This WEEK in LAW 47/Transcript
Cell phone tracking story
26 minutes in
Denise: So anyway let's go on to some of our other stories here today. David, I think this was you went ahead and tagged this today on Twitter. It was a Wall Street Journal law blog story about cell phone tracking?
David: Actually, that was Ben.
Denise: Ben, do you want to get us up to speed on that one?
Ben: Yeah, absolutely. So the US government has had a process in place for several years now where when they wanted the information, specifically historical information about where you have been, what they would do is that they would go to is go to a federal court and they would ask a judge to order the cell phone company. They would figure out what your cell phone number was and they'd get an order to get the cell phone company to hand over all of those historic records that were generated. So every seven seconds, your cell phone company will send a ping from a tracking tower to your cell phone and then it bounces back. And from that information, they can figure out what cell phone tower is nearest to you so that when a call comes in or when you dial out, well, when a call comes in, they can they can route to the nearest cell tower then get that out to you. So as a result of this, they have a log whenever your phone is on, every seven seconds where you are. How close they can get ranges from a 3-mile radius in really rural areas, to as close as 200 or even 50 feet in denser urban areas where there are a lot of cell towers. So they have this stored information and they've got it going back a long time. And the government would go into a court and ask the court under something called the Stored Communications Act to hand out this information. And I'm going to have to shuffle my papers here for a second. What was interesting is that under the Stored Communications Act, the government thought that they would be able to get this stored information based on a reasonable belief that the information is relevant to a criminal investigation, as opposed to when they need a warrant to show where they need to show probable cause that that information is relevant or would produce information about a crime that's already happened or a crime that's going to happen. And as a result of that, you have this lower threshold that the government has to show in order to get all sorts of information to know exactly where you are. It could show essentially, and this is one of the things a court mentioned, from this information, they would be able to tell where you live, where you work, what church you go to, that implicate your privacy interest, where you live, that implicate your freedom of association, where you go to meetings or where you go to church. And most of the judges who have come by this order -- and my understanding is that it was practiced for a long time -- just to try to get these orders using the lower standard. Most of the judges would just rubber stamp them. And a magistrate judge in Philadelphia, at one point, just said "You know what? No, I don't think you guys can do that under that." And the magistrate judge denied the order. And as a result, the government's appealed that. And some time today, in fact the argument was probably this morning, the government is going to argue in front of the 3rd Circuit Court of Appeals in Philadelphia, saying, "We should be able to get this information under the lower standard, under this easier standard where all we have to do to get this historic data is to have to prove that we've got an articulable reason. We can just say that we got a reason why you should give this information to us because it is pertinent to an ongoing investigation."
Denise: Right but they don't have to say anything about the substance of that investigation or otherwise satisfy a reasonable search and seizure kind of standard under the Fourth Amendment?
Ben: From the best that I can tell, no and the government was happy with that. But the judge, the magistrate judge who initially denied the order, said a couple of things. First of all, the Stored Communications Act doesn't apply to mobile tracking devices. And the judge said, "Essentially, what you guys are saying is you want to use these mobile tracking devices in everybody's pocket to track them." And as a result, the judge said, "Well, the Stored Communications Act doesn't apply to tracking devices. So you can't use this lower standard in the Stored Communications Act to do that." And the judge went on and said, "And because there's the privacy interest involved are so great for people. They have a reasonable expectation to believe that they are not going to be tracked by the government at every turn. The government is going to have to get a warrant to get these orders, to get the tracking data from the cell phone companies.
Denise: Right, so what's the solution here? Or is there one?
Ben: The solution is to cross our fingers and hope that the 3rd Circuit of the Court of Appeals agrees with the magistrate judge and then the district court judge who affirmed the magistrate judge. There's a weird system. Magistrate judges, in the federal system, are just below your standard district court judge. The district court judges are the people who hear trials. Magistrate judges will often hear motions before the trial to try to break up the load. So the magistrate judge hands down an opinion that goes to the district court judge, and then the district court judge the appeals court, and after the appeals court, you can petition to the Supreme Court to get a review of the case.
Denise: Right. Ernie, what do you think about the government having access to all this information?
Ernie: Well, I'm concerned about it. And I think that this is the sort of thing that when Scott McNeely said, "Privacy is dead, Get over it," he was talking about. I think when all of this flow of information was starting up and the Internet was a big deal in the beginning. I think this is what we were all worried about. What we thought would be the government using the data against us. And that is a concern and since we talked the other thing earlier, I think there's an interesting difference between the two because the real problem, the one thing that people keep running into, whether information is used in ways that they don't like is with the Facebook situation and the Google situation. Here, we have the threat that it's going to be used. And if you're really paranoid, then you'll really don't like this. But if you're just mildly paranoid, you don't really it. But it's not really clear how this is going to be used improperly. I'm sure it will be but we tend not to know this because it's not like the government uses this and then post it on their Google Reader feed or anything like that. I don't know. I think this should be an area where there should be legislation, where we should have a debate, a national debate, about what it is we want the government to be able to do with these types of information. And I think that is the kind of debate that can happen and should happen at the national level. And it would be interesting to see who rises up against stuff like this. I mean a lot of people who want to carry firearms and think that's their right in case the government does anything strange, don't seem to be rising up and complaining about this. Would they if they knew more about it? I don't know but I think that's where we should have this conversation.
Denise: Yeah. David, do you see any light at the end of the tunnel for geo-locationally hide information and how the government accesses it and uses it?
David: Well, I was really always concerned about being kidnapped in my sleep, and having some sort of implant put in my head. So I made a series of temporal hats which I keep handy just in case I need in case I need to worry about information being transmitted from my head. But it turns out the device was actually on my hip, the whole time, in my Blackberry holster. It's pretty disconcerting actually, I mean, if you think about it. These standards do exist for a reason and the standards for probable in order to get search warrants also exists for a reason and these are important reasons that people should be concerned about. And having the ability to go in and get that type of data under a less strict standard is just there's so many problems with that and how that could be abused. And I think in the past we've seen numerous scenarios where people in the government have abused those methods of obtaining information. And so something needs to be done about it. And I don't know if this is really going to rise to the occasion of some sort of legislative action where definitions are made more clear or at least, people have some sort of clearer understanding about how their data on cell phone is going to be used. I mean we're talking about the vices that everybody has in the country. I know a ton of people who don't even use landlines anymore. That's where our generation is. But now, do we really want to be tracked any where with geo-location tools? I don't know. Maybe something along the lines of an opt-in, opt-out kind of thing. And maybe having some special circumstances for some criminal investigations where you still have to establish the standards for probable cause and file all your subpoenas correctly in order to get that type of data. That seems to be, at least, a partial solution. I think we need to have more conversations about it. We need to understand how it's going to be used, how people are going to go about getting the data itself and, on top of all that, how do cell phone companies are going to be handling your data as well.
Ben: One thing that I'd love to see is some sort of system where I could choose what -- would my cell phone company or choose even a cell phone carrier that just didn't store this information, a cell phone carrier that they have a network or even a virtual mobile network operator or somebody who is piggybacking on somebody else's network who would just dump the data after a day, and it wouldn't be available. That's the kind of thing that even I would love to see for home Internet, a home Internet company that would just not log the data, not log a few addresses, not store that kind of information. And that I think would just be a fantastic kind of competitive solution to this kind of thing. And I mean I'd prefer the government wasn't trying to get this with less than probable cause but as far as other solutions, that to me would be almost ideal.
Denise: Aren't there data retention regulations that that might run afoul of? I mean, aren't companies almost required or isn't there even pending legislation where there are certain requirements they have to meet as far as the balance between tossing it out immediately and keeping it forever?
Ben: There may be. If there is, I'm not really familiar with it.
Denise: Yeah, I'm not 100% either but it strikes me that if a company were to do this, to be sort of the hush mail for Internet access or cell phone transactions, that they might face that kind of hurdle. But I'm not quite sure exactly regulatory-wise where they would stumble.
