The United States of Surveillance

I remember when the law was simple: The U.S. government could not spy on American citizens, period. Oh, how things have changed (in violation of the U.S. Constitution)

How many of the owners of the country’s 277 million cell phones even know that companies like AT&T, Verizon, and Sprint can track their devices in real time? Most “don’t have a clue,” says privacy advocate James X. Dempsey. The tracking is possible because either the phones have tiny GPS units inside or each phone call is routed through towers that can be used to pinpoint a phone’s location to areas as small as a city block. This capability to trace ever more precise cell-phone locations has been spurred by a Federal Communications Commission rule designed to help police and other emergency officers during 911 calls. But the FBI and other law-enforcement outfits have been obtaining more and more records of cell-phone locations—without notifying the targets or getting judicial warrants establishing “probable cause,” according to law-enforcement officials, court records, and telecommunication executives. (The Justice Department draws a distinction between cell-tower data and GPS information, according to a spokeswoman, and will often get warrants for the latter.)

The Justice Department doesn’t keep statistics on requests for cell-phone data, according to the spokeswoman. So it’s hard to gauge just how often these records are retrieved. But Al Gidari, a telecommunications lawyer who represents several wireless providers, tells NEWSWEEK that the companies are now getting “thousands of these requests per month,” and the amount has grown “exponentially” over the past few years. Sprint Nextel has even set up a dedicated Web site so that law-enforcement agents can access the records from their desks—a fact divulged by the company’s “manager of electronic surveillance” at a private Washington security conference last October. “The tool has just really caught on fire with law enforcement,” said the Sprint executive, according to a tape made by a privacy activist who sneaked into the event. (A Sprint spokesman acknowledged the company has created the Web “portal” but says that law-enforcement agents must be “authenticated” before they are given passwords to log on, and even then still must provide valid court orders for all nonemergency requests.)

And the government believes it has a right to use cell phone data even to identify political protesters:

The issue came to a head this month in a federal courtroom in Philadelphia. A Justice Department lawyer, Mark Eckenwiler, asked a panel of appeals-court judges to overturn Lenihan’s ruling, arguing that the Feds were only asking for what amounted to “routine business records.” But he faced stiff questioning from one of the judges, Dolores Sloviter, who noted that there are some governments, like Iran’s, that would like to use such records to identify political protesters. “Now, can the government assure us,” she pressed Eckenwiler, that Justice would never use the provisions in the communications law to collect cell-phone data for such a purpose in the United States? Eckenwiler tried to deflect the question, saying he couldn’t speak to “future hypotheticals,” but finally acknowledged, “Yes, your honor. It can be used constitutionally for that purpose.” For those concerned about what the government might do with the data in your pocket, that was not a comforting answer.

Posted by James on Tuesday, February 23, 2010