Bear Witness

FEDS PUSH FOR TRACKING CELL PHONES

As reported by Declan McCullagh  CNET NEWS  Two years ago, when the FBI was stymied by a band of armed robbers known as the "Scarecrow Bandits" that had robbed more than 20 Texas banks, it came up with a novel method of locating the thieves.

FBI agents obtained logs from mobile phone companies corresponding to what their cellular towers had recorded at the time of a dozen different bank robberies in the Dallas area. The voluminous records showed that two phones had made calls around the time of all 12 heists, and that those phones belonged to men named Tony Hewitt and Corey Duffey. A jury eventually convicted the duo of multiple bank robbery and weapons charges.

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. On Friday, the first federal appeals court to consider the topic will hear oral arguments (PDF) in a case that could establish new standards for locating wireless devices.

In that case, the Obama administration has argued that warrantless tracking is permitted because Americans enjoy no "reasonable expectation of privacy" in 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.

Those claims have alarmed the ACLU and other civil liberties groups, which have opposed the Justice Department's request and plan to tell the U.S. Third Circuit Court of Appeals in Philadelphia that Americans' privacy deserves more protection and judicial oversight than what the administration has proposed.

"This is a critical question for privacy in the 21st century," says Kevin Bankston, an attorney at the Electronic Frontier Foundation who will be arguing on Friday. "If the courts do side with the government, that means that everywhere we go, in the real world and online, will be an open book to the government unprotected by the Fourth Amendment."

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 '40s--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).

Once a Hollywood plot, now 'commonplace'

Whether state and federal police have been paying attention to Hollywood, or whether it was the other way around, cell phone tracking has become a regular feature in criminal investigations. It comes in two forms: police obtaining retrospective data kept by mobile providers for their own billing purposes that may not be very detailed, or prospective data that reveals the minute-by-minute location of a handset or mobile device.

Obtaining location details is now "commonplace," says Al Gidari, a partner in the Seattle offices of Perkins Coie who represents wireless carriers. "It's in every pen register order these days."

Gidari says that the Third Circuit case could have a significant impact on police investigations within the court's jurisdiction, namely Delaware, New Jersey, and Pennsylvania; it could be persuasive beyond those states. But, he cautions, "if the privacy groups win, the case won't be over. It will certainly be appealed."

CNET was the first to report on prospective 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.

And a mobile phone's fleeting connection with a remote cell tower operated by Edge Wireless is what led searchers to the family of the late James Kim, a CNET employee who died in the Oregon wilderness in 2006 after leaving a snowbound car to seek help.

The way tracking works is simple: mobile phones are miniature radio transmitters and receivers. A cellular tower knows the general direction of a mobile phone (many cell sites have three antennas pointing in different directions), and if the phone is talking to multiple towers, triangulation yields a rough location fix. With this method, accuracy depends in part on the density of cell sites.

The ACLU, EFF, the Center for Democracy and Technology, and University of San Francisco law professor Susan Freiwald argue that the wording of the federal privacy law in question allows judges to require the level of proof required for a search warrant "before authorizing the disclosure of particularly novel or invasive types of information." In addition, they say, Americans do not "knowingly expose their location information and thereby surrender Fourth Amendment protection whenever they turn on or use their cell phones."

"The biggest issue at stake is whether or not courts are going to accept the government's minimal view of what is protected by the Fourth Amendment," says EFF's Bankston. "The government is arguing that based on precedents from the 1970s, any record held by a third party about us, no matter how invasively collected, is not protected by the Fourth Amendment."