"Live Tracking of Mobile Phones Prompts Court Fights on Privacy"

[John Gilmore]

[See the details at EFF:
  http://www.eff.org/legal/cases/USA_v_PenRegister/
 including the three court orders, and EFF's argument to the first court.

 The real story is that for years prosecutors have been asking
 magistrates to issue court orders to track cellphones in real time
 WITHOUT WARRANTS.  They're tracking people for whom they can't get
 warrants because they have no probable cause to believe there's any
 crime.  They're fishing.  The public never knew, because it all
 happens under seal.  One judge who had previously issued such orders
 got an attack of conscience, and surprisingly PUBLISHED a decision
 against such a secret DoJ request.  EFF noticed and offered legal
 analysis, and that judge and two others started publicly refusing
 such requests.  DoJ won't appeal, because without an appeals court
 precedent against them, they can keep secretly pulling the wool over
 the eyes of other magistrates, and keep tapping the locations of
 ordinary people in realtime without warrants.  --gnu]

No cookies or login required:
http://www.theledger.com/apps/pbcs.dll/article?AID=/20051210/ZNYT01/512100416/1001/BUSINESS

Published Saturday, December 10, 2005
Live Tracking of Mobile Phones Prompts Court Fights on Privacy

By MATT RICHTEL
New York Times

Most Americans carry cellphones, but many may not know that government
agencies can track their movements through the signals emanating from
the handset.

In recent years, law enforcement officials have turned to cellular
technology as a tool for easily and secretly monitoring the movements
of suspects as they occur. But this kind of surveillance - which
investigators have been able to conduct with easily obtained court
orders - has now come under tougher legal scrutiny.

In the last four months, three federal judges have denied prosecutors
the right to get cellphone tracking information from wireless
companies without first showing "probable cause" to believe that a
crime has been or is being committed. That is the same standard
applied to requests for search warrants.

The rulings, issued by magistrate judges in New York, Texas and
Maryland, underscore the growing debate over privacy rights and
government surveillance in the digital age.

With mobile phones becoming as prevalent as conventional phones (there
are 195 million cellular subscribers in this country), wireless
companies are starting to exploit the phones' tracking abilities. For
example, companies are marketing services that turn phones into even
more precise global positioning devices for driving or allowing
parents to track the whereabouts of their children through the
handsets.

Not surprisingly, law enforcement agencies want to exploit this
technology, too - which means more courts are bound to wrestle with
what legal standard applies when government agents ask to conduct such
surveillance.

Cellular operators like Verizon Wireless and Cingular Wireless know,
within about 300 yards, the location of their subscribers whenever a
phone is turned on. Even if the phone is not in use it is
communicating with cellphone tower sites, and the wireless provider
keeps track of the phone's position as it travels. The operators have
said that they turn over location information when presented with a
court order to do so.

The recent rulings by the magistrates, who are appointed by a majority
of the federal district judges in a given court, do not bind other
courts. But they could significantly curtail access to cell location
data if other jurisdictions adopt the same reasoning. (The
government's requests in the three cases, with their details, were
sealed because they involve investigations still under way.)

"It can have a major negative impact," said Clifford S. Fishman, a
former prosecutor in the Manhattan district attorney's office and a
professor at the Catholic University of America's law school in
Washington. "If I'm on an investigation and I need to know where
somebody is located who might be committing a crime, or, worse, might
have a hostage, real-time knowledge of where this person is could be a
matter of life or death."

Prosecutors argue that having such information is crucial to finding
suspects, corroborating their whereabouts with witness accounts, or
helping build a case for a wiretap on the phone - especially now that
technology gives criminals greater tools for evading law enforcement.

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.)

But it is unclear how often prosecutors have asked courts for the
right to obtain cell-tracking data as a suspect is moving. And the
government is not required to report publicly when it makes such
requests.

Legal experts say that such live tracking has tended to happen in
drug-trafficking cases. In a 2003 Ohio case, for example, federal drug
agents used cell tracking data to arrest and convict two men on drug
charges.

Mr. Fishman said he believed that the number of requests had become
more prevalent in the last two years - and the requests have often
been granted with a stroke of a magistrate's pen.

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."

Prosecutors in the recent cases also unsuccessfully argued that the
expanded police powers under the USA Patriot Act could be read as
allowing cellphone tracking under a standard lower than probable
cause.

As Judge Smith noted in his 31-page opinion, the debate goes beyond a
question of legal standard. In fact, the nature of digital
communications makes it difficult to distinguish between content that
is clearly private and information that is public. When information is
communicated on paper, for instance, it is relatively clear that
information written on an envelope deserves a different kind of
protection than the contents of the letter inside.

But in a digital era, the stream of data that carries a telephone
conversation or an e-mail message contains a great deal of information
- like when and where the communications originated.

In the digital era, what's on the envelope and what's inside of it,
"have absolutely blurred," said Marc Rotenberg, executive director of
the Electronic Privacy Information Center, a privacy advocacy group.

And that makes it harder for courts to determine whether a certain
digital surveillance method invokes Fourth Amendment protections
against unreasonable searches.

In the cellular-tracking cases, some legal experts say that the Store
Communications Act refers only to records of where a person has been,
i.e. historical location data, but does not address live tracking.

Kevin Bankston, a lawyer for the Electronic Frontier Foundation, a
privacy advocacy group that has filed briefs in the case in the
Eastern District of New York, said the law did not speak to that
use. James Orenstein, the magistrate in the New York case, reached the
same conclusion, as did Judge Smith in Houston and James Bredar, a
magistrate judge in the Federal District Court in Maryland.

Orin S. Kerr, a professor at the George Washington School of Law and a
former trial attorney in the Justice Department specializing in
computer law, said the major problem for prosecutors was Congress did
not appear to have directly addressed the question of what standard
prosecutors must meet to obtain cell-site information as it occurs.

"There's no easy answer," Mr. Kerr said. "The law is pretty uncertain
here."

Absent a Congressional directive, he said, it is reasonable for
magistrates to require prosecutors to meet the probable-cause
standard.

Mr. Fishman of Catholic University said that such a requirement could
hamper law enforcement's ability to act quickly because of the
paperwork required to show probable cause. But Mr. Fishman said he
also believed that the current law was unclear on the issue.

Judge Smith "has written a very, very persuasive opinion," Mr. Fishman
said. "The government's argument has been based on some tenuous
premises." He added that he sympathized with prosecutors' fears.

"Something that they've been able to use quite successfully and
usefully is being taken away from them or made harder to get,"
Mr. Fishman said. "I'd be very, very frustrated."

---------------------------------------------------------------------
The Cryptography Mailing List
Unsubscribe by sending "unsubscribe cryptography" to majordomo at metzdowd.com