Virtually all of the 200 law enforcement agencies that responded to public records requests filed by the ACLU track cellphones without warrants, with several falling far short of probable cause, according to a new report.
The report comes as the intersection between technology and privacy reaches a crescendo. Concerns over Google's new privacy policy, recent tracking software and Facebook's Timeline are making many Americans squirm over the invasiveness of the sites and devices that define our lives. It's apparent law enforcement -- usually in the pursuit of investigations, mind you -- can and will find out who you are and where you are if they need to, as anyone who watches any TV crime procedural knows is par for the course.
It's been about a year since the last major dustup over cellphones and privacy, when surreptitious location tracking on mobile devices stirred Congress into action, prompting even Steve Jobs to respond to the allegations.
More recently, the presence of the Carrier IQ tracking software on many cellphones has sounded panic bells among privacy advocates, leading to a proposed cellphone privacy bill. The ACLU filed nearly 400 requests under freedom of information laws in the fall asking state and local agencies about "policies, procedures and practices for tracking cellphones."
In a statement, the ACLU said:
The responses varied widely, and many agencies did not respond at all. The documents included statements of policy, memos, police requests to cell phone companies (sometimes in the form of a subpoena or warrant), and invoices and manuals from cell phone companies explaining their procedures and prices for turning over location data.
But, the report shows the vast majority of the agencies from 20 states responded that they did engage in some kind of cellphone tracking, with New Jersey and North Carolina responding with the most instances. Only 10 agencies reported that they did not track cellphones.
In Chatham County, North Carolina, law enforcement practices "real-time GPS tracking of cell phone on 'reasonable suspicion' standard," including other numbers tied to their targets.
Catherine Crump, staff attorney for the ACLU Speech, Privacy and Technology Project, told msnbc.com of some of the more egregious findings:
We discovered that police in Cary, N.C. requested from Sprint a list of all phones that had used a particular tower -- meaning they were obtaining sensitive information about many people they had no reason to suspect were involved in a crime. We also discovered that several agencies deliberately try to keep secret the fact that they engage in cell phone tracking. An Iowa City police training manual instructs officers, "Do not mention to the public or the media the use of cellphone technology or equipment used to locate the targeted subject," and also advises officers to keep that information out of police reports. Finally, some police departments find this information so valuable that they have purchased their own cell phone tracking equipment. Police in Gilbert, AZ, for example, spent $244,000 on cell phone tracking equipment.
At the opposite end of the spectrum are the officers in Lexington, Kentucky: "In regard to the acquisition of cell phone location records, data, and/or information, such items can be obtained only with a search warrant."
While the ACLU found "most law enforcement agencies that responded engage in cell phone tracking for investigative purposes," other agencies tracked the devices for other purposes, such as locating missing persons.
The report also found how compliant major carriers were to law enforcement requests, and how "there are hundreds of invoices from mobile carriers to law enforcement agencies that contain pricing data."
One example from Tuscon, Arizona shows "T-Mobile charges $150 for one hour's worth of data about what phones were near one particular tower," while other documents uncover charges of $30 to $60 from Verizon Wireless for "15 minutes worth of tower data."
Documents from local law enforcement, such as the Bellevue Police Department near Seattle, reveal requests to carriers made through "911 Exigent Circumstances" form that covers suicide attempts, missing pesons, assaults and other instances where "one or more people face immediate danger of death or serious bodily injury." While they can request historical information -- and some departments do -- in Bellevue at least they stick to current subscriber and billing information, as well as real-time data in locating the number in question.
Mobile carriers are also retaining user information for months, even years, with Verizon keeping location records for "one rolling year," while "T-Mobile keeps them for 'officially 4-6 months, but really a year or more.'" Sprint holds onto them for 18-24 months and AT&T "since July 2008."
Crump told msnbc.com that the ACLU has "not aggregated the amount of money that mobile carriers have received nationally from law enforcement through the disclosure of location records. It is likely, however, that this number is substantial."
As for responses to the report, Crump said, "So far, we haven't heard of any agencies changing their standards for cellphone tracking. Although the state of the law is confused, and each police department seems to have its own standards for when and how to engage in this tracking, we're not aware of any agencies rethinking their policies in light of our inquiries. Many agencies have refused to give us any information about their use of cellphone tracking, claiming the public records laws exempt them from having to disclose this information."
That's where the ACLU differs from law enforcement, as Crump told us:
The public has the right to know under what circumstances their local police are tracking cellphones. Location information is sensitive, and can paint an intimate portrait of someone’s life. It can reveal their daily routine, and deviations from that routine. It can reveal where a person goes to the doctor, who his or her friends are, and what political or civic organizations he or she patronizes. This isn’t the sort of information law enforcement agents should be collecting without the safeguard of going to a judge and proving to that judge that there is a good reason to believe that a search will turn up evidence of a crime.
In a statement, the ACLU said it:
supports bipartisan legislation currently pending in both the House of Representatives and the Senate that would address this problem called the Geolocation Privacy and Surveillance (GPS) Act. It would require law enforcement officers to obtain a warrant to access location information from cell phones or GPS devices. It would also mandate that private telecommunications companies obtain their customers’ consent before collecting location data. At least 11 state legislatures are also considering bills related to location tracking.
It also provides an interactive map of the agencies and their responses. Clicking on the map opens up links to the documents, so you can check out what's going on in your own backyard, if local law enforcement in your area was part of the records requests.
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