As my granddaughter Samantha would say, "Uh-oh."
Many of us assumed that the tracking of cell phones was done primarily by federal law enforcement. It appears we were wrong. According to a startling report from yesterday's New York Times, local law enforcement is heavily into tracking cell phones, obtaining location information and even the contents of text messages. This activity often has little court supervision, which is deeply troubling from a privacy perspective.
It certainly bothered me to hear that cellphone carriers are actually marketing a catalog of "surveillance fees" to police departments. They might charge several hundred dollars to locate a phone - or up to $2200 for a full scale wiretap. When did this become a cottage industry for cell phone carriers?
While some police departments carefully require warrants to use phone tracking in non-emergencies, others claim broad discretion to get the records on their own, according to 5,500 pages of internal records obtained by the American Civil Liberties Union from 205 police departments nationwide.
The internal documents, which were provided to The New York Times, indicate that the practice is used far more often and with far more lax safeguards, then we previously knew. Given the Supreme Court's January ruling that placing a GPS tracking device on a drug suspect's car without a warrant violated his Fourth Amendment rights against unreasonable searches, there is certainly a lot of questioning now about whether some of the same reasoning in that case might apply to cellphone tracking. I think a LOT of its reasoning applies.
The article reported that California state prosecutors are advising local police departments on ways to get carriers to “clone” a phone and download text messages while it is turned off. I don't know about my readers, but that scares the heck out of me in a warrantless situation.
I was horrified to read the words of a Sheriff's Department in Ogden, Utah, which indicates that the department lets the carrier determine what the sheriff must provide. Really? Here's a quote: “Some companies ask that when we have time to do so, we obtain court approval for the tracking request.” When they have time to do so? I don't think so guys.
Small police departments in Arizona have determined that cell surveillance is so valuable that they have acquired their own tracking equipment to avoid the time and expense of having the phone companies carry out the operations for them. The police in the town of Gilbert spent $244,000 on such equipment. The article didn't say whether these departments always get warrants before using their own equipment, but the betting money says "no."
I hope that another landmark case on this issue makes its way to the Supreme Court soon. Many of us were astonished and delighted that a unanimous court required a warrant before law enforcement can use GPS trackers - and I am convinced that the court will once again demand warrants prior to the use of cell phone tracking.
Stayed tuned, in the next or two, for a wrap-up from ABA TECHSHOW 2012, which broke attendance records and was 2 1/2 exciting and exhausting days of learning on all kinds of legal tech topics, including e-discovery. That one will take a while to compile - and unpacking and laundry come first!
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