< Tracking Us All


Friday, March 05, 2010

BOB GARFIELD: The cell phone that you’re carrying right now is also a tracking device. As you move from place to place, your phone communicates with cell towers, allowing companies like AT&T and Verizon to locate you, often within a few hundred feet. Those coordinates get stored for a time. And while your phone company may not care where you were on some specific night last month, your government might. Law enforcement officials routinely access cell phone records of say suspected criminals, often without probable cause. All they need is a judge willing to sign a warrant. But a couple of years ago, a U.S. magistrate in Pennsylvania took a stand and refused the Justice Department access to phone records in a federal drug case, because investigators could not show probable cause. Just a few weeks ago, the Justice Department challenged that decision before the Third Circuit Court of Appeals in Philadelphia. Kevin Bankston is a senior staff attorney for the Electronic Frontier Foundation, which argued against the Justice Department. He says that Justice was trying to bolster its case with a couple of Supreme Court precedents from the 1970s.

KEVIN BANKSTON: First, one called Smith v. Maryland, which dealt with government surveillance of the numbers that you dial on the phone and who dials you. And the Supreme Court held that because you directly conveyed that information to the phone company, that you assumed the risk that they would hand it over to the government. This decision followed a similar precedent where the Supreme Court held that you don't have any expectation of privacy in the records that the bank has about your transactions because, again, you directly conveyed that information to the bank and you assumed the risk they’d hand it over to someone else. The government’s argument, as absurd and dangerous as it sounds, is that when the 277 million cell phone users in this country bought their phones, they were knowingly and voluntarily trading their location privacy for the right to avail themselves of a modern necessity, the cell phone.

BOB GARFIELD: Kevin, permit me to play devil’s advocate here. The police have always had to require a court order to put a wiretap in place, for example, but they have never needed one to, you know, follow you around, to put you under surveillance, to stake you out. In what way is ascertaining your location via cell phone records different from doing it with two cops in an unmarked car, drinking coffee and eating doughnuts?

KEVIN BANKSTON: To say that this is akin to just cops tailing a suspect is to ignore the power of this surveillance technique to follow people into even spaces that the police could not follow them into, be it their home or a business. There’s a limit to what two cops in a car can do. There is no limit to how this technology could be used to track citizens.

BOB GARFIELD: Okay, that’s with doughnuts, but what about with chili dogs?

KEVIN BANKSTON: Chili dogs might speed ‘em up a bit.

BOB GARFIELD: [LAUGHS] Now that so many Americans have GPS installed in their cell phones, it would seem to me that the government has access to even more granular data about not only where you were but where you are right now.

KEVIN BANKSTON: Absolutely. Every new phone today has a GPS chip, and with that chip the phone company can locate you down to just a few meters, in many cases. At a security and surveillance conference a few months ago, the Sprint electronic surveillance manager admitted that law enforcement was making such extensive use of this capability that Sprint had set up essentially a Web portal for law enforcement to go to, to ping cell phones to find their location based on GPS. He said that that website had been used eight million times over a one-year period. Basically, through our purchases of cell phones, we American consumers are building the technical infrastructure for a surveillance network that’s so extensive and pervasive that even Orwell or J. Edgar Hoover, for that matter, could not have dreamt it up. We're not saying that this information can never be used in a criminal investigation or to say, you know, locate a kidnapped child or act in another emergency. But we need to make sure that there are appropriate checks and balances so that this capability, which is incredibly powerful, is not abused.

BOB GARFIELD: Assuming the Third Circuit upholds the magistrate’s decision, based on the trajectory of the Supreme Court over the last number of years, what do you think is apt to happen should the government appeal it there?

KEVIN BANKSTON: Well, I believe the government almost certainly would appeal if it does lose at the appellate level. I can't predict what the Supreme Court would do, but I think it’s worth highlighting a rather incisive question that came from one of the judges in the Third Circuit in Philadelphia a couple of weeks ago. Judge Sloviter on the panel noted to the government that there are many governments that would be very happy to have this kind of surveillance capability and use it to track political dissidents. She noted Iran as an example. And she asked the government’s lawyer, can you represent to me that this is something that the U.S. government would not do and could not do legally? And the government lawyer said, well, I can't speak to hypotheticals, so I can't say we wouldn't do it, and, yes, I think that would be constitutional. And so, I think that highlights the potential for abuse, the potential for political abuse posed by this technology, so if this does go to the Supreme Court, we will vigorously argue it, and we are hopeful of a good result.

BOB GARFIELD: Well, Kevin, thank you very much.

KEVIN BANKSTON: It was my pleasure.


BOB GARFIELD: Kevin Bankston is senior staff attorney for the Electronic Frontier Foundation.