The Battle for Warrants and Phone Data
A fight over police access to phone data is brewing, as lawmakers push for new laws to protect individual data privacy rights while courts rule police can access phone data without a warrant.
As law enforcement gained access to 1.3 million people's mobile phone data without a warrant last year, but one Congressman is pushing a bill to prevent what he sees as an increasingly common violation of privacy. U.S. Rep. Ed Markey (D., Mass.) is continuing his crusade to protect data privacy through the Wireless Surveillance Act of 2012. The Congressman has backed several efforts to expose how companies and officials gather data, and this latest effort focuses on curbing police access to data without warrants.
The proposed law coincides with news that the U.S. Sixth Circuit Court of Appeals upheld warrantless mobile tracking as a part of modern police work. The federal appeals court in Cincinnati ruled police can track a phone's signals without a warrant.
The case concerned the Drug Enforcement Administration's usage of cell phone data to track a drug runner's movements. Agents used the GPS data from his pay-as-you-go phone to track the mule, Melvin Skinner, who was arrested in 2006 in Texas at a motor home in part to due tracking data on his phone. Skinner appealed his drug trafficking conviction, arguing data on his phone couldn't be used because the DEA violated his Fourth Amendment rights by failing to obtain a warrant.
However, the Sixth Circuit ruled the DEA did not violate Skinner's constitutional Fourth Amendment rights, saying Skinner cannot expect privacy with the usage of a pay-as-you-go phone for illegal purposes. The question of privacy expectations and phone data extends beyond Skinner's case, and with law enforcement arguing overall that investigations don't need warrants to access essentially public data, several courts are grappling with the issue. Markey's proposed law will likely add another wrinkle as the debate over phone data, police work and privacy intensifies.
Laws to Keep Police Out of Phones
Markey's proposed legislation will add another obstacle to police attempting to harness huge stores of phone data in their police work. The Wireless Surveillance Act aims to tighten the surprisingly lax rules which allow police to acquire GPS and personal mobile phone data. It's easier to get the information than it is to search a home or car, as carriers amass piles of valuable personal information.
The act requires police to explain why they are requesting the information and get a judge's approval first.
The Wireless Surveillance Act still allows police access to the data, and it mirrors the warrant procedure they must follow to get access to personal information elsewhere. The reasoning is, if the police don't have a practical reason to rustle through a woman's purse, or scan someone's home computer, they probably don't have reason to get access to their text messages or mobile GPS.
Police often cite kidnappings and emergency scenarios as justification for immediate use of the data, which many see as valid. Markey's proposal will either give these claims credence or expose privacy violations, since it would keep a record of why law enforcement wanted the data.
The act also asks providers to destroy the data they're collecting after a set amount of time, to curb prolonged data stockpiling. This could affect carriers' attempts to keep information anonymous and sell it to big data, so they are unlikely to support the legislation.
Part of Markey's Bigger Fight
Before the current act, Markey probed Amazon for the way it stores and uses data from Kindle readers, and released a draft of the Mobile Device Privacy Act holding carriers accountable for how they use tracking software.
As he co-chaired the House Bi-Partisan Privacy Caucus with Rep. Joe Barton (R., Tex.), Markey looked at Groupon's data collection as well. He wants to limit personal data storage across the board, with an equal interest in the potential for both corporate and government abuses.
For every reasonable search to track down a missing child or catch a killer, there may be unknown others that violate the rights of innocent private citizens. The appeals court ruling shows how different parts of government disagree on the privacy issue, which will likely continue dividing legislators, public safety proponents, privacy advocates and judges.
Carriers Fend Off Big Brother, But Not For Long
Government officials are bombarding phone carriers with requests for customer information, highlighting an increase in surveillance threatening consumer privacy.
After a Congressional inquiry, mobile carriers assembled their first comprehensive report of government surveillance requests, and the results astonished lawmakers. Thousands of requests come in a day, with carriers churning out information on millions of customers.
The carriers' report backs up information from an ACLU investigation, which also tracked a sharp upswing in requests for mobile phone information.
An Avalanche of Surveillance Requests
The report revealed how carriers worry about the breadth of the requests, especially if they think such requests will violate privacy without a legitimate reason.
T-Mobile even contacted the FBI to report alleged abuses from other law enforcement agencies, and the New York Times explained "a number of carriers reported that as they sought to balance legitimate law enforcement needs against their customers' privacy rights, they denied some data demands because they were judged to be overreaching or unauthorized under federal surveillance laws."
Several carriers voiced their desire for clearer protocol for turning over information, since much of the activity falls into legally murky waters. Although several states require law enforcement officials to get a warrant before plumbing cell records or tracking locations, situations viewed as an emergency are given a pass.
A Desire to Decline
Of course, when a heinous crime occurs, it makes sense to give police every tool possible to help catch a criminal or prevent further havoc, and the information provided by mobile phones can be priceless.
At the same time, granting carte blanche to law enforcement represents an egregious privacy violation, and the current standards offer no clear guidelines about what makes up crossing the line. The sheer volume of requests could illustrate possible abuse of the privilege. This dovetails with information from the ACLU's report, which highlighted how police track suspects in routine investigations as well as emergencies.
The major carriers did not report how many of the requests they rejected, but smaller carriers outlined their aversion to turning over unnecessary information, and the New York Times reported C Spire declined around 15 percent of requests. The carriers' concerns mirror the disapproval voiced by both Google and Twitter in recent transparency reports, where both major Internet companies revealed the extent to which government officials are requesting information.
Google and Twitter both revealed fairly detailed information about when they rejected data inquiries, and Google asked governments to stop requesting data that should be kept private.
Big Brother's Long Shadow
These technology companies cannot keep governments at bay. The report by U.S. carriers underlines how quickly law enforcement embraced mobile technology surveillance, and how this type of monitoring deeply endangers personal privacy. For every legitimate emergency request, there are others motivated by wanting to cut corners or possibly even to dig up information law enforcement officers don't have a warrant to seek out.
The result is a practice that now skirts provisions designed to stop undue surveillance of private citizens. The laws haven't caught up yet, and until each state creates a coherent policy, people are in danger of seeing the privacy trampled under the pretense of hunting down criminals.
As technologies continuing to emerge that make it easier to keep a close eye on people -- Facebook's facial recognition software springs to mind -- it is more vital than ever to establish clear protocol for accessing sensitive information. Without better regulations, this explosion in government tracking and voluminous information gathering is unlikely to subside. ♦
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