TEXT OF INTERVIEW
Bob Moon: All you conspiracy theorists, listen up. Imagine a world where all of us are bugged willingly, and the government doesn’t even need a good reason to keep track of that homing device in your pocket. Hollywood keeps telling us it’s possible — as in this scene from the movie “Enemy of the State:”
Edward “Brill” Lyle: The government’s been in bed with the entire telecommunications industry since the ’40s. They’ve infected everything. They get into your bank statements, listen to your phone calls. Every wire, every airwave. The more technology you use, easier it is for them to keep tabs on ya.
Like, say, your cell phone? That was the subject of a court hearing in Philadelphia today with the government arguing it has no need to show probable cause of a crime to track your cell phone location.
Declan McCullagh writes about this today for CNet.com and joins us now. And Declan where are you or do I have to find that out from the government?
Declan McCullagh: You could, or at least my cell phone provider. But I’m here at CNET in San Francisco.
Moon: OK, I have this cell phone in my pocket. What can it tell the authorities about where I am and what I’m doing?
McCullagh: It basically is a homing beacon in your pocket that can, if someone is watching, disclose your whereabouts. It knows where it is to a pretty fair approximation. It can be within 10, 20 feet nowadays.
Moon: So what is the government arguing that they should be able to do here?
McCullagh: There are kind of two different issues here. The first is what is called “retrospective location information,” that is, where your cell phone has been in the past. And cell phone providers tend to keep this information for about a year, showing what calls were made and where the phone was when those calls were made.
And there’s also the second question of data showing where you are in the future; in other words, live, moment-by-moment tracking. The DEA was able to use this in Texas to track a car that was driving down the highway. So there’s these two separate questions, but in neither case do federal prosecutors think that a search warrant backed by probable cause is necessary.
Moon: Well, I’m going to take a wild stab here and guess that civil liberties folks don’t like that very much. What’s their complaint?
McCullagh: You are correct about that. They are making sort of a two-fold argument. The first is that under the text of the federal law that supposedly protects our privacy in this area, judges can require a search warrant if they so choose. Now, this federal law was written in 1986. Nobody anticipated this. The second argument they’re making is, they’re saying that the Fourth Amendment prohibits the government from engaging in unreasonable searches and trying to find out where Americans are, both historically and in the future, is an unreasonable search. Or at the very least, you’re going to need a search warrant do that.
Moon: Well, let me have you consult your internal GPS and give me your best guess of where this is all headed.
McCullagh: I think what’s going to happen, in the short term, the courts are going to say that for historical location information no warrant is required, but for prospective or future tracking, a warrant is necessary. But — and this is the bigger deal here — that in the next few years, we’re going to see a new way of looking at the Fourth Amendment. The amount of information that can be gathered because of technology is so immense, that this is going to require the Supreme Court to take a hard look at some of its precedents from the 1970s that were created, handed down long before people even thought of iPhones and cellular tracking.
Moon: Declan McCullagh is keeping track of all this at CNET.com. Thanks for joining us.
McCullagh: My pleasure.
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