Nov 14th, 2008
Posted by Rachel Myers, ACLU at 12:55pm	Free Speech, National Security

With Technology Like This, Who Needs the Law?

(Originally posted on Daily Kos.)

The ACLU and Electronic Frontier Foundation have received several batches of Justice Department documents in response to our Freedom of Information Act (FOIA) request (and subsequent lawsuit) for records relating to the government's use of cell phones as tracking devices. What they tell us is that the government doesn't even need the help of a cell phone service provider to track us with our phones. The FBI now has what is called "triggerfish" technology — a cell site simulator that forces cell phones in the area to register its phone number, serial number and location — allowing it to track cell phones on its own. This raises the risk that they will do so without bothering to go to a court for permission first, since they no longer need to compel the provider to cooperate.

The documents do indicate that at least currently, the FBI's standard procedure is to seek a court order before using "triggerfish" to track cell phones. However, when obtaining those court orders — for "pen register and trap and trace" surveillance — the government doesn't show probable cause that a crime has been or is being committed, or even demonstrate to the court that the person being spied on is relevant to an ongoing investigation. The government simply tells the court that it thinks the target is relevant and then the court issues the order, a process offering little protection against the abuse of this powerful surveillance technology. In fact, the Department of Justice documents themselves suggest some government folks might be apprehensive: "The use of a triggerfish to locate cellular telephones is an issue of some controversy." People with questions or concerns are instructed to contact Mark Eckenwiler, Senior Counsel at the DOJ Computer Crime and Intellectual Property Section.

An earlier EFF FOIA lawsuit turned up documents detailing how a little-known FBI telephone intercept unit had developed triggerfish technology that agents use to monitor the physical movements of surveillance targets. Back then it seemed the process required assistance from the provider. But the new documents plainly say that triggerfish surveillance can be done without provider assistance, as at the top of page 18 in this document (PDF): "This can be done without the user knowing about it, and without involving the cell phone provider."

The Washington Post's Ellen Nakashima writes about the renewed call from magistrate judges for Congress to set a consistent legal standard for seeking cell phone tracking information today. All our related documents are here.

CORRECTION: An earlier version of this post mentioned the process of obtaining a pen-trap order from the FISA court. The documents uncovered by the ACLU/EFF FOIA are actually about pen-trap orders in the criminal context, and the second paragraph has been amended to reflect that.

Permalink |	Free Speech, National Security

Tags: national security project

1. Anonymous Says:
   Nov 17th, 2008 at 2:52pm

   Honestly, I don't see the harm in this. My wife's minivan was stolen with her mobile phone (and dog) in it and it took the police and mobile phone carrier 2 days to use the phone GPS to locate the abandoned vehicle. Dog dead from lack of water, van trashed.

   I'd actually *pay* for faster tracking of my mobile phone's location in cases like this..

2. Anonymous Says:
   Nov 17th, 2008 at 5:16pm

   I don’t see the harm in this.

   Are you really saying you don't see a difference between using technology in line with warrants to track a stolen vehicle and using technology to track anyone the government feels like tracking, without any warrants or other oversight at all and without the need for any law-enforcement reason?

3. me Says:
   Nov 17th, 2008 at 10:09pm

   Yep and who cares!

4. Lewis Says:
   Nov 18th, 2008 at 1:19am

   Actually there is very little any one can do to stop the march of the technology. As long as only the Government has access to this technology, there is not much of a problem. What if it falls into the wrong hands ?

   Right now the provider can monitor and extrapolate your cell position and monitor all your conversation if need be.

5. Lonnie Ward Says:
   Nov 18th, 2008 at 7:21am

   Paying for a service implies consent.The question is,as always,who should decide who is informed and aware?

6. james white Says:
   Nov 18th, 2008 at 11:51am

   help pleas

7. james white Says:
   Nov 18th, 2008 at 11:53am

   What is freedom are we realy free

8. S kin Says:
   Nov 18th, 2008 at 7:19pm

   the government is the wrong hands. hello big brother

9. James Says:
   Dec 1st, 2008 at 12:47am

   Does anyone feel that it is hypocritical and ironic that the ACLU, in a measure intended to guard privacy, is using the Freedom of Information Act to gain access to private records? According to the ACLU's complaint, the documents contain “unwarranted invasion of personal privacy.” Does the ACLU have no respect for the law?

10. duh Says:
    Feb 18th, 2009 at 12:35pm

    uhhhhh...so I take it most of the people who commented on here are brain-less, or completely decieved into thinking the govt is on our side and they really want what's best for us...or they are govt-spies.
    Yeah Big Brother! Thanks for your ever-present helping hand!

11. jjhjjj Says:
    Apr 11th, 2009 at 5:53am

    i want this program

12. Anonymous Says:
    Nov 27th, 2009 at 10:42am

    nice article!
    website design

13. Anonymous Says:
    Nov 27th, 2009 at 10:44am

    nice points there
    website design

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