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Location Tracking Without A Warrant Gets Personal and Political

Governments big and small are tracking your whereabouts, most often without a warrant, with increasing frequency, and for reasons that are unnervingly personal and political.

You may recall that last December, graduate student Christopher Soghoian caught representatives of Sprint-Nextel and Cricket on audio at a private conference for telecommunications corporations and government surveillance agencies. The public was not allowed to attend, and conference organizers quickly badgered Soghoian into removing incriminating audio and video files from the web, but not before others noticed the audio and mirrored it on their own websites. Be a fly on the wall and listen for yourself to the fascinating conversation between IT professionals, telecommunications corporate representatives, and various government intelligence officials.

In the roundtable Soghoian recorded, Sprint-Nextel Manager for Electronic Surveillance Paul Taylor reported assembling a huge team of staffers and the development of an automated software package to process 8 million non-warrant “pen register” requests from the federal government for Americans’ location data over one year:

…my major concern is the volume of requests. We have a lot of things that are automated but that’s just scratching the surface. One of the things, like with our GPS tool. We turned it on the web interface for law enforcement about one year ago last month, and we just passed 8 million requests. So there is no way on earth my team could have handled 8 million requests from law enforcement, just for GPS alone. So the tool has just really caught on fire with law enforcement. They also love that it is extremely inexpensive to operate and easy, so, just the sheer volume of requests they anticipate us automating other features, and I just don’t know how we’ll handle the millions and millions of requests that are going to come in.

…In the electronic surveillance group at Sprint, I have 3 supervisors. 30 ES techs, and 15 contractors. On the subpoena compliance side, which is anything historical, stored content, stored records, is about 35 employees, maybe 4-5 supervisors, and 30 contractors. There’s like 110 all together.

Smaller carriers like Cricket compete with Sprint-Nextel by playing up the cutesy, personal-like, homey touch in their communications. Cricket likes to tell its customers that it has “respect” for their “freedom”:

The Cricket Difference: Unlimited Respect. Cricket respects your freedom and your wallet…. Here’s what you get with Cricket Wireless: It’s all about respect!… we were really offering customers something revolutionary in the wireless industry: respect. Respect for your wallet, respect for your right to talk as much as you want when you want, and respect for your right to choose and not to be locked in…

To its customers, Cricket Communications is all about rights, freedoms and respect. But at the closed-door ISS World Conference, Cricket Subpoena Compliance Manager Janet Schwabe uses a different vocabulary to describe her corporation’s supply of personal tracking information to the U.S. Government:

Cricket doesn’t have as many subscribers so our numbers are going to be less. I think we have 4.5 – 5 million subscribers. We get approximately 200 requests per calendar day, and that includes requests for records, intercepts. We don’t have the type of automation they do, and we can’t do the location specificity that they can, because we don’t have GPS.

Being a small company, Cricket only provides tracking data on Americans 73,000 times a year. Notice that Schwabe says Cricket can’t do the “location specificity” that the big carriers can? Even without GPS in its phones, Cricket can use triangulation with cell phone towers to pin down an person’s whereabouts within a city block.

The Obama Administration has gone to court asserting its desire to continue tracking Americans’ whereabouts using cell phone records. That tracking goes without the probable cause warrant we were all told in civics class made the difference between the freedom-loving USA and the nefarious Soviet Union.

Michael Isikoff of Newsweek has brought new depth to this story with indications of the uses of tracking that go far beyond the “War on Terror” you’ve been told about:

* Steady state? No: cell phone carriers report government tracking of cell phones is growing “exponentially.”

* Just the terrorists? No: the feds are using warrantless location data to track people they think might be carrying drugs.

* Just the feds? No: when an Alabama sheriff couldn’t find his daughter, he got her location data from her cell phone company, again without a warrant. Turned out she’d been partying with friends.

* Only tracking suspects? No: In Michigan, warrantless cell-phone tracking was used by cops to keep tabs on a protest organized by a labor union.

* Respecting the First Amendment? No: When Obama Administration lawyer Mark Eckenwiler went to the Third Circuit Court of Appeals this year to assert its right to track Americans without a warrant, Judge Dolores Sloviter asked whether the government might use its power to keep track of Americans’ free speech and free assembly political activities:

Judge Dolores Sloviter: There are governments in the world that would like to know where some of their people are, or have been. For example, have been at what may be happening today in Iran, have been at a protest, or at a meeting, or at a political meeting. Now, can the government assure us that — one, it will never try to find out that information, and two, whether that information would not be covered by (d).

Obama Administration Lawyer Mark Eckenwiler: Your honor, I can’t speak to future hypotheticals in terms of what might happen.

Sloviter: But don’t we have to be concerned about that? If the statute would permit the government — not this government right now but a government — to get information as to where… Wouldn’t the government — a government — find it useful if it could get that information without showing probable cause?

Eckenwiler: Your honor, the information at issue in this case certainly is useful, that’s why the government’s applying for it here.

Sloviter: But without showing probable cause. Because it’s relevant. Your papers admit that the showing that needs to be made for a subsection (d) order is less than the showing that needs to be made for a warrant.

Eckenwiler: That’s correct, your honor.

Sloviter: So the question is, can (d) be used for that purpose?

Eckenwiler: Yes, your honor. It can be used constitutionally for that purpose.

From Washington, DC right on down to the Ashtabula Office of the Sheriff, American governments are using their unprecedented warrantless surveillance powers from the War on Terror. But they’re not being used to watch terrorists. They’re being used to watch you.

Keep your ear cocked for the sound of the other shoe dropping.

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