Why cell-phone tracking should require a warrant

by James Temple, San Francisco Chronicle

Tony Antolino of Rye, N.Y. talks on his cell phone while …

The American Civil Liberties Union released a troubling report this past weekend demonstrating that law enforcement agencies around the nation routinely track personal cell phones, often without warrants. Conspicuously absent from the survey was information about the tactics of Northern California police departments.

That’s because, among the roughly 20 local agencies that received open records requests, only a handful provided substantive responses, said Linda Lye, staff attorney at the ACLU of Northern California. The rest declined to shed light on their practices, she said.

"The process of surveilling the public with these highly invasive methods is shrouded in secrecy," Lye said. "The public has a right to know what processes the government is following, and whether it strikes the appropriate balance between privacy and legitimate law enforcement needs."

The national ACLU investigation, first reported by the New York Times, found that of the hundreds of agencies that responded, most acknowledged tracking cell phones, often frequently. Only a small number of those, however, consistently obtained a warrant and demonstrated probable cause, the ACLU said.

The tracking takes various forms. It includes tapping into GPS information in emergency situations in order to locate missing children or stranded hikers, a practice that few find troubling. But departments also direct phone carriers or mobile software companies like Google and Apple to provide location information, texts and data for surveillance and other purposes related to criminal investigations.

The concern among the ACLU and privacy experts is that law enforcement agencies often act with little or no court oversight, independently deciding what justifies prying into someone’s digital domain.

"A probable cause standard is what’s required to protect Americans, and it’s what’s required under the Constitution," said Catherine Crump, staff attorney for the ACLU.

Two police departments that provided fuller responses to the ACLU of Northern California’s information requests were San Francisco, which said it does seek search warrants, and Sacramento, which at least secures court orders. (More on the difference in a moment.)

Documents reviewed

Information from the ACLU of Southern California also didn’t make the initial national report, but the organization allowed The Chronicle to review the raw documents it received. In one eye-catching example, the Irvine Police Department turned over a series of internal training documents from the California District Attorneys Association, NTI Law Enforcement Systems and Services and others.

NTI materials described how to pressure phone companies to give text message data.

"Thy (sic) will tell you it can’t be done or they may tell you they just won’t do it. Don’t believe them; it can be done; you just have to exert the proper amount of legal and ‘other’ force." NTI provides training for law enforcement on acquiring and analyzing telephone data, based on what can be found online. It’s based in New Hampshire. A call to the company wasn’t returned.

The NTI materials go on to suggest getting the phone company to help "clone" a cell phone, so that investigators can intercept a text message while the intended recipient’s phone is turned off.

Another document obtained from Irvine included templates for demanding cell phone data from Apple, Google and others. One example included a fill-in-the-blank line about the phone in question, followed by this instruction: "It is hereby further ordered that Apple shall assist law enforcement in searching the cell phone, assistance that shall include, but is not limited to, bypassing the Cell Phone user’s passcode."

So far, the few court cases addressing the legality of phone tracking have provided limited or contradictory guidance, so the precise legal boundaries in this area remain unclear. Different departments employ different standards.
Best practices

A few agencies consistently seek warrants before trying to access cell phone information, apparently including San Francisco, which the ACLU points to as evidence that all departments could follow those practices. But most agencies only secure court orders, if anything. These are more easily obtained and include fewer protections for the subjects of investigations.

Approval for some court orders only requires the search be "relevant" to an investigation. In some cases courts are actually obligated to sign off so long as applications are filled in properly, said Susan Freiwald, professor at University of San Francisco School of Law, who has worked on several of the major cases in this area.

Warrants, on the other hand, limit the search to information relevant to the investigation. Warrants also require notifying the subject at some point and provide some recourse for those searched improperly or unjustly.

There was no indication in the ACLU report that police departments were engaged in warrantless wiretapping to listen in on voice conversations – likely since there’s a far larger body of law restricting such practices (the occasional National Security Agency secret program notwithstanding). But in a world where a growing portion of people leave behind digital footprints of their daily routines, it increasingly seems like an arbitrary distinction.

"These very detailed pictures of your movement and behavior are available with a very low standard of review," Freiwald said.

The ACLU also turned up catalogs from cell phone carriers explaining procedures and pricing for turning over location data. In a statement, Sprint stressed that any charge is only a cost recovery fee. It insisted that it only provides law enforcement information without a warrant in circumstances like a kidnapping or missing persons case, as allowed under U.S. law.

Other major carriers also stressed they comply with all relevant laws.
Cause for concern

So if cell phone users haven’t done anything wrong, why should they care about any of this? Because this nation has a shameful legacy of domestic surveillance abuse.

Some of the starkest evidence comes from the Church Committee, a Senate committee created to investigate domestic intelligence gathering in the aftermath of Watergate. Its report concluded that the Federal Bureau of Investigation regularly conducted probes of U.S. citizens "under criteria which more nearly resembled political or social labels than standards for governmental action."

Among the targets: "a wide variety of university, church and political groups opposed to the Vietnam war; Martin Luther King’s Southern Christian Leadership Conference; the National Association for the Advancement of Colored People; the National Organization for Women;" and "virtually every group seeking peaceful change in the United States."

"Without the firm guidance provided by law, intelligence activities intruded into areas of American life which are protected from governmental inquiry by the constitutional guarantees of personal privacy and free speech," the committee report said.