Warrantless cell phone tracking is everywhere
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A new report from the American Civil Liberties Union says that law enforcement agencies are frequently using cell phone tracking information provided by wireless carriers. The group submitted freedom of information requests to law enforcement groups around the country and while many did not reply, about 200 did provide details on practices and almost all of them indicated that they do track people as part of investigations.
“Turns out, it doesn’t have to be big police department,” says ACLU staff attorney Catherine Crump, “even small police departments are engaging in cell phone tracking, often without a warrant.”
Crump says police are interesting in figuring out where people go and what they do and that the information is readily available. “At the narrow end, they could for example be tracking one individual’s movements,” she says, “either in real time as they travel around the city, or they’re obtaining records from cell phone companies about someone’s records tracking back to the past. One of the things we found was a document that showed how long the different cell phone companies keep people’s location information, and most companies store your personal location information, where you’ve been in the past, for at least a year.”
While the cell phone angle is certainly new, Paul Ohm of the University of Colorado Law School says the theory isn’t. “This is the kind of information that the police going back to antiquity probably would have loved to have been able to obtain,” he says.
The cell phone, which is always reporting in its position to the network in order to function, is of great use to investigations. “It basically lets you plant a virtual cop on a tail around any target that you may want to,” Ohm says.
I asked Ohm what kinds of cases police might be working on where they’d track a cell phone. “So I worked at the Justice Department five or six years ago,” he says, “and even then, we started to see this increasingly with drug cases, fugitive cases, kidnapping cases, anytime you want to keep tabs on the location of a target or a suspect, or even a victim, this can be a very useful tool.”
So let’s say you’re a cop and you’re investigating a drug case. You have a suspect in mind but you also want to know about everyone that suspect comes into contact with. “You may learn about three or four other people and you want to track them around town as well,” Ohm says. “Well, it may be that you don’t actually have probable cause that conspirator 4, conspirator 5 is part of the conspiracy, or is committing illegal activity at the time, and so law enforcement would want a tool that would let them with a little bit less than probable cause, which is the constitutional standard, track other people as well.”
Law enforcement agencies are getting around that probable cause requirement in a number of ways, says Crump. “What we found is that in some cases, law enforcement does go to court, but they don’t get a full warrant,” she says, “They just show that something is relevant to an investigation, which is a much lower standard. Or, in the worst case scenario, they’re not going to a court at all. They’re just tracking people with no judicial supervision.”
And as for the national legal standard about how cell phones ought to be handled by police, Ohm says there isn’t one. He says, “When it was just a couple of federal agencies really doing this, we could at least hope that there’d be centralized accountability. Now when you unleash hundreds of agencies across the country, you should begin to worry a lot more about the one agency that really doesn’t know what they’re doing and tramples on civil liberties. There is no uniform law that governs and protects location privacy in this country.”
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