Darlene Storm

DOJ: Requiring warrant for cell phone tracking would 'cripple' law enforcement

May 08, 2012 12:47 PM EDT

If your mobile phone is on then it is constantly pinging cell phone network towers, leaving you no choice about revealing your location. The ACLU warned the "threat to personal privacy presented by this technology is breathtaking," especially since the "government is routinely violating American's privacy rights through warrantless cell phone tracking." Apparently any mobile phone privacy is too much privacy in the early stages of an investigation, before law enforcement actually has any proof that a person has done anything illegal. An Obama administration official told a congressional panel that requiring a search warrant to obtain cell phone location tracking information would "cripple" law enforcement and prosecutors.

Now that the Supreme Court decided a warrant is necessary before attaching a GPS to a person's vehicle, warrantless location tracking via a person's cell phone is the surveillance method of choice for law enforcement. Jason Weinstein, deputy assistant attorney general for the Justice Department's criminal division, discussed the need for such warrantless cell phone tracking so it won't "cripple" the government at "State of the Mobile Net," a conference for the Congressional Internet Caucus Advisory Committee. It was the DOJ that also argued in favor of warrantless GPS tracking in United States v. Jones.

But the Fourth Amendment grants us a "reasonable expectation of privacy" and the world as we know it didn't end when the Supreme Court ruled that GPS tracking required a warrant. Greg Nojeim, senior counsel at the Center for Democracy and Technology (CDT), told the same congressional panel that "not one justice accepted the Department of Justice's argument in that case. It got zero votes. We're all here, the criminals are not taking over the country."

So now wireless carriers are only too happy to hand out our location data without requiring a warrant; selling cell phone surveillance records is a big money-making business for mobile phone companies that have special divisions and manuals to assist law enforcement in nabbing our info. The wireless industry is not transparency-friendly and mobile carrier companies do not want to report the number of times location info is disclosed, contested, or the number of users whose location data was handed over to Johnny Law. In fact, according to the Wireless Association (CTIA), a wireless trade association that includes AT&T, Verizon and Sprint, the proposed reporting requirements "unduly burden wireless providers and their employees, who are working day and night to assist law enforcement to ensure the public's safety and to save lives." The EFF bluntly pointed out that the wireless industry is "working day and night" to sell you out in secret.

Weinstein told the Congressional Internet Caucus Advisory Committee the DOJ tells law enforcement to obtain a search warrant when tracking a phone's GPS or "precise locational information," yet that requirement can vary. "There really is no fairness and no justice when the law applies differently to different people depending on which courthouse you're sitting in," he said. "For that reason alone, we think Congress should clarify the legal standard."

On the other hand, if the purpose of accessing accounts is to solve crimes and catch criminals, is there any fairness or justice if law enforcement gobbles up mobile device location information without any probable cause? If it's not clear there is illegal activity, is that not somewhat like a fishing expedition in murky water when law enforcement tries to find some suspicious dirt prior to obtaining a warrant? Senator Ron Wyden still believes in our Fourth Amendment rights and a reasonable expectation of privacy since he proposed the GPS Act, meaning law enforcement would be required to acquire a search warrant to access location information.

More warrantless surveillance in the USA is not what this country needs. In fact, as the EFF put it, the DOJ thinks "any privacy protection is too much privacy protection for cell phone tracking." As for Weinstein's comment about the need for a warrant "crippling" prosecutors and law enforcement, if warrantless cell phone location tracking continues it will cripple the privacy of We the People.

The EFF reported:

Requiring the police to obtain a search warrant -- the traditional method for balancing law enforcement needs with individual privacy -- and demanding the wireless industry be transparent about how they deal with law enforcement requests for location information are critical steps in the right direction, towards "fairness" and "justice," location privacy and transparency.

Below is the video if you would like to see the portion of "State of the Mobile Net" that dealt with "Location Tracking by the Government After Jones: What Jones Tells Us About Mobile Phone and App Tracking."

You might find Weinstein's comments to be an eye-opener about your ISP or wireless carrier happily selling your privacy for commercial gain. Only a small number of people need to worry about law enforcement accessing their account data, he said, but "100% of cell phone and Internet users need to worry about how providers are using their information." To which CDT's Nojeim jumped in and said not to change the subject as the focus of the panel was "law enforcement access to location information."