Scientia ist potentia. Knowledge is power. The government is seeking more of both, and the news media aren’t providing you any knowledge of your own with which you can fight back.
If you search for news on Barack Obama and cell phones, you’ll find a number of reports about Barack Obama filling out his NCAA basketball tournament bracket and how you, too, can get March Madness sporting updates on your cell phone for a small fee.
You won’t find the following covered by any mainstream news outlet. For detailed information — heck, any information — you have to visit the blog of Wired Magazine and the Electronic Frontier Foundation, and then go a few steps beyond them, to piece it all together.
During the last presidency, the administration of George W. Bush tried to get records of Americans’ cell phone usage without a warrant based on a standard of probable cause. You may have heard the words “warrant” and “probable cause” once, faintly, in some high school civics class sandwiched between P.E. and Lunch. It’s the Fourth Amendment to the U.S. Constitution, folks, and although it isn’t a catchy title the tune goes like this:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
That means that if somebody in the government wants to grab your cell phone records (your papers and effects), they have to show probable cause to a judge that a crime has occurred. Then, and only then, is the judge supposed to issue a warrant. But instead, the Bush administration back in 2007 applied to Magistrate Judge Lisa Pupo Lenihan of the Western District of Pennsylvania for permission to use cell phone records in order to track a person’s location, to figure out where that person had been in the past, without probable cause. The Bush administration asserted that it only had to meet a lower standard. This lower standard is articulated in an appeals court filing on the matter dated 2/13/2009:
reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.
That’s a lower standard than probable cause to believe that a crime has occurred. Probable cause requires evidence that a crime has occurred. As the government’s own appeals court filing of 2/13/2009 explains, there wasn’t actual evidence of any crime, just some guy telling an agent that some other guy dealt drugs and used a phone. The government wanted to figure out where yet some other guy who had called the second guy lived, in case he might be a drug dealer too, maybe.
Notice what’s going on here:
1) This has nothing to do with foreign terrorists with first names that sound strange to you, delivering nuclear missiles in suitcases headed to Manhattan from Tangiers. It’s about everyday law enforcement activities concerning Americans in Pennsylvania.
2) The administration’s standard for grabbing cell phone records isn’t probable cause of committing a crime. It’s that information obtained might be “relevant and material to an ongoing criminal investigation.” It almost sounds the same in the abstract, but practically speaking in this case it involves warrantless surveillance of an someone’s activities and whereabouts through cell phone records, someone who knows someone else who in turn knows someone else who is telling an agent a story. That’s three degrees of separation between law enforcement and the target of warrantless surveillance. This twisted, expansive logic has been seen before in Bush administration warrantless electronic surveillance; due to the exponential increase in contacts with each additional degree of separation in a social network, with two or more degrees of separation nearly everyone who has a cell phone has contacted someone who knows someone who may have committed a crime. See how this could involve you? Besides, the goal isn’t even to obtain evidence that a crime has been committed; it’s to figure out there whereabouts of someone who knows someone else who a third person says might be a criminal. If the administration had probable cause, it would have gotten a warrant. The administration doesn’t have a demonstration of probable cause.
3) I didn’t write “Bush administration” in the last paragraph. Although the Bush administration initiated this attempt at surveillance, the Bush administration was turned down by Magistrate Judge Lisa Pupo Lenihan. The Obama administration has decided to appeal this rejection, taking the Bush administration’s position as its own.
In her decision, Magistrate Judge Lisa Pupo Lenihan writes convincingly about the relevant facts of the case, the relevant matters of constitutional law, and why a presidential administration is out of order in trying to spy on Americans’ activities when it cannot demonstrate probable cause to believe there has been a crime:
Cell phones, whenever on, now automatically communicate with cell towers, constantly relaying their location information to the towers that serve their network and scanning for the one that provides the strongest signal/best reception. This process, called “registration”, occurs approximately every seven seconds…. In urban areas, where towers have become increasingly concentrated, tracking the location of just the nearest tower itself can place the phone within approximately 200 feet. This location range can be narrowed by “tracking which 120 degree ‘face’ of the tower is receiving a cell phone’s signal.” The individual’s location is, however, most precisely determinable by triangulating the “TDOA” or “AOA” information of the three nearest cellular towers. Alternatively, the phone can be tracked extremely accurately – within as little as 50 feet – via the built-in global positioning system (“GPS”) capabilities of over 90% of cell phones currently in use.
….Where there is a reasonable expectation of privacy, intrusion on that [Fourth Amendment] right by the Government for investigatory purposes requires that the Government obtain a warrant by demonstrating to the Court that it has probable cause, i.e., that it make a showing of a fair probability of evidence of criminal activity.
…. The Court also writes to set forth its reasons for concluding that, while it recognizes the important and sometimes critical crime prevention and law enforcement value of tracking suspected criminals, the Government’s requests for Court Orders mandating a cell phone service provider’s covert disclosure of individual subscribers’ (and possibly others’) physical location information must be accompanied by a showing of probable cause.
The Court emphasizes that the issue is not whether the Government can obtain movement/location information, but only the standard it must meet to obtain a Court Order for such disclosure and the basis of authority. It emphasizes that the Fourth Amendment standard is not a difficult one, requiring only that the Government support its belief of criminal activity and the probable materiality of the information to be obtained. The Court notes that it is entrusted with the protection of the individual civil liberties, including rights of privacy and rights of free association, so paramount to the maintenance of our democracy. The Court also observes that the location information so broadly sought is extraordinarily personal and potentially sensitive; and that the ex parte nature of the proceedings, the comparatively low cost to the Government of the information requested, and the undetectable nature of a CSP’s electronic transfer of such information, render these requests particularly vulnerable to abuse. Finally, the Court concludes, from its exhaustive review of the statutes and cases as to both the rapidly-developing law of electronic communications and the Fourth Amendment, together with its extensive review of the legislative history and scholarly commentary, that Congress and the Supreme Court still concur in the principle underlying this Opinion: i.e., that law enforcement’s investigative intrusions on our private lives, in the interests of social order and safety, should not be unduly hindered, but must be balanced by appropriate degrees of accountability and judicial review.
…. Location information may reveal, for example, an extra-marital liaison or other
information regarding sexual orientation/activity; physical or mental health treatment/conditions
(including, e.g., drug or alcohol treatment and/or recovery programs/associations); political and
religious affiliations; financial difficulties; domestic difficulties and other family matters (such as
marital or family counseling, or the physical or mental health of one’s children); and many other
matters of a potentially sensitive and extremely personal nature. It is likely to reveal precisely the
kind of information that an individual wants and reasonably expects to be private.
… electronic communications surveillance implicates Fourth Amendment’s core concerns because it is (a) hidden, thus requiring greater reliance on the Court’s protection of the citizen’s interests; (b) and (c)intrusive and continuous, thus requiring higher justification; and (d) indiscriminate, i.e., often obtaining more information than is justified, thus requiring judicial oversight regarding minimization.
…. Thus, absent express statutory authorization for ex parte access to personal movement/location information and/or a precedential/binding interpretative ruling, this Court cannot accede to the Government’s request.
In taking up this case and appealing for the right to track your location without the probable cause demonstration required by the Fourth Amendment, the presidential administration of Barack Obama has shown that it is not a friend to the Bill of Rights or to your constitutionally guaranteed civil liberties. Indeed, the administration of Barack Obama has demonstrated yet again its interest in eroding your civil liberties.
Expect the Obama administration to continue its appeals in its quest for the authority to track your location without the probable cause warrant mandated by the U.S. Constitution. If the Obama administration cannot gain this authority from the courts, watch for a bill in the Congress granting the Obama administration “express statutory authorization” to do so anyway.