By Declan McCullagh | CNet News | June 22, 2010
To nab a pair of men accused of robbing banks in Connecticut, court documents show the FBI turned to a novel investigative technique last year: warrantless monitoring of the locations of about 180 different cell phones, court documents show.
The FBI obtained a secret order--it has not been made public--commanding nine different telephone companies to provide federal police "with all cell site tracking data and cell site locator information for all incoming and outgoing calls to and from the target numbers."
But because the U.S. Justice Department did not obtain a warrant by proving to a judge that there was probable cause to suspect criminal activity, there's now a risk that the evidence from the location surveillance may be tossed out of court as illegally obtained. (Here's a list (PDF) of the phone numbers tracked.)
An attorney for Luis Soto, one of two brothers accused of stealing about $90,000 from Webster Bank and New Alliance Bank, asked a Connecticut judge on May 18 to suppress the location information, saying "the government obtained information that could be used to track the movements and locate the whereabouts at specific times of up to 180 people." That violates their Fourth Amendment right to be free from unreasonable searches, Soto said.
On Friday, the ACLU and the Electronic Frontier Foundation submitted a friend-of-the-court brief (PDF) agreeing with the defense. It says: "Because cell site location information implicates an expectation of privacy that society is prepared to recognize as reasonable, the Fourth Amendment requires that the government obtain a warrant based on probable cause prior to collecting this information."
This amounts to "dragnet" surveillance of the whereabouts of American citizens not suspected of crimes, says Catherine Crump, an attorney with the ACLU's speech, privacy, and technology program.
The Obama administration has argued that no search warrants are needed; it says what's needed is only a 2703(d) order, which requires law enforcement to show that the records are "relevant and material to an ongoing criminal investigation." Because that standard is easier to meet than that of a search warrant, it's less privacy-protective.
In the Connecticut bank robbery case, the Justice Department has not yet directly replied to Soto's motion. But earlier papers that prosecutors filed say that "the government selected the numbers in its cell site order by looking at the telephone numbers calling and being called by the known phone numbers at or around the time of each robbery."
"For each call the records provide a cell tower number," the government's brief says. "The cell tower number can then be looked up in other certified records, which gives a latitude and longitude for the tower location. Then any publicly available mapping tool (the government has used Google Maps) can be used to find the location of the tower."
In that case, the Obama administration has argued that warrantless tracking is permitted because Americans enjoy no "reasonable expectation of privacy" in their--or at least their cell phones'--whereabouts. U.S. Department of Justice lawyers say that "a customer's Fourth Amendment rights are not violated when the phone company reveals to the government its own records" that show where a mobile device placed and received calls.
Even though police are tapping into the locations of mobile phones thousands of times a year, the legal ground rules remain unclear, and federal privacy laws written a generation ago are ambiguous at best. The first federal appeals court to consider the topic heard oral arguments in February in a case that could establish new standards for locating wireless devices, but it has not yet ruled.
Not long ago, the concept of tracking cell phones would have been the stuff of spy movies. In 1998's "Enemy of the State," Gene Hackman warned that the National Security Agency has "been in bed with the entire telecommunications industry since the forties--they've infected everything." After a decade of appearances in "24" and "Live Free or Die Hard," location-tracking has become such a trope that it was satirized in a scene with Seth Rogen from "Pineapple Express" (2008).
Not only civil liberties groups insist that warrants to track the whereabouts of Americans--or at least their cell phones--are necessary. A coalition that formed in March includes Google, Microsoft, AOL, eBay, Intel, Qwest, AT&T, and conservative and libertarian groups including Americans for Tax Reform and the Progress and Freedom Foundation.
CNET was the first to report on warrantless cell tracking in a 2005 news article. In a subsequent Arizona case, agents from the Drug Enforcement Administration tracked a tractor trailer with a drug shipment through a GPS-equipped Nextel phone owned by the suspect. Texas DEA agents have used cell site information in real time to locate a Chrysler 300M driving from Rio Grande City to a ranch about 50 miles away. Verizon Wireless and T-Mobile logs showing the location of mobile phones at the time calls became evidence in a Los Angeles murder trial.
In reference to the Connecticut case, the ACLU's Crump added: "It's bad enough when the government engages in targeted location tracking without a warrant. It's much worse when the government appears to engage in mass surveillance of so many people, and it highlights why it's so important that courts closely monitor this surveillance and impose strict standards."