Saturday, December 10, 2005
Cell-phone tracking raises rights concerns
Judges are making it tougher for police to gain permission
By MATT RICHTEL
THE NEW YORK TIMES
Most Americans carry cell phones, but many may not know that government agencies can track their movements through the signals emanating from the handset.
In recent years, law enforcement officials have turned to cellular technology as a tool for easily and secretly monitoring the movements of suspects as they occur. But this kind of surveillance -- which investigators have been able to conduct with easily obtained court orders -- has now come under tougher legal scrutiny.
In the past two months, three federal judges have denied prosecutors the right to get cell-phone tracking information from wireless companies without first showing "probable cause" to believe that a crime has been or is being committed. That is the same standard applied to requests for search warrants.
The rulings, issued by magistrate judges in New York, Texas and Maryland, underscore the growing debate over privacy rights and government surveillance in the digital age.
With mobile phones becoming as prevalent as conventional phones (there are 195 million cellular subscribers in this country), wireless companies are starting to exploit the phones' tracking capabilities.
For example, companies are marketing services to users that turn their phones into even more precise global positioning devices for driving or allowing parents to track the whereabouts of their children through the handsets.
Not surprisingly, law enforcement agencies want to exploit this technology, too -- which means more courts are bound to wrestle with what legal standard applies when government agents ask to conduct such surveillance.
Cellular operators such as Verizon Wireless and Cingular Wireless know the location of their subscribers whenever a phone is turned on, within about 300 meters. Even if the phone is not in use, it is communicating with cell-phone tower sites, and the wireless provider keeps track of the phone's position as it travels.
The operators have said that they turn over location information when presented with a court order to do so.
The recent rulings by the magistrates, who are appointed by a majority of the U.S. District Court judges in a given court district, do not bind other courts. But they could significantly curtail access to cell-location data if other jurisdictions adopt the same reasoning. (The government's requests in the three cases, containing their details, were sealed because they involve ongoing investigations.)
"It can have a major negative impact," said Clifford Fishman, a former prosecutor in the Manhattan District Attorney's Office and a professor at the Catholic University of America's law school in Washington.
"If I'm on an investigation and I need to know where somebody is located who might be committing a crime, or, worse, might have a hostage, real-time knowledge of where this person is could be a matter of life or death."
Prosecutors contend that having such information is crucial to finding suspects, corroborating their whereabouts with witness accounts, or helping build a case for a wiretap on the phone -- especially now that technology gives criminals greater tools for evading law enforcement.
The government has routinely used records of cell-phone calls and caller locations to show where a suspect was at a particular time, with access to those records obtainable under a lower legal standard. (Wireless operators keep cell-phone location records for varying lengths of time, from several months to years.)
But it is unclear how often prosecutors have asked courts for the right to obtain cell-tracking data as a suspect is moving. And the government is not required to report publicly when it makes such requests.
Legal experts say that such real-time tracking has tended to happen in drug-trafficking cases. In a 2003 Ohio case, for example, federal drug agents used cell-tracking data to arrest and convict two men on drug charges.
Fishman said he believed that the number of requests have become more prevalent in the last two years -- and the requests have often been granted with a stroke of a magistrate's pen.
Prosecutors, while acknowledging that they have to procure a court order before obtaining real-time cell-site data, contend that the relevant standard is found in a 1994 amendment to the 1986 Stored Communications Act, a law that governs some aspects of cell-phone surveillance.
The standard calls for the government to show "specific and articulable facts" that demonstrate that the records sought are "relevant and material to an ongoing investigation" -- a standard lower than the probable-cause hurdle.
The magistrate judges, however, ruled that surveillance by cell phone -- because it acts like an electronic tracking device that can follow people into homes and other personal spaces -- must meet the same high legal standard required to obtain a search warrant to enter private property.
"Permitting surreptitious conversion of a cell phone into a tracking device without probable cause raises serious Fourth Amendment concerns, especially when the phone is monitored in the home or other places where privacy is reasonably expected," Stephen Smith, a magistrate in U.S. District Court in the Southern District of Texas, wrote in his ruling.
"The distinction between cell-site data and information gathered by a tracking device has practically vanished," Smith wrote. He added that when a phone is monitored, the process is usually "unknown to the phone users, who may not even be on the phone."
http://seattlepi.nwsource.com/national/ ... one10.html
