Feds routinely seek phone-tracking info
WASHINGTON - Federal officials routinely are asking courts to order cellphone companies to furnish real-time tracking data so they can pinpoint the location 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 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.
Such requests run counter to the Justice Department’s internal recommendation that federal prosecutors seek warrants based on probable cause to obtain precise location data in private areas. The requests and orders are sealed at the government’s request, so it is difficult to know how often the orders are issued or denied.
The issue is taking on greater relevance as wireless carriers race to offer services that allow cellphone users to know with the touch of a button where their friends or families are.
The companies are hoping to recoup investments they have made to meet a federal mandate to provide enhanced 911 (E911) location tracking. Sprint Nextel, for instance, boasts that its “loopt” service even sends an alert when a friend is near, “putting an end to missed connections in the mall, at the movies or around town.”
With Verizon’s Chaperone service, parents can set up a “geofence” around, say, a few city blocks and receive an automatic text message if their child, holding the cellphone, travels outside that area.
Pocket “tracking device”
“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 an opinion this month, a federal judge in Texas denied a request by a Drug Enforcement Administration (DEA) 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 cellphone’s GPS chip or triangulated radio signals sent from phones to cell towers.
Magistrate Judge Brian 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.
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.
Last month in a southwestern state, an FBI agent obtained a location 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 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.
“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 (FCC). 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.
“Locate criminal targets”
Gidari, who also represents CTIA, said he has never seen such a request that was based on probable cause.
Justice Department spokesman Dean Boyd said field attorneys should follow the department’s policy.
The phone data can home in on a target to within about 30 feet, experts said.
Federal agents used real-time data in October 2006 to track a serial killer in Florida who was linked to at least six homicides in four states. The killer died in a police shooting as he tried to flee.
“Law enforcement has absolutely no interest in tracking the locations of law-abiding citizens. None whatsoever,” Boyd said. “What we’re doing is going through the courts to lawfully obtain data that will help us locate criminal targets, sometimes in cases where lives are literally hanging in the balance.”
In many cases, orders are being issued for cell-tower site data, which are less precise than the data derived from E911 signals.
Since 2005, federal magistrate judges in at least 17 cases have denied federal requests for the less-precise cellphone-tracking data absent a demonstration of probable cause a crime is being committed. Some went out of their way to issue published opinions in these otherwise sealed cases.
“Permitting surreptitious conversion of a cellphone 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,” said Judge Stephen William Smith, of the Southern District of Texas, whose 2005 opinion on the matter was among the first published.
But judges in a majority of districts have ruled otherwise on this issue, Boyd said.
The trend’s secrecy is troubling, privacy advocates said. No government body tracks the number of cellphone location orders sought or obtained. And precise location data will be easier to get if the FCC adopts a Justice Department proposal to make the most detailed GPS data available automatically.