted by: Arachnae on July 3, 2008 at 12:20 PM | PERMALINK

With computing power ever increasing, everyone with a cell phone can be tracked at all times for the rest of time by the government. It should not be legal.

There ought to be an easy way to hack the gps, though.

Posted by: Brojo on July 3, 2008 at 12:46 PM | PERMALINK

Although I too am very suspicious of government gathering of electronic data, I think the one thing that everyone is overlooking is the manpower that would be required to actually analyze all this data.

To start with, government law enforcement agencies, especially those at the state and local level are already undermanned. The situation is not going to get much better even if budgets increase because government pay is so lousy.

So while the government may indeed be collecting data about our whereabouts using cell-phone data, in all likelyhood, this data is not being analyzed and is just being dumped straight into a database. Kinda like the scene in the first Indiana Jones movie where the Ark gets stored in an immense warehouse never to be opened again.

Capability does not equal manpower.....

Posted by: mfw13 on July 3, 2008 at 1:29 PM | PERMALINK

Weenie is right. Remember, folks, it is actually a two-way radio.

That said, give the govt something to actually do. Text a phrase like "gay Albanian porn" to someone new every day.

Weenie's also on to something else. How long before the government starts coattailing on Wally-World's RFID tags?

Posted by: SocraticGadfly on July 3, 2008 at 1:52 PM | PERMALINK

This is like the difference between having a cop pull you over/issue a ticket and having, as they do in Britain, many, many radar coupled cameras. You literally /cannot/ speed in large section of Britain, you will get tickets (4 or 5 of them for a 25 mile run). Speeding ticket enforcement becomes a natural law, like gravity.

Posted by: Stewart Dean on July 3, 2008 at 2:17 PM | PERMALINK

This is like the difference between having a cop pull you over/issue a ticket and having, as they do in Britain, many, many radar coupled cameras.

This compares to the ability of the government to compile a massive trace of everywhere you go how, exactly?

Posted by: Arachnae on July 3, 2008 at 2:49 PM | PERMALINK

The police trailing someone may be technically legal, but a civil suit for harassment against the police often wins (see TV crime shows for verification (lol)). In practicality, if you tell the cops you know they are following you, they will back off in most cases because they don't like this kind of publicity.

Congress could easily overturn the SCOTUS 'open phone number' argument by passing a law making numbers called via hardwire, cell or internet subject to strict privacy (no recording, no disclosure). There is no logical reason why a face/face conversation with someone is private but voice to voice is public. 1984 must be resisted, over and over.

Posted by: JimPortlandOR on July 3, 2008 at 2:49 PM | PERMALINK

There are two very different issues being discussed here. One is the issue of "the government" monitoring all cell phone traffic to fine out who is calling who. Obtaining records of that sort DOES require some sort of "permission" from a court (or did until the Bush administration interpreted FISA the way they have.)

A very separate issue, and the one that kicked this discussion off, is whether "the government" may lawfully monitor and store the physical location of cell phones, and analyze that however they want-- without first obtaining a warrant or subpoena for telephone records from a cell service provider. The technology exists, and is frequently used, to find the physical location of a switched-on cell phone without the need to obtain service provider records. At present, that is most clearly lawful and is certainly consitutional. If service provider records are to be used to track the physical location of a phone, a subpoena for phone records is needed-- if the service provider won't release them without a subpoena, which is almost invariably what happens nowdays. (An exception being where the cops are aware of an immediate danger to someone in close proximity to the phone, eg-- a person is kidnapped but still has their cell phone turned on, enabling the cops to find the person.)

Folks, if you don't want the gummint to know where you are, turn off your phone. Or just use a land line. Ya know we did that for decades and it was really pretty nice.

Posted by: wihntr on July 3, 2008 at 3:41 PM | PERMALINK

In the middle Eighties I had a neighbor who was alcoholic and recently released from prison. He alerted me to the problem of parallel processing and how it would enble the government to monitor all things all the time in perpetuity. I think that capacity now exists.

Posted by: Brojo on July 3, 2008 at 4:31 PM | PERMALINK
Although I too am very suspicious of government gathering of electronic data, I think the one thing that everyone is overlooking is the manpower that would be required to actually analyze all this data.

Analysis can be automated too, by the same sort of technologies by which the NSA is doing mass monitoring of overseas phonecalls. It's called data mining.

Of course, once you find a person of interest, you just select the relevant cellphone data and manually analyze the past and current data. It's not quite following everyone round with a video camera, but it's a pretty fair approximation.

Posted by: Robert Merkel on July 3, 2008 at 4:42 PM | PERMALINK

Robert,

I know all about data mining. Doesn't change the fact that a human being has to be involved in the process at some point to look at the results of the computer's analysis and decide whether or not to take action.

Let's not forget that despite the advances in modern technology, computers still cannot think for themselves.

Posted by: mfw13 on July 3, 2008 at 4:59 PM | PERMALINK

In the same vein:

Google must devulge YouTube log
http://news.bbc.co.uk/2/hi/technology/7488009.stm

Posted by: slanted tom on July 3, 2008 at 5:03 PM | PERMALINK

I attended a conference hosted by DARPA during which a scientist described the possible uses of monitoring every cell phone. He used many examples but I'll chose one: bioterrorism. He explained that the technology existed to place a sensory array in every phone to detect, pick a number, 40 known bioterror compounds. For example, let's say cell phone A reports detecting anthrax. A signal is sent to homeland defense. On its own, it might be a false positive or perhaps a foolish bioterrorist who didn't clean themselves after exiting the lab before using a phone. But suppose twenty cell phones in a two block area nearly simultaneously send a signal. That's probably more than noise and presents an excellent early warning system. So there are many security and public safety benefits that will come from so much connectivity. I'm not a fan of giving away the guarantees of privacy but a purely legal analysis of historical precedents doesn't capture what the future will bring.

Posted by: Epictetus on July 3, 2008 at 5:30 PM | PERMALINK

Is a wall legally no different from a window, if you have a devicee that can see through walls?

Does a door have no legal standing because you can break it down?

Posted by: pbg on July 3, 2008 at 6:28 PM | PERMALINK

If you walk down the street shouting, people with ears will hear you. If you walk down the street with your cell phone on, you are in effect shouting electronically. If you don’t want to be noticed, don’t shout and turn your phone off.

I am a bit skeptical that turned off phones can be tracked. Why would the phone company load down its network and shorten the phones battery life by transmitting when turn off? If anyone can explain how turned off phones can be tracked, please speak up.

Also, GPS only works when you are out in the open, not in buildings or even under trees. GPS satellites run off solar cells and batteries, and their signal is just not that strong. This also applies to satellite phones, which must be used outside.

Posted by: fafner1 on July 3, 2008 at 10:04 PM | PERMALINK

pbg wrote: “Is a wall legally no different from a window, if you have a devicee that can see through walls?
Does a door have no legal standing because you can break it down?”

When you look through a window, you are a passive receiver of the photons the people inside are projecting. Likewise when you hear a loud conversation coming through an open window. If you look through a wall by passively observing infrared emissions, you are sensing photons the same as visible light coming through a window. If you point a radar beam through the wall into the house however, you are now using an active technology. Projecting radar waves into a house can be viewed as invasive, the same as actually entering.

Unfortunately, the above argument is too technical for the Supreme Court, whose college degrees are in non-technical fields. Instead they came up with a silly floating criterion – you can use any technology, passive or active, if it is commonly available to non-technical people like Supreme Court Justices. You can’t use any technology, active or passive, if it is something the Supreme Court justices view as unusual. I believe the case in question involved the use of infrared sensors to detect marijuana growing houses. The court ruled the sensors were illegal, as they were too technologically advanced, when in fact all they do is slightly extend the spectrum of light the human eye can detect.

Posted by: fafner1 on July 3, 2008 at 10:21 PM | PERMALINK

"Second, there's the question of when a quantitative difference becomes a qualitative difference" - Exactly.

Posted by: on July 4, 2008 at 12:58 AM | PERMALINK

The issue, IMHO, is fair warning. If they put up video cameras to catch red-light runners, there should be a publicity campaign and signs here and there reminding people of that fact. Ditto for cell phones. Maybe one of those advertising slips in your monthly bill now and then.

Don't forget all the dupes who are buying GM's StarTrack or whatever it is. A lot of people will find it comforting that the gov't can find them.

Posted by: Stuart Eugene Thiel on July 4, 2008 at 10:39 AM | PERMALINK

Epictetus, that's even more intrusive. What if you're a West Texas rancher looking into the causes of downer cows and it turns out to be anthrax out in the field?

Posted by: SocraticGadfly on July 6, 2008 at 12:46 AM | PERMALINK

The U.S. is an emerging police state.

Posted by: Luther on July 7, 2008 at 3:02 AM | PERMALINK




 

 

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