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Can
You See Me Now?
I’m sure you love your cell phone, and as you know, they’re
not just for yakkin’ anymore. They’re status symbols, entertainment
centers, essential accessories, and multimedia transceivers,
and every week somebody comes out with a new phone that does
something else for you. I happen to enjoy the vibrate function
very much, but everybody has their favorite feature. Brain
cancer be damned, the things are cool. They’re increasingly
making land-line phones irrelevant. If you’ve got one that
works in your pocket, why do you need another one on your
wall?
Did you know that your cell phone phones home every couple
of seconds? Even when you’re not using it, but just have it
turned on? Cell phones are constantly monitoring the available
signal strength from the closest cell towers—that’s where
those five bars come from, and why they constantly change.
Now, pay attention. Your cellular company can track the silent
conversations your cell phone has with the transmitters, and
by triangulating which transmitters are picking up your phone
and the relative signal strength among them, the company can
figure out pretty much where you are, all the time. Sort of
like GPS, except without the satellites flying around.
And the cellular companies are required to do this,
by law. Federal regulations were put in place in 1997, supposedly
to ensure that 911 calls coming from cell phones could be
automatically tracked. Privacy wonks at the time expressed
a lot of concern over what else the information would be used
for.
The privacy wonks, of course, were right. Apparently, for
as long as this information has been generated, law-enforcement
agencies have routinely been going to judges with applications
for orders forcing the cellular companies to reveal this tracking
information, allowing law enforcement to track individuals’
whereabouts in real time. The applications contained little
more than an investigator’s statement that tracking the individual
will aid in a criminal investigation. And for a couple of
years, judges have been signing the orders. Hundreds, maybe
thousands of them. The orders are issued in secret, under
seal, to protect the integrity of the investigations, and
there are no criminal defense attorneys to challenge the applications,
because with an ongoing investigation, there are no defendants—yet.
Last summer, one judge, bothered by the breadth of the orders
and the ease by which the government got them, decided not
to take the government’s word for it anymore. He researched
the patchwork quilt of laws the government had been relying
upon to get these orders, and found there was absolutely no
legal justification for them. Instead, the judge found that
law enforcement, to get an order allowing it to track a person
using real-time cell-phone data, needed to demonstrate probable
cause, which is a reasonable belief that a crime had been
(or is about to be) committed by that person, the same standard
used for search warrants or wiretaps.
Note the difference here, because it’s huge: The government
had been getting its search orders based on a signed (and
unquestioned) statement that tracking a person would aid in
an investigation, a very low, almost nonexistent threshold.
And the person being tracked didn’t even have to be the target
of the investigation. The judge found that allowing the government
to use a person’s cell phone like a tracking device required
a much greater showing: that the person the police seek to
track in all probability actually committed a crime.
It’s a much higher standard, and more importantly, sharply
reduces the number of folks the police could conceivably track.
On the heels of this finding, two more judges made the same
determination, variously finding the government’s rationale
for the orders “perverse,” “misleading,” “contrived,” “a hail
Mary,” and a failed “three rail bank shot.” Interestingly,
the government has refused to appeal any of these rulings
so as not to create a binding judicial precedent, and is probably
continuing to get orders allowing it to track people, in secret
and under seal, from other judges in other jurisdictions who
are too lazy, too pliant, or too uninformed to challenge the
applications.
I suppose the judges who’ve stood up, who are from New York,
Texas and Maryland, will be attacked for being “activist judges,”
the neocon buzzword for judges who believe that laws and the
Constitution mean what they say, and not what the Executive
Branch and the Bible say they say. In any event, along with
other recent revelations of illegal domestic spying, data
mining, and warrant-less interception of civilians’ telephone
calls, this is one more horror to pile on to the Orwellian
dung heap. 1984 seems like just yesterday.
—Paul
Rapp
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