Comments (46)

owenz wrote on November 23, 2007 9:29 AM:

"[B]ecause the government did not install the "tracking device" and the user chose to carry the phone and permit transmission of its information to a carrier, no warrant was needed."

This has become the new standard in so many areas of privacy law. If you "allow your activities to be tracked" by private companies, the government can request or purchase the information from private providers for its own uses without violating the Fourth Amendment.

Courts ignore that this turns private companies into independent contractors for the government: the companies monitor, compile, and selling information that the government could not compile on its own without violating the Fourth Amendment. In the case of large data mining companies, the transaction is nearly transparent. Their largest client is the government and their business model centers around compiling, organizing and selling “consumer information” to the government that the government cannot collect on its own. They are, quite literally, independent contractors hired by the government to engage in activities that the government cannot itself perform.

TheraP wrote on November 23, 2007 10:30 AM:

So when all cars start getting sold with GPS tracking ability, the feds will get that too?

So when a bunch of people decide to have a meeting and if they go there carrying cell phones, that info will be available too?

Or if they simply drive there and park in the same location...

Great!

RandyR wrote on November 23, 2007 10:49 AM:

Would anyone know if or how the GPS function can be disables on a phone? Perhaps are their phones that do not have this feature? It would seem that most of the phones have this feature that have no benefit to the user, could there be some secret government deal to put this GPS function to retain more control over the citizens?

DickTater wrote on November 23, 2007 10:57 AM:

Just remember folks, a lot of your email traffic leaves the US borders....if your mail server is not in the US or you are visiting a foreign webpage....you would immediately stop being a US citizen on US soil and you would be an international issue.

Also....how do the cell companies get re-imbursed for all their time and effort coughing up records to the thug feds? Perhaps it will be seen as a profit center for the cell companies? They couldn't possibly induce you to talk MORE than you already do, how bout they start making money SELLING your data to the feds? Heck, in the telcom deals we hear that big fat contracts were on the line for the phone companies to 'Deal Your Data' to the Gov.

tiowally wrote on November 23, 2007 10:59 AM:

One sure way to disable the GPS function is to take the battery out.

chophouse wrote on November 23, 2007 11:07 AM:

Maybe the headline should read ... "America's Ankle Bracelet" ???

TheraP wrote on November 23, 2007 11:32 AM:

By law now, for purposes of 911 calls, cell phones must have GPS. Old phones that lacked that can no longer be activated. So that's that. (even if your phone is "locked" the 911, and thus the GPS, still works) Not all localities are able to track you this way... YET.

And I cars are getting it - allegedly for the same reason. To locate you in an emergency.

But of course, if the govt deems YOU an emergency... well, there you are!

Anonymous wrote on November 23, 2007 11:46 AM:

RandyR: I suspose a parent being able to keep track of their child via their cell phone is a good reason for GPS tracking.

I would, however, worry about private companies being able to provide GPS information to 3rd parties. Then imagine a company that aggerates all alailable informtion availabe about you. They will know where we go, who we communicate with, our financial situation, what we watch on TV, what we eat, drink, wear, donate ...

Big Brother, Inc. is watching already.

Anonymous wrote on November 23, 2007 11:56 AM:

The genie is out of the bottle. Has been for some time.
In the early 60s when I worked for a major insurance company, I was shocked, shocked by all the private data available on people, both policy holders and those making claims for injuries.
When I expressed my dismay I was called a "radical" -- a word from the 20s.
Privacy is gone with the wind, has been for some time. It went with the the development not just of computers, but of mass storage devices -- giants reels of tape, then hard drives and now who knows what.
Before that we had warehouses full of punched paper cards.

just john wrote on November 23, 2007 12:30 PM:

Care to bet they're doing the same thing with GPS trackers?

paranoid wrote on November 23, 2007 12:32 PM:

really dumb question - can the whereabouts of your cell phone be traced if it is turned off? Does the GPS tell the position irrespective of the on or off switch. (Confession - I only switch mine on if I am making a call.)

Steve5117 wrote on November 23, 2007 12:35 PM:

When we are required to have RFID tags inserted inside our bodies our handlers will not need GPS to keep track of our movements.

SocraticGadfly wrote on November 23, 2007 12:41 PM:

Can we all say "Fuck George Bush" into our cellphones at the same time?

Paulie wrote on November 23, 2007 12:45 PM:

It's been a LONG time since our citizens were not "tracked" in some form or other. This is just the latest in a long line of actions by our government to dispose of our freedoms further.

BTW, you can still buy a "disposable" cell phone and use fake information. the signal could be tracked but no one would know whose phone it is.

OxyCon wrote on November 23, 2007 12:52 PM:

All this is happening and America's staunchest defenders of "Liberty", the "Libertarians" are more quiet than at any other time. Not a peep out of them. They were pretty vocal against President Clinton for percieved invasions of privacy (which were really just right wing smear campaigns). But speaking out against Bush's destruction of the Bill of Rights? The Libertarians are as quiet as a Church mouse.

jimijazz wrote on November 23, 2007 12:59 PM:

The feds can basically go f**k themselves if they think they can get any pertinent information on the public by cellphone. The worse the war gets and the lower Bush's ratings get you see a marked increase in surveillance and intimidation. It's just a way of trying to control dissent but it's not working. Like Abbie Hoffman said of Vietnam, "The war has come home."

roystgnr wrote on November 23, 2007 1:09 PM:

OxyCon is making false statements. Take 60 seconds on Google to verify that for yourselves. From the first hit on the Libertarian Party website, for example:

"The Libertarian Party rejects President Bush's claims that the 'Protect America Act' needs to be made permanent, citing that the bill fails to live up to its name and only limits American civil liberties."

"The administration of George W. Bush is once again shamelessly and disingenuously scaring the American people--and their representatives in the Congress--into greatly expanding the power of the federal government to surreptitiously surveil citizens’ overseas phone and Internet communications," Barr continued.

Aeon wrote on November 23, 2007 1:10 PM:

Mario Cumo issued a call to 2,000 of the most influential lawyers in the USA to --- TAKE THEIR PROTESTS TO THE STREETS!

“If US lawyers are marching in the streets in support of the rule of law in Pakistan...........why aren’t we marching in support of the rule of law here?”

and

“If not the lawyers, then who? If not now, when?”

http://www.firedoglake.com/2007/11/23/our-lady-of-the-law

duffy wrote on November 23, 2007 1:22 PM:

Turning off the phone doesn't disable the GPS. The battery must be removed.

Likewise, another Big Brother feature that was exposed last year. Even with your phone turned off (with battery installed), law enforcement can activate your microphone remotely and listen in on your non-phone conversations.

Justin Bronn wrote on November 23, 2007 1:26 PM:

I was quite surprised when I read this last night, and became disturbed when I delved into the case law.

What the article doesn't mention is that Brian L. Owsley, the magistrate judge from S.D. Tex., actually issued three opinions -- see the following 2007 WL (WestLaw) cites: 3341736, 3342243, 3355602. What Owsley disagreed with was the government's requests to "to disclose location-based data that will assist law enforcement in determining the _location_ of the Target Device."

This is in contrast with the previous decisions of multiple jurisdictions , which have determined that the probable cause standard is not needed for certain types of cellular site data. See, e.g., In re Application of U.S. for an Order for Disclosure of Telecommunications Records, 405 F.Supp.2d 435 (S.D.N.Y. 2005) (mentioned in WaPo article); In re Application of the U.S. for an Order, 433 F.Supp.2d 804 (S.D. Tex. 2006). Specifically, the latter Texas court found that the probable cause was not necessary for a "pen register/trap and trace device configured to provide cell-site information at the origin and termination of calls and, if reasonably available, during the progress of a call that is not initiated by the government itself." 433. F.Supp.2d at 806.

In other words, providing the locations of cellular infrastructure used during your call is OK -- courts are only starting to balk when requested to yield exact location (either via GPS devices in the handets or triangulated from multiple cell sites).

tbhull wrote on November 23, 2007 1:42 PM:

owenz wrote on November 23, 2007 9:29 AM:

The large telcos and data mining companies are not "independent contravtors" for the government, they are part of the government. Hell, BushCo wants the taxpayers to cover the liability of the telcos. So basically, the government will use taxpayer dollars to pay taxpayers that the government spied on. No dad deed goes unpunished, or in this case unpaid by the very same people that suffered the intrusions. Rhino for mayor.

dp wrote on November 23, 2007 1:52 PM:

The listening feature on phones is a long standing feature on phones. From what I understand, as that feature has been present on phones for many moons, military personnel are not allowed to bring cell phones into secured areas.

And while I'm not 100%, I don't think tracking of people is limited to phones with GPS features. While it probably allows a greater degree of accuracy, fairly certain cell providers can also track the location of a phone using triangulation from various towers and the signal the phone generates.

Quite a bit of info on the net concerning the topic dating back to at least 2004.

dp

Together, me and my NSA trackers wrote on November 23, 2007 1:55 PM:

You're all so paranoid. It's not as though Dick Cheney would misconstrue legitimate democratic freedom of speech as a threat, or use fear to increase surveillance for partisan political purposes. *sheesh* What are you people smoking?

Himself wrote on November 23, 2007 2:04 PM:

There are two levels of tracking here. While any cell phone is on it will ping to the nearest cell tower. This appears to be what the earlier legal opinions are concerned with.

Newer cell phones have GPS transmitters installed, which would give a more precise location of the device.

GPS=exact location, cell tower=general location

Jordan wrote on November 23, 2007 2:20 PM:

Unless I'm very much mistaken, GPS in cellphones is not nearly as ubiquitous as some here are contending. I remember when Apple announced that its iPhone handset would not include GPS technology (because of the power drain issues). This was viewed as a disappointment by smartphone connoisseurs, who appeared to regard GPS as merely an attractive option (e.g. only a "necessity" for gadgeteers) but hardly an expected standard. The idea that EVERY cellphone has built-in GPS seems extremely implausible.

TheraP wrote on November 23, 2007 2:44 PM:

I was told last time I purchased a cell phone (and that was a year or two ago) that all cell phones now had to have that GPS feature due to 911 calls needing to pinpoint your location.

I was also informed that if an old cell phone (that had no GPS) had been deactivated, it was illegal to reactivate it... for the same reason.

That may sound implausible. But that's what I was told... and not just by one phone maker. I was in the process of switching phones and service.

Now, the GPS feature does NOT mean you can use it to find out where you are. NO, it means THEY can pinpoint your location.

They're different animals, the GPS to help you navigate versus the GPS for 911 that gives away your location to someone else.

Steve5117 wrote on November 23, 2007 5:41 PM:

TheraP: I must disagree, any cell phone that sends GPS information for 911 could also send that same GPS information when seeking directions from a mapping service or tracking service.

The Qualcom system used on big rigs is an example of the technology with added features for paying tolls and bypassing weighing and inspection stations.

Would you subscribe to a service where you could log onto a web site, enter a phone number then get a report of the location of that phone (person or vehicle)displayed on a map showing you travels over time and length of stay at any location?

That would be useful for parents keeping track of children, businesses keeping track of personel and vehicles, spouses of partners and very, very useful for Big Brother keeping tabs on us all.

Don't forget redlight cameras, the technology used there reads our licence plates to get the name and address of the owner. Add that technology to all the CCTV cameras now keeping watch on us and some facial recognition software and well never have to worry about our safety from terrorists, just our protedtors.

blogamator wrote on November 23, 2007 5:59 PM:

Yo, everyone, if you're worried about real-time GPS tracking of your cell phone, get a lead-lined pouch - it's that simple.

DallasNE wrote on November 23, 2007 5:59 PM:

Something that always stands out in these cases is how it is federal officials only that are making these requests yet most law enforcement is conducted by State and local authorities. If the issue is crime then why is it only the federal government that is involved. Based on this one has to assume that there are ulterior motives in place; most likely political.

Anonymous wrote on November 23, 2007 7:58 PM:

TheraP- You are right...sort of. The capability to locate you for "e911" services is a requirement of the telco companies and has been for a long time. Your location (automatically triangulated via cell site) is routed and transmitted to the nearest 911 emergency service center for local support. The same is true of "311" non-emergency calls. Otherwise someone in Jersey gets your house-fire call in Nevada.

However, no GPS requirement is there, yet. They gave you bum information or a just a bad explanation. If that was the case, every phone made would have GPS capability for sale, which is a recent adoption and companies would like to charge your existing account for the "feature". Also, it would require an upgrade to GPS for lots of telco and EMS coordination services across the country, and it's just not in place yet.

This discussion really shouldn't be focused on e911 vs. GPS, because both are the exact same function: find you automatically with or without your consent. The technology is improved, but from a legal standpoint, that should make no difference at all.

The focus should be on whether we have some expectation of privacy based on location of the call itself, as described by warrant statute. If my cell phone is in my home, do I get the same expectation of privacy as my home line (need warrant)? If I am in a bus station, standing next to a pay phone, does that expectation change (no warrant)? Why would the same legal rules not apply to cell phones?

I don't have the answer, but this seems to be the crux of the questions I have been reading elsewhere.

W.T. wrote on November 23, 2007 8:17 PM:

So, US corpoations, in league with
a facist administration expect us to buy their crap for Christmas. I hope not.

George wrote on November 23, 2007 8:45 PM:

The only thing these companies care about is money. Therefore, hit them where it hurts: stop using your mobile phone, or at least cut way back on usage. And inform your cell provider why you are taking the actions you take. I switched to a pay-as-you-go plan with T-Mobile and now pay about $20/month vs. the $70 I was paying under contract. We can beat these guys if we vote with our wallets!

Anonymous wrote on November 23, 2007 10:49 PM:

Wasn't the argument -- to "justify" not going to the FISA court -- the Judiciary "wouldn't approve" the requests? This story shows that excuse is absurd: Even where there is no probable cause, the courts are -- or appear to -- rubber stamp.

What's the plan to impeach/prosecute these judges who aren't upholding the Constitution? Times to prosecute Members of Congress who are letting this rubber stamping go un-impeached.

America's Constititution isn't getting enforced. Let's talk about a new one.

Anonymous wrote on November 23, 2007 10:50 PM:

Wasn't the argument -- to "justify" not going to the FISA court -- the Judiciary "wouldn't approve" the requests? This story shows that excuse is absurd: Even where there is no probable cause, the courts are -- or appear to -- rubber stamp.

What's the plan to impeach/prosecute these judges who aren't upholding the Constitution? Times to prosecute Members of Congress who are letting this rubber stamping go un-impeached.

America's Constititution isn't getting enforced. Let's talk about a new one.

Anonymous wrote on November 23, 2007 10:53 PM:

Good to know the DEA knows about this capabiity: They can't argue, "nobody told us our DEA cell phone-records could be supboenaed to find out what the DEA agents were really doing."

Let's get some FOIAs for the DEA cell phones and find out if there is probable cause to sugges the DEA agents aren't really doing official business with their cell phones; but are doing other things outside their job description.

DEA cell phone locations should give a good idea of which DEA agents were involved with prisoner abuse, rendition, and other breaches of FISA. Those DEA agnets were in the DOJ offices in re FISA warrants, or weren't they. . .?

Bribes wrote on November 23, 2007 11:24 PM:

Probable cause is not the only standard out there. The one they are using here is a "reasonable expectation" that the search will lead to something useful in connection with the crime. There is still a judicial check.

What it is in actual terms of judges issuing warrants is another matter. My guess is, a judge would probably look to see if the proposed search (a) has a logical connection to the investigation and (b) has a "reasonable" chance of obtaining relevant information.

TheraP wrote on November 24, 2007 7:25 AM:

Anonymous @10:49 pm wrote:

"America's Constitution isn't getting enforced. Let's talk about a new one."

If the problem is enforcing the Constitution (and I agree), we don't need a new one. We need to enforce the one we have.

Enforce the Constitution.

As for cell service, I like Virgin's "pay as you go." You can get it for as low $60 per year - if you use it very little.

I agree with the idea of using cell phones less.

pro choice lib wrote on November 24, 2007 8:37 AM:

Aeon wrote on November 23, 2007 1:10 PM:
Mario Cumo issued a call to 2,000 of the most influential lawyers in the USA to --- TAKE THEIR PROTESTS TO THE STREETS!

That speech was from 2000.

marshall wrote on November 24, 2007 11:31 AM:

The comment from Duffy about remote activation of cellphones to use them to listen to non-cellphone conversations is quite correct...and the government has known this for years...that's why, for example, visitors to US embassies must leave their cellphones before entering.

Math_Mage wrote on November 24, 2007 2:06 PM:

A few points/questions:
1. Just to clear the air, cell phone companies aren't providing records for these cases w/o probable cause, so that much is secure. Also, the warrant is still a prerequisite for cell phone tracking - it's not on the level of warrantless wiretapping. However, the lack of a "probable cause" standard is a cause for concern, though as Bribes says they're probably still using a "reasonable expectation" standard.

2. The federal/state boundaries of these cases seem uncertain. If it's a federal crime (i.e. crosses state lines), then obviously it'd be a federal official requesting a warrant for tracking. If it's a local crime, is it possible for the state officials to request a warrant of this sort? Otherwise, it seems a little suspicious, as has been noted, that these cases are almost exclusively federal.

3. If you're in a public place, doesn't the police officer have the right to follow you around without a warrant or anything? For example, isn't that what police do on the road? I understand that there's a bit of a difference between a highway cop wandering around the highway and cops on your tail whenever you're in a public place to make sure you aren't breaking the law, but where is this difference spelled out in the law itself?

4. It seems, therefore, that the main point of conflict would be police using this cell phone tracking for people in public areas. Would it then be reasonable to write that difference into law, such that police can track you while in a public place without probable cause but have to obtain a warrant with probable cause for private areas?

John B Brown wrote on November 24, 2007 5:48 PM:

Most modern electronic equipment is program and function burned into programmable grid array chips. Those chips may be reprogrammed, in many cases, to include or exclude whatever function you wish. The knowledge of how to do this has been demonized as "Hacking" but is still perfectly legal. Budding entrepreneurs might even feel the urge to fill the need for such reprogramming. Who knows? Sitting around wondering if Big Brother is listening when you know full well he is is fruitless; do some thing about it!
All those antique Ford Model T coils will finally find some useful application.

LiberalTarian wrote on November 24, 2007 6:54 PM:

"blogamator wrote on November 23, 2007 5:59 PM:

Yo, everyone, if you're worried about real-time GPS tracking of your cell phone, get a lead-lined pouch - it's that simple."

Bwahahaha. You think there are still some lead-painted toys out there big enough to put my cell phone into??

Anonymous wrote on November 26, 2007 12:04 AM:

Hey, everyone, I work for one of the major cell phone carriers. Just to address some of the points raised here about privacy (and keep in mind, all of this is "as I understand it from here on the inside," not the Gospel Truth):

Re: Tracing cell phones if they're powered down. Nope, can't be done. Actually, whenever your phone is powered on, it's constantly transmitting its general location in the form of communicating with the nearest cell tower (not for paranoia-enabling reasons, for things like your signal bar in the corner of your phone; how did you think your phone knows how much signal it has?). If your phone's off, it's obviously not talking to the nearest tower, so there's no way to know where it is. And another commenter above is correct; whenever your phone is powered on, your *general* location (within a few miles) is made known because the cell network has to know what tower your phone is talking to in order to service your calls. So yeah, at any time the cell phone network "knows" you're in Bogfom, Michigan, but it doesn't have an address and nothing that could be measured in yards. GPS is a different story...

Re: GPS and turning it off: most phones with GPS let you go into the Settings menu and disable GPS, but be advised that whenever an application asks "Can I turn your GPS on?" it usually doesn't mean "just this once," it means it wants to turn it on until you turn it off again. Oh, and calling 911 automatically enables GPS location-based services for your call to emergency services; that's the FCC's law and the cell phone companies can't defy the FCC or they lose their licenses. Any time you place a call to 911, if your phone supports it it will utilize GPS location-tracking.

Re: the money the telcos make from giving out this data: to my knowledge, it isn't the carrot, it's the stick. [HUGE DISCLAIMER: This is what I know from a friend who deals with the law-enforcement wing of the company. This is second-hand knowledge even to me and I don't guarantee it as fact.] If we're presented with a request from law enforcement to give data for calls, we pay a fine along the lines of $10,000 *per day* that we don't comply and follow the directions in the warrant. Maybe sometimes they work out a deal to purchase data from us, but by and large we comply because we're told to or else a fine is levied. Direct (the majority of) your anger at the judges who shrug and go "OK" and don't check into probable cause, or the law enforcement officials asking for approval without that probable cause, and not the companies who have to follow the LEO's lead or fork over lots of money.

...um, I think that's about all I can add, here. I think it sucks, too.

Anonymous wrote on November 26, 2007 12:08 AM:

Oh! One more thing regarding law enforcement's request for cell phone data. Again *as I understand it*, the LEOs have to specify a date in their warrant, i.e. "from Thursday the 22nd 08:00 to Friday the 23rd 17:00" and we only comply with their request during those times. It's actually a big deal, I'm told, because of course the LEOs want all the data they are legally able to have, so they want their records from the nanosecond the warrant allows it up until the nanosecond it doesn't, so I'm fairly sure that's a pretty accurate statement.

Hope this is some helpful information.

JohnLPalmer wrote on November 26, 2007 1:37 PM:

Isn't this a First Amendment vs. Fourth Amendment argument? Americans are always allowed to listen on the public airwaves. So this this real-time tracking and all cell phone conversation are available to anyone willing to setup the receivers.
I admit I don't use a cell phone, but it has always been my understanding that by using one you are exercising your First Amendment right to Free Speech and everyone including the government is allowed to listen.

Anonymous wrote on November 27, 2007 1:15 AM:

RFID

Though RFID is the big rage these days with people getting them to get special entry into clubs, inventory control, etc., it goes far deeper and farther back then that.

The harsh reality is that all children born after 1970 had an RFID chip inserted into them at birth.

So basically, all of you children of the 70s have been tracked since the day you were born.

The government has never announced where said RFID was to be implanted, but with a good portion of the 70s folks scratching their 30s, these little bugs are pretty much fully engulfed in the body so there is no possible way to remove them.

So whether or not you carry a cell phone, they still have your number, literally.

Of course there is no ability to listen to your conversations remotely, but they always know where you are.

Does that not scare you just a little bit?

I do not have a chip since I am scratching my way into my 40s. yay me!

This is fully documented at the National Security Agency's website at:

www.nsa.gov/dayumdanisfunny

Best of luck to all of you and happy hunting.