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How Police Track Your Phone
Law enforcement personnel, in many cases, don’t need permission to track you. Is this a violation of your privacy? Find out.
Wherever you roam, you don’t roam alone. Cell phones are easily and frequently tracked to perform services for their owners. But outside parties may also take an interest in where phones—or, more specifically, their owners—go. Among them are law enforcement personnel of all levels who, in many cases, don’t need so much as the permission of a governing authority to do the tracking.
Last week, Senator Al Franken asked Attorney General Eric Holder in an open letter to make public how frequently the Department of Justice requests the locations of individuals from wireless carriers without a warrant, how often the carriers comply, what specific information is requested, and the cost of the information.
If that seems like intelligence that would be readily and freely accessible to Congress because of a rule of law, it’s not. And the Department of Justice isn’t alone in operating outside strictures when it comes to cell phone tracking. Even the smallest of municipalities are, by and large, fashioning their own rules in states that don’t specifically prohibit warrantless cell phone tracking.
The problem stems from communications laws that go back to the days of the telegraph and the diversity of court rulings that result from their interpretation.
What Warrants a Warrant
More often than not, of the legal canon it’s the Electronic Communications Privacy Act (ECPA) that is turned to for guidance when the legalities of cell phone tracking are in question. Written in 1986, the act is made up of three parts but is often sliced and diced into even more segments when a decision is needed. In general, the ECPA is meant to protect communications that are in transit or stored and prohibits the use of devices that carry out or violate either of those provisions without a court order.
Because cell phone tracking is not something that’s monitored, hard numbers don’t exist. Still, the ease of the practice, the flexible legal standards, and the high yields it can bring led more than 200 law enforcement agencies to confess the practice to the American Civil Liberties Union (ACLU). Some even admitted that they did not seek out a warrant.
Since 2005, federal magistrate judges, fueled by two of their own—Stephen Smith of the southern district of Texas and Lisa Lenihan of the western district of Pennsylvania—have tried to hold back the tide of warrantless cell phone tracking, according to the Wall Street Journal.
“Americans do not generally know that a record of their whereabouts is being created whenever they travel about with their cellphones,” the WSJ quotes a joint decision by Magistrate Lenihan and colleagues. “Most Americans would be appalled by the notion that the government could obtain such a record without at least a neutral, judicial determination of probable cause.”
Probable cause is the standard for obtaining a warrant for a search. It’s enshrined in the Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
What constitutes a search is whether or not the person who is the subject of the investigation had a reasonable expectation of privacy. Not only does the Fourth Amendment protect those searched, but it looks out for the interests of those enforcing the law since it serves as the standard for a grand jury to conclude that a crime has been committed.
As the ACLU findings demonstrate, however, warrants were sought in few cases so probable cause wasn’t an issue. Though in some municipalities—such as North Las Vegas and Honolulu—that track cell phones, warrants are a part of the investigative process. “The fact that some law enforcement agencies do get warrants shows that a probable cause requirement is a completely reasonable and workable policy, allowing police to protect both public safety and privacy,” said Catherine Crump, staff attorney for the ACLU Speech, Privacy and Technology Project, in a statement.
The ACLU, Franken, and others are looking to a ruling the Supreme Court issued in January in United States v. Jones to remedy inconsistencies and injustices. Though the case deals with GPS devices rather than cell phones, it may have implications for the latter since there are many technological- and privacy-related parallels.
In the case, the FBI was tracking the movements of suspected drug dealer Antoine Jones with a GPS device affixed to a Jeep Grand Cherokee, for which it did not obtain a warrant. While Jones was initially convicted on evidence obtained against him (the only way a person can ascertain that they’ve been tracked is if charges are brought against them and the evidence is used in court), the case was appealed and eventually went before the Supreme Court. In a 5-4 decision, the court’s ruling focused on the reasonable expectation of privacy test, making it a viable hope for those who would like to see it applied to cell phone tracking since Americans expect their cell phone communications to be free of law enforcement monitoring.
Franken, in his letter, applauded the Jones decision as a “watershed for Americans’ privacy and civil liberties” while he challenged the Justice Department to live up to it in regard to cell phone tracking. “I was very concerned to read recent reports suggesting that state and local law enforcement agencies may be working around the protections of Jones by requesting the location records of individuals directly from their wireless carriers instead of tracking the individuals through stand-alone GPS devices installed on their vehicles,” Franken wrote. “I was further concerned to learn that in many cases, these agencies appear to be obtaining precise records of individuals’ past and current movements from carriers without first obtaining a warrant for this information. I think that these actions may violate the spirit if not the letter of the Jones decision.”
This disparity between the Supreme Court and the administration on this issue may be a philosophical one. At the Congressional Internet Caucus Advisory Committee’s State of the Mobile Net Conference earlier this month, Deputy Assistant Attorney General Jason Weinstein asked for Congress to “clarify the legal standard” but in a way that would be diametrically opposed to Jones. Weinstein said warrants would “cripple” prosecutors and law enforcement officials.
However, just as the Fourth Amendment shields the investigated and the investigators, cementing a legal process for cell phone tracking would ensure a standard of justice and prevent criminals from escaping it. Currently, the prosecution of an alleged murderer in Broward County, Florida, is in jeopardy precisely because police tracked the phone of a prime suspect but cannot admit the evidence to court since they did not get a warrant.
Location, Location, Location
As for the actual tracking of cell phones, it can be done in two ways: triangulation, which covers them all, and GPS, which is standard in smartphones. With triangulation, three cell phone towers are used to approximate the location of the cell phone in question. Towers are constantly pinging cell phones to provide service, so a user’s whereabouts and path of travel are easily traceable. Accuracy, however, depends on the density of the cell tower population. GPS, on the other hand, is able to pinpoint a cell phone’s exact location. All of this data resides with wireless providers.
While wireless providers need the information to provide services, their practice of retaining that data has been questioned by the ACLU. This past September, the ACLU released a chart of how long six major providers retain subscriber information, call detain records, cell towers used, text message details (including content), pictures, IP details, and payment histories. Their goal might be to improve services or profit from the data, but part of the latter involves selling it to law enforcement.
Forbes, working from an ACLU-obtained document from a 2009 letter to the Tucson, Arizona police department, published just how much that may come to:
•T-Mobile – flat fee of $500 per target
•Sprint – $400 per market area and per technology, as well as a $10 per day fee (capped at $2,000)
•AT&T – $325 activation fee, plus $5 per day for data and $10 for audio
•Verizon – $50 administrative fee plus $700 per month per target
Data requests for voicemail or text messages:
•AT&T – $150 for access to voicemail
•Verizon – $50 for access to text messages
•Sprint – $120 for pictures or video, $60 for email, $60 for voice mail, and $30 for text messages
“Tower dumps” (numbers of every user accessing a certain cell tower over a certain time at an hourly rate):
•AT&T – $75 per tower per hour, with a minimum of two hours
•Verizon – between $30 and $60 per hour per tower
•T-Mobile – $150 per hour per tower
•Sprint – $50 per tower
Location data (automated, real-time tracking):
•Sprint – $30 per month per target
•AT&T – $100 activation and then $25 a day
•T-Mobile – $100 per day
Some law enforcement agencies get around those fees by purchasing their own cell phone monitoring equipment. Harris Corp. is the maker of much of the tracking hardware on the market. The KingFish and the related StingRay are electronic surveillance transceivers for “tracking, locating, and gathering information from cell phones,” according to a trademark filing. The use of the equipment by police is hard to determine without self-reporting or the seeking of funds to purchase the equipment. In the ACLU request, Arizona’s Maricopa County Sheriff’s Office said that it goes through wireless providers. “The policies that we (MCSO) follow to obtain those records are in place by the cell phone companies themselves,” the reply says. “Although some of the cellular companies vary in general operating policy, the one thing that is consistent is in order to obtain any records from the companies themselves, you need to produce a valid subpoena for each cellular phone number we are interested in.” The department says to obtain a subpoena, “probabal [sic] cause” must be proven. But the WSJ quotes Sergeant Jesse Spurgin as saying the sheriff’s department uses its own cell phone tracking equipment “about on a monthly basis.”
While law enforcement agencies requesting funds list Harris Corp.’s name on their requests, such as in Fort Worth, Texas, Harris does not mutually acknowledge that aspect of its relationship with the industry, leaving its involvement under the heading of “public safety.”
Hardware solutions, like those from Harris Corp., have been one-upped by what’s known as the “roving bug,” a piece of software that can be remotely transferred to a cell phone to turn it into a listening device even when a phone is turned off (removing the battery is the only way to disable it). The FBI copped to its use in court in a case against the Genovese crime family.
While it’s clear the capabilities and use of cell phone tracking technologies continues to grow, the verdict on their application is still out.
By Chandra Steele, PCMag