Blog of Rights

The Spy in Your Pocket

By Nicole Ozer, Technology & Civil Liberties Policy Director, ACLU of Northern California at 2:08pm

What do your cell phone and the current trial of 26 Americans, many CIA agents, in an Italian court for the 2003 kidnapping of Muslim cleric Abu Omar have to do with each other? Both your phone and the phones of undercover CIA agents act as silent trackers, constantly transmitting physical location. Italian police combed through 2,000 cell phone calls made over a 2 1/2-hour period around the spot where the cleric was abducted. Those records revealed that calls were made to an undercover CIA officer at the U.S. Embassy in Rome. This cell phone evidence is being used to link the CIA to the kidnapping.

This case provides a rare glimpse of a powerful investigative tool that is now routinely used by law enforcement and intelligence agencies, worldwide.

The Italian police used cell phone location information and call record data-mining in this case to try to enforce accountability. But, the Italians are not the only ones combing through masses of cell phone records.

Back here in the United States, it is already public knowledge that the NSA is siphoning off a copy of telecommunications traffic and engaging in warrantless wiretapping of Americans. Federal officials and local police are also increasingly asking courts to order cell phone companies to not only provide call record data, but also furnish real-time location tracking information on their customers.

And if the target is not making calls and sending back location information to the cell towers, law enforcement is also asking the cell phone companies to help them along by continuously “pinging” (PDF) the suspects’ phones. This causes the customer’s mobile phone to send back location information so that police can locate the device.

Many law enforcement requests argue that the police should not be required to show probable cause and obtain a warrant in order to get location information. Rather, they argue, it should be enough to claim to the court that the data will be "relevant and material" to a criminal investigation. A New York judge approved a request for cellular location data and wrote that (PDF) because the government did not install the "tracking device" and the user chose to carry the phone and permit transmission of its information to a carrier, no warrant was needed. Without having to show probable cause to suspect someone has, or is planning to commit a crime, there is a significant potential for fishing expeditions.

Judge Stephen William Smith of the Southern District of Texas was amongst the first to publicly chastise the police for requesting location information without showing probable cause, stating that (PDF) “permitting surreptitious conversion of a cell phone into a tracking device without probable cause raises serious Fourth Amendment concerns especially when the phone is in a house or other place where privacy is reasonably expected." Since his decision, judges in at least 16 other cases have rejected government requests for location information when the police were unable to provide “probable cause” that a crime had been committed.

Digital technology has brought many fantastic benefits to consumers. We must be careful in embracing these new devices, that we do not place our privacy and civil liberties at risk. The use of location tracking information is undoubtedly a potent tool in the arsenal of law enforcement agents. However, such powerful tools must be tightly coupled with strong oversight to prevent abuse.

To read regular blog posts about the intersection between technology and civil liberties, please visit Bytes and Pieces at the ACLU of Northern California at www.aclunc.org/tech.

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