RFID, GPS Technology and Electronic Surveillance

The Obama administration has argued that warrantless tracking is permitted because Americans enjoy no "reasonable expectation of privacy" in their--or at least their cell phones'--whereabouts. U.S. Department of Justice lawyers say that "a customer's Fourth Amendment rights are not violated when the phone company reveals to the government its own records" that show where a mobile device placed and received calls. Those claims have alarmed the ACLU and other civil liberties groups, which have opposed the Justice Department's request and plan to tell the U.S. Third Circuit Court of Appeals in Philadelphia that Americans' privacy deserves more protection and judicial oversight than what the administration has proposed. - Feds Push for Tracking Cell Phones, CNet News, February 11, 2010

Court Rejects Government Use of GPS Tracking

August 7, 2010

Washington Times - Ruling that federal agents erred in attaching a satellite tracking device to a vehicle without a search warrant, a federal appeals court Friday reversed the life sentence of man accused of running a major Washington drug ring.

The U.S. Court of Appeals for the District found that the government’s use of GPS technology to track the defendant Antoine Jones’s Jeep violated the Fourth Amendment.

Civil liberties groups that aided in the appeal of Jones, whose case involved the largest cocaine seizure in city history, called the ruling an important legal victory for privacy rights.

The three-judge ruling called the GPS information key to the federal prosecution of Jones, who owned Club Levels in Northeast Washington across the street from the Metropolitan Police Department’s Fifth District headquarters.

“The GPS data were essential to the government’s case,” the court ruled. “By combining them with Jones’s cell-phone records the government was able to paint a picture of Jones’s movements that made credible the allegation that he was involved in drug trafficking.”

Stephen Leckar, one of the attorneys on the Jones appeal, said the ruling “recognizes the Fourth Amendment’s continued significance in promoting privacy in a high-tech age.”

“The decision simply tells law enforcement agents that they need a judge’s decision before trespassing on a person’s car and attaching a device that tracks and records him or her relentlessly over time and space.”

The decision was also hailed by outside groups that aided in the appeal.

“Today’s decision brings the Fourth Amendment into the 21st century,” Arthur Spitzer, legal director of the American Civil Liberties Union of the National Capital Area, said in a statement announcing the decision.

Jennifer Granick, civil liberties director at the Electronic Frontier Foundation, which also worked on the case, said she hoped other courts grappling with the same issue would follow the decision.

“The court correctly recognized the important differences between limited surveillance of public activities possible through visual surveillance … and the sort of extended, invasive, pervasive, always-on tracking that GPS devices allow,” she said.

Government lawyers had argued Jones’s movements were public anyway because police could have followed him everywhere he went on public roads, but the court rejected that argument.

Bill Miller, a spokesman for the U.S. Attorney’s Office in Washington, said prosecutors were “studying the ruling” Friday. He declined to comment further on whether they would appeal the decision.

The case was investigate by the Metropolitan Police Department and FBI joint Safe Streets Task Force.

Prosecutors said Jones ran a drug ring that involved at least nine other defendants that spanned from 2003 to 2005 involving hundreds of kilograms of cocaine shipped from Mexico. Executing search warrants in 2005, authorities said they seized 97 kilograms of cocaine from various locations in the District and Maryland — the largest cocaine seizure in area history, officials said.

But Jones’s attorney at trial argued that the case was based on the government’s interpretations of what it called coded telephone calls and the use of informants with motives to testify for the government and against Jones.

“I am very happy for Mr. Jones and his family,” the trial attorney, A. Eduardo Balarezo, said Friday in reaction to the appeals court decision. “We always felt that this issue was very important but that it was not fully considered at trial.”

Tracking Your Car? Cops Need a Warrant, Says Judge

August 7, 2010

Jacqui Cheng - Police cannot surreptitiously stick a GPS unit on your car and track your movements without a warrant, the US Court of Appeals for the District of Columbia has ruled. In an opinion published Friday, the court said that police use of GPS evidence to convict two individuals was a violation of the Fourth Amendment, and that people have a reasonable expectation of privacy when it comes to their movements over an extended period of time.

Warrantless GPS tracking has always been a contentious issue, with supporters arguing that an individual can make similar observations about the location of your car just by driving around town and noting that you're at home, you're at the grocery store, you're at the strip club, and so on.

Detractors, which include the Electronic Frontier Foundation and the American Civil Liberties Union, argue that it's one thing to note someone's car location and another to keep hourly data on every single stop you make along a specific route for days or months on end.

In this particular case, two nightclub owners, Antoine Jones and Lawrence Maynard, had been convicted on narcotics charges in part due to police-collected GPS data. Police had planted* the GPS unit on a car that was parked on private property, then tracked its whereabouts for a month. The government argued that the suspects had no reasonable expectation of privacy because their movements took place out in public.

The appeals court disagreed.

"Society recognizes Jones‘ expectation of privacy in his movements over the course of a month as reasonable, and the use of the GPS device to monitor those movements defeated that reasonable expectation," wrote the court.

Both the ACLU and EFF applauded the decision, saying that the Supreme Court had not considered location tracking in such depth and for such a long period of time.

"GPS tracking enables the police to know when you visit your doctor, your lawyer, your church, or your lover," ACLU-NCA Legal Director Arthur Spitzer said in a statement. "And if many people are tracked, GPS data will show when and where they cross paths. Judicial supervision of this powerful technology is essential if we are to preserve individual liberty. Today's decision helps brings the Fourth Amendment into the 21st Century."

The decision does indeed help set a precedent for future cases, though similar decisions vary by state. In 2009, the Wisconsin Court of Appeals ruled that warrantless GPS tracking did not violate an individual's Fourth Amendment rights, while the New York Court of Appeals said that it did.

In Jones' case, his conviction was heavily dependent upon the GPS data collected by police; as a result, the court reversed his conviction. (Maynard wasn't so lucky, as there was other convincing evidence against him.)

* The court documents don't say what police used in this specific situation, but the court's opinion includes a description of a miniature GPS dart, a radio transmitter, and a battery in "a sticky compound material" that will stick to a vehicle when fired. Perhaps we're late to the party, but this is some serious Spiderman tech going on here.

Feds Push for Tracking Cell Phones

February 11, 2010

Declan McCullagh - Two years ago, when the FBI was stymied by a band of armed robbers known as the "Scarecrow Bandits" that had robbed more than 20 Texas banks, it came up with a novel method of locating the thieves.

FBI agents obtained logs from mobile phone companies corresponding to what their cellular towers had recorded at the time of a dozen different bank robberies in the Dallas area. The voluminous records showed that two phones had made calls around the time of all 12 heists, and that those phones belonged to men named Tony Hewitt and Corey Duffey. A jury eventually convicted the duo of multiple bank robbery and weapons charges.

Even though police are tapping into the locations of mobile phones thousands of times a year, the legal ground rules remain unclear, and federal privacy laws written a generation ago are ambiguous at best. On Friday, the first federal appeals court to consider the topic will hear oral arguments (PDF) in a case that could establish new standards for locating wireless devices.

In that case, the Obama administration has argued that warrantless tracking is permitted because Americans enjoy no "reasonable expectation of privacy" in their--or at least their cell phones'--whereabouts. U.S. Department of Justice lawyers say that "a customer's Fourth Amendment rights are not violated when the phone company reveals to the government its own records" that show where a mobile device placed and received calls.

Those claims have alarmed the ACLU and other civil liberties groups, which have opposed the Justice Department's request and plan to tell the U.S. Third Circuit Court of Appeals in Philadelphia that Americans' privacy deserves more protection and judicial oversight than what the administration has proposed.

"This is a critical question for privacy in the 21st century," says Kevin Bankston, an attorney at the Electronic Frontier Foundation who will be arguing on Friday. "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."

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."

(Most cases have involved the ground rules for tracking cell phone users prospectively, and judges have disagreed over what legal rules apply. Only a minority has sided with the Justice Department, however.)

Cellular providers tend not to retain moment-by-moment logs of when each mobile device contacts the tower, in part because there's no business reason to store the data, and in part because the storage costs would be prohibitive. They do, however, keep records of what tower is in use when a call is initiated or answered--and those records are generally stored for six months to a year, depending on the company.

Verizon Wireless keeps "phone records including cell site location for 12 months," Drew Arena, Verizon's vice president and associate general counsel for law enforcement compliance, said at a federal task force meeting in Washington, D.C. last week. Arena said the company keeps "phone bills without cell site location for seven years," and stores SMS text messages for only a very brief time.

Gidari, the Seattle attorney, said that wireless carriers have recently extended how long they store this information.

"Prior to a year or two ago when location-based services became more common, if it were 30 days it would be surprising," he said.

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."

Update: A source inside the U.S. Attorney's Office for the northern district of Texas, which prosecuted the Scarecrow Bandits mentioned in the above article, tells me that this was the first and the only time that the FBI has used the location-data-mining technique to nab bank robbers. It's also worth noting that the leader of this gang, Corey Duffey, was sentenced last month to 354 years (not months, but years) in prison. Another member is facing 140 years in prison.

Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.

Big Brother, Is That You?: Apple Now Tracking the Location of You and Your Devices

June 22, 2010

geekologi - So apparently Apple updated their terms of service and privacy policy (which you have to accept to continue downloading apps) yesterday to track your devices wherever you take them and use the information as they please. I probably should have taken a look before agreeing, but let's be honest: nobody reads those things and I would have agreed anyways. Per the new terms:

Location-Based Services

To provide location-based services on Apple products, Apple and our partners and licensees may collect, use, and share precise location data, including the real-time geographic location of your Apple computer or device. This location data is collected anonymously in a form that does not personally identify you and is used by Apple and our partners and licensees to provide and improve location-based products and services. For example, we may share geographic location with application providers when you opt in to their location services.

Some location-based services offered by Apple, such as the MobileMe "Find My iPhone" feature, require your personal information for the feature to work.

Oh man, remember when Apple was all, "Think Different"? And now they're all "Think 1984". But I already have a big brother! His name's Frank, and he doesn't care where I am. Unless it's In-N-Out, then he wants a burger.

Privacy Change: Apple Knows Where Your Phone Is And Is Telling People