Cell Phone Surveillance?

By William Fisher

If you own a cell phone, you should care about the outcome of a court case that “could well decide whether the government can use your cell phone to track you — even if it hasn't shown probable cause to believe it will turn up evidence of a crime.”

That was the warning issued to the public by several major civil liberties organizations as they appeared in federal court in Philadelphia to argue for more privacy protections in the use of cell phones as tracking devices by law enforcement agents.

The case is at the heart of the Constitutional crisis now being played out in the US federal court. Civil liberties groups are asking the court to require that the government show probable cause before it can track your whereabouts.

The groups are the Electronic Frontier Foundation (EFF), the American Civil Liberties Union (ACLU), the ACLU of Pennsylvania, and the Center for Democracy and Technology (CDT).

Back in 2007, the U.S. government applied for court permission to obtain information about the location of an individual's cell phone, without showing probable cause that tracking the individual would turn up evidence of a crime. A magistrate judge denied the government's request and a district court upheld that decision in September 2008. The government is appealing the ruling in the U.S. Court of Appeals.

A number of civil liberties groups, on behalf of plaintiffs in the case, filed a friend-of-the-court brief in support of the district court decision, arguing that district courts must require the government to show probable cause before permitting the government to obtain information about the location of a cell phone.

The appeals court will decide whether government agencies in Pennsylvania, New Jersey and Delaware must show probable cause before tracking people's cell phone locations.

EFF explains that, although most people don't realize it, cell phones double as tracking devices. “Newer phones contain GPS chips, the same technology that allows car navigation systems to know where you are and give you driving directions. But even older phones that don't have chips can be tracked by knowing the location of the cell towers they use to connect to a network,” the group said, adding,

“There's no question that cell phones and cell-phone records can be useful for police officers who need to track the movements of those they believe to be breaking the law. And it is important for law enforcement agents to have the tools they need to stop crimes. However, it is just as important to make sure such tools are used responsibly, in a manner that safeguards our personal privacy.”

And Professor Francis A. Boyle of the University of Illinois law school told us, “This practice violates the Fourth Amendment to the United States Constitution: ‘no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched....’ The Bush administration reduced the Fourth Amendment to nothing more than a Potemkin Village of rights. It exists on paper alone. And a pusillanimous Congress has gone along with shredding the entirety of the U.S. Bill of Rights.”

He added, “President Obama, the former constitutional law professor, is actively defending in court every hideous atrocity that the Bush administration inflicted upon the Bill of Rights, civil rights, civil liberties, human rights, international law, and the United States Constitution with the acquiescence and/or approval by Congress.”

This issue gained national attention during last year's gubernatorial race in New Jersey. Documents turned over in EFF’s lawsuit revealed that “the U.S. Attorney's Office — under Chris Christie, now the governor — was tracking cell phones without probable cause, in violation of a Justice Department recommendation,” EFF said.

The decision reached by the Philadelphia-based 3rd Circuit U.S. Court of Appeals will not only bind federal courts throughout Pennsylvania, New Jersey, and Delaware. It will also be a key source of guidance to courts around the country as they grapple with this issue.

The plaintiffs in the court case hope the court will “send a message that merely carrying a cell phone should not make people more susceptible to government surveillance.”

They add, “No one wants to feel as if a government agent is following her wherever she goes — be it a friend's house, a place of worship, or a therapist's office — and innocent Americans shouldn't have to feel that way.”

The government has argued that "One who does not wish to disclose his movements to the government need not use a cellular telephone." But the civil liberties groups say this is “a startling and dismaying statement coming from the United States. The government is supposed to care about people's privacy. It should not be forcing the nation's 277 million cell-phone subscribers to choose between risking being tracked and going without an essential communications tool.”

The case has drawn considerable national attention. One of the country’s foremost investigative journalists, Michael Isikoff of Newsweek, addressed the issue in a recent edition of the magazine.

He wrote, “Law enforcement is tracking Americans' cell phones in real time -- without the benefit of a warrant. Amid all the furor over the bush administration's warrantless wiretapping program a few years ago, a mini-revolt was brewing over another type of federal snooping that was getting no public attention at all.”

“Federal prosecutors were seeking what seemed to be unusually sensitive records: internal data from telecommunications companies that showed the locations of their customers' cell phones -- sometimes in real time, sometimes after the fact. The prosecutors said they needed the records to trace the movements of suspected drug traffickers, human smugglers, even corrupt public officials. But many federal magistrates -- whose job is to sign off on search warrants and handle other routine court duties -- were spooked by the requests. Some in New York, Pennsylvania, and Texas balked, he wrote.”

“Prosecutors ‘were using the cell phone as a surreptitious tracking device,’ said Stephen W. Smith, a federal magistrate in Houston. "And I started asking the U.S. Attorney's Office, 'What is the legal authority for this? What is the legal standard for getting this information?' Those questions are now at the core of a constitutional clash between President Obama's Justice Department and civil libertarians alarmed by what they see as the government's relentless intrusion into the private lives of citizens.”

Two years ago, a U.S. magistrate in Pittsburgh ruled that the data they were seeking could easily be misused to collect information about sexual liaisons and other matters of an "extremely personal" nature.

In federal appeals court last week, a Justice Department lawyer urged the judges to overturn the magistrate’s ruling. They claimed the government was seeking "routine business records."

But after one of the judges said there were some governments, like Iran's, that would like to use such records to identify political protesters. She asked whether the “government can assure us” that the Justice Department would never collect cell-phone data for this kind of use in the U.S.

The government lawyer grudgingly acknowledged that such data “could be used constitutionally.”