Cell Phones and a Cashless Society

Can the FBI Secretly Track Your Cell Phone?

February 10, 2010

Newsweek - The Justice Department is poised this week to publicly defend a little-known law-enforcement practice that critics say may be the “sleeper” privacy issue of the 21st century: the collection of cell-phone “tracking” records that identify the physical locations where the phones have been.

It may come as a surprise to most of the owners of the country’s 277 million cell phones, but their cell-phone company retains records of where their device has been at all times—either because the phones have tiny GPS devices embedded inside or because each phone call is routed through towers that can be used to pinpoint the phones’ location to within areas as small as a few hundred feet.

Such location “logs” never show up on your monthly cell-phone bill. But federal court records filed over the past year indicate that federal prosecutors and the FBI have increasingly been obtaining such records in the course of criminal investigations—without any notice to the cell-phone customer or any showing of “probable cause” that tracking the physical location of the phone will turn up evidence of an actual crime.

“Most people don’t understand they are carrying a tracking device in their pockets,” says Kevin Bankston, a lawyer with the Electronic Frontier Foundation, a privacy group that has been trying to monitor the Justice Department’s practice.

Much about the practice—including how many “tracking” records have been collected by the government—remains shrouded in secrecy. But in one court case in which the use of such records arose, a Philadelphia FBI agent named William Shute testified that he had obtained such records 150 times in recent years in order to track the location of federal fugitives.

It also briefly became an issue in last year’s New Jersey gubernatorial race when the ACLU obtained records showing that, as U.S. attorney, Republican candidate (and now governor) Chris Christie had acquired such records 79 times without judicial warrants. (Christie called criticism of the practice “overblown hyperbole.”)

This week, the constitutionality of the Justice Department’s method of acquiring such records will be argued in federal court for the first time.

A panel of three federal judges in Philadelphia on Friday is due to hear oral arguments in a landmark case in which Bankston’s group and the ACLU are contending that the Justice Department’s cell-phone tracking practice raises profound “privacy” issues under the Fourth Amendment to the Constitution. The groups contend the Justice Department should be required to first obtain the equivalent of search warrants from federal judges in which they would have to establish “probable cause” that the records will actually yield evidence of a federal crime.

Currently, the records are obtained under what are known as “2703(d)” orders—a reference to an obscure provision of a federal law known as the Stored Communications Act—in which prosecutors only need to assert that there are “reasonable grounds” to believe the records are “relevant” to an ongoing federal criminal investigation, a much lower standard that that needed for a search warrant.

The case arose because a federal magistrate in a drug case in Philadelphia refused to grant an order to turn over cell-phone tracking records of one subject, making the magistrate (and a handful of other magistrates and federal judges who have issued similar rulings in recent years) something of a hero to privacy advocates.

But the Justice Department is appealing, contending in a brief that the concerns of its privacy critics are “outlandish” and overblown. The thrust of the department’s argument: cell-phone tracking records are “routine business records” that contain “non content” data and are therefore “unprotected” under the Fourth Amendment of the Constitution. The idea that the government’s acquisition of records might lead to “dragnet surveillance”—as the critics claim—is an “absurdity,” states one of the Justice Department’s briefs in the case, which is cofiled by Mark Eckenwiler, the associate director of the DOJ’s Office of Enforcement Operations.

Federal prosecutors were even more blunt in an earlier cell-phone tracking dispute, although in ways that might hardly be reassuring to most cell-phone users.

“One who does not wish to disclose his movements to the government need not use a cellular telephone,” the prosecutors wrote.

Feds Push for Tracking Cell Phones

February 11, 2010

CNet - ... Not long ago, the concept of tracking cell phones would have been the stuff of spy movies. In 1998's "Enemy of the State," Gene Hackman warned that the National Security Agency has "been in bed with the entire telecommunications industry since the '40s--they've infected everything." After a decade of appearances in "24" and "Live Free or Die Hard," location-tracking has become such a trope that it was satirized in a scene with Seth Rogen from "Pineapple Express" (2008).

Once a Hollywood plot, now 'commonplace'

Whether state and federal police have been paying attention to Hollywood, or whether it was the other way around, cell phone tracking has become a regular feature in criminal investigations. It comes in two forms: police obtaining retrospective data kept by mobile providers for their own billing purposes that may not be very detailed, or prospective data that reveals the minute-by-minute location of a handset or mobile device.

Obtaining location details is now "commonplace," says Al Gidari, a partner in the Seattle offices of Perkins Coie who represents wireless carriers. "It's in every pen register order these days."

Gidari says that the Third Circuit case could have a significant impact on police investigations within the court's jurisdiction, namely Delaware, New Jersey, and Pennsylvania; it could be persuasive beyond those states. But, he cautions, "if the privacy groups win, the case won't be over. It will certainly be appealed."

CNET was the first to report on prospective tracking in a 2005 news article. In a subsequent Arizona case, agents from the Drug Enforcement Administration tracked a tractor trailer with a drug shipment through a GPS-equipped Nextel phone owned by the suspect. Texas DEA agents have used cell site information in real time to locate a Chrysler 300M driving from Rio Grande City to a ranch about 50 miles away. Verizon Wireless and T-Mobile logs showing the location of mobile phones at the time calls became evidence in a Los Angeles murder trial.

And a mobile phone's fleeting connection with a remote cell tower operated by Edge Wireless is what led searchers to the family of the late James Kim, a CNET employee who died in the Oregon wilderness in 2006 after leaving a snowbound car to seek help.

"This is a critical question for privacy in the 21st century. If the courts do side with the government, that means that everywhere we go, in the real world and online, will be an open book to the government unprotected by the Fourth Amendment." --Kevin Bankston, attorney, Electronic Frontier Foundation

The way tracking works is simple: mobile phones are miniature radio transmitters and receivers. A cellular tower knows the general direction of a mobile phone (many cell sites have three antennas pointing in different directions), and if the phone is talking to multiple towers, triangulation yields a rough location fix. With this method, accuracy depends in part on the density of cell sites.

The Federal Communications Commission's "Enhanced 911" (E911) requirements allowed rough estimates to be transformed into precise coordinates. Wireless carriers using CDMA networks, such as Verizon Wireless and Sprint Nextel, tend to use embedded GPS technology to fulfill E911 requirements. AT&T and T-Mobile comply with E911 regulations using network-based technology that computes a phone's location using signal analysis and triangulation between towers.

T-Mobile, for instance, uses a GSM technology called Uplink Time Difference of Arrival, or U-TDOA, which calculates a position based on precisely how long it takes signals to reach towers. A company called TruePosition, which provides U-TDOA services to T-Mobile, boasts of "accuracy to under 50 meters" that's available "for start-of-call, midcall, or when idle."

A 2008 court order to T-Mobile in a criminal investigation of a marriage fraud scheme, which was originally sealed and later made public, says:

"T-Mobile shall disclose at such intervals and times as directed by (the Department of Homeland Security), latitude and longitude data that establishes the approximate positions of the Subject Wireless Telephone, by unobtrusively initiating a signal on its network that will enable it to determine the locations of the Subject Wireless Telephone."

'No reasonable expectation of privacy'

In the case that's before the Third Circuit on Friday, the Bureau of Alcohol, Tobacco, Firearms and Explosives, or ATF, said it needed historical (meaning stored, not future) phone location information because a set of suspects "use their wireless telephones to arrange meetings and transactions in furtherance of their drug trafficking activities."

U.S. Magistrate Judge Lisa Lenihan in Pennsylvania denied the Justice Department's attempt to obtain stored location data without a search warrant; prosecutors had invoked a different legal procedure. Lenihan's ruling, in effect, would require police to obtain a search warrant based on probable cause--a more privacy-protective standard.

Lenihan's opinion (PDF)--which, in an unusual show of solidarity, was signed by four other magistrate judges--noted that location information can reveal sensitive information such as health treatments, financial difficulties, marital counseling, and extra-marital affairs.

In its appeal to the Third Circuit, the Justice Department claims that Lenihan's opinion "contains, and relies upon, numerous errors" and should be overruled. In addition to a search warrant not being necessary, prosecutors said, because location "records provide only a very general indication of a user's whereabouts at certain times in the past, the requested cell-site records do not implicate a Fourth Amendment privacy interest."

The Obama administration is not alone in making this argument. U.S. District Judge William Pauley, a Clinton appointee in New York, wrote in a 2009 opinion that a defendant in a drug trafficking case, Jose Navas, "did not have a legitimate expectation of privacy in the cell phone" location. That's because Navas only used the cell phone "on public thoroughfares en route from California to New York" and "if Navas intended to keep the cell phone's location private, he simply could have turned it off" ...

The ACLU, EFF, the Center for Democracy and Technology, and University of San Francisco law professor Susan Freiwald argue that the wording of the federal privacy law in question allows judges to require the level of proof required for a search warrant "before authorizing the disclosure of particularly novel or invasive types of information." In addition, they say, Americans do not "knowingly expose their location information and thereby surrender Fourth Amendment protection whenever they turn on or use their cell phones."

"The biggest issue at stake is whether or not courts are going to accept the government's minimal view of what is protected by the Fourth Amendment," says EFF's Bankston. "The government is arguing that based on precedents from the 1970s, any record held by a third party about us, no matter how invasively collected, is not protected by the Fourth Amendment."