I’ve suspected something like this for a long time but as usual, it’s depressing to see yet another civil liberty confirmed taken away from us.
Federal officials are routinely asking courts to order cellphone companies to furnish real-time tracking data so they can pinpoint the whereabouts of drug traffickers, fugitives and other criminal suspects, according to judges and industry lawyers.
In some cases, judges have granted the requests without requiring the government to demonstrate that there is probable cause to believe that a crime is taking place or that the inquiry will yield evidence of a crime. Privacy advocates fear such a practice may expose average Americans to a new level of government scrutiny of their daily lives.
In other words, if you have a cell phone, the government can use it to track you in real time. Not only can they do this, but they do this even without evidence of a crime. They just say “We want this tracking data.”
Using these in connection with finding an obvious criminal fugitive is one thing. Using it just to track people because they might be doing something unsavory is illegal.
As the government has said, “change your definition of privacy.” You have none in this country. The enablers will say that “well if you aren’t being a criminal, you have nothing to worry about.”
What if somebody on your cell phone list calls somebody connected through the government’s Six Degrees Of Being A Terrorist program? Ooops, you’re a suspect now. You’re subject to your own government spying on you now. You’ve done nothing wrong, but the government can and will track your every location that you and your cell phone go to.
Maybe they’ll track everybody that’s ever called your cell phone, too. Your family, your friends, your boss, the nice neighbor lady next door who lets your cat out. You’re being lo-jacked. Hey, you might be a terrorist.
Pretty soon, we’re all potential terrorists. Innocent until proven guilty is antiquated, 9/10 thinking. We’re simply a nation of potential suspects. But people are fighting it.
“Most people don’t realize it, but they’re carrying a tracking device in their pocket,” said Kevin Bankston of the privacy advocacy group Electronic Frontier Foundation. “Cellphones can reveal very precise information about your location, and yet legal protections are very much up in the air.”
In a stinging opinion this month, a federal judge in Texas denied a request by a Drug Enforcement Administration agent for data that would identify a drug trafficker’s phone location by using the carrier’s E911 tracking capability. E911 tracking systems read signals sent to satellites from a phone’s Global Positioning System (GPS) chip or triangulated radio signals sent from phones to cell towers. Magistrate Judge Brian L. Owsley, of the Corpus Christi division of the Southern District of Texas, said the agent’s affidavit failed to focus on “specifics necessary to establish probable cause, such as relevant dates, names and places.”
Owsley decided to publish his opinion, which explained that the agent failed to provide “sufficient specific information to support the assertion” that the phone was being used in “criminal” activity. Instead, Owsley wrote, the agent simply alleged that the subject trafficked in narcotics and used the phone to do so. The agent stated that the DEA had ” ‘identified’ or ‘determined’ certain matters,” Owsley wrote, but “these identifications, determinations or revelations are not facts, but simply conclusions by the agency.”
The government simply will ignore this. In fact, they already are.
Instead of seeking warrants based on probable cause, some federal prosecutors are applying for orders based on a standard lower than probable cause derived from two statutes: the Stored Communications Act and the Pen Register Statute, according to judges and industry lawyers. The orders are typically issued by magistrate judges in U.S. district courts, who often handle applications for search warrants.
In one case last month in a southwestern state, an FBI agent obtained precise location data with a court order based on the lower standard, citing “specific and articulable facts” showing reasonable grounds to believe the data are “relevant to an ongoing criminal investigation,” said Al Gidari, a partner at Perkins Coie in Seattle, who reviews data requests for carriers.
Another magistrate judge, who has denied about a dozen such requests in the past six months, said some agents attach affidavits to their applications that merely assert that the evidence offered is “consistent with the probable cause standard” of Rule 41 of the Federal Rules of Criminal Procedure. The judge spoke on condition of anonymity because of the sensitivity of the issue.
“Law enforcement routinely now requests carriers to continuously ‘ping’ wireless devices of suspects to locate them when a call is not being made . . . so law enforcement can triangulate the precise location of a device and [seek] the location of all associates communicating with a target,” wrote Christopher Guttman-McCabe, vice president of regulatory affairs for CTIA — the Wireless Association, in a July comment to the Federal Communications Commission. He said the “lack of a consistent legal standard for tracking a user’s location has made it difficult for carriers to comply” with law enforcement agencies’ demands.
Gidari, who also represents CTIA, said he has never seen such a request that was based on probable cause.
Got that? A lower standard of probable cause. The government mandates that cell phone carriers have to maintain this real-time tracking data “for public safety.” Then they declare that because the carriers are doing this, then the government has full rights and access to this data. This dangerous precedent means that thousands of companies that collect data on Americans are according to the government actually contractors in the “public safety” business and should be forced to turn over that data when the government deems it necessary.
Government mandates companies collect data on you. Government wants that data. Government uses it against whomever it wants to, whenever it wants to. End of line.
Your privacy is a commodity on sale to the highest bidder. And in the end the highest bidder is the government.
