Your Cellphone Is Spying on You

How the surveillance state co-opted personal technology

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Aficionados of the HBO series The Wire will remember the great difficulty Baltimore detectives had in obtaining permission to wiretap the public phones and cellphones used by drug gangs. What followed were long, fruitless stakeouts and boring nights and days listening for relevant calls, all in the face of ever-tighter budgets and hostile bosses with higher priorities.

What a difference a decade makes. “Most modern surveillance can be performed with a few clicks of a mouse, a fax, or a phone call to a service provider, all from the comfort and safety of the officer’s desk,” explains the ACLU’s Christopher Soghoian in his 2012 dissertation The Spies We Trust. Soghoian adds, “Telecommunications carriers and service providers now play an essential role in facilitating modern surveillance by law enforcement officers. The police merely select the individuals to be monitored, while the actual surveillance is performed by third parties: often the same email providers, search engines and telephone companies to whom consumers have entrusted their private data. Assisting Big Brother has become a routine part of business.” Big Brother and Big Business must part. 

As journalist Garret Keizer says in his 2012 book Privacy, “There are many good reasons to stand up for privacy, some having to do with building a good society, others having to do with living a tolerable life.”

By the Numbers

Modern digital technologies are making it simple and very cheap for agents of the state to find out where you are and where you have been, and even to predict where you’re going. In July, Rep. Edward Markey (D-Mass.) reported that wireless carriers responded to 1.3 million demands from law enforcement agencies for subscriber information in 2011, including location data, calling records, and text messages. Subsequent reporting bumped that number up to 1.5 million requests. Soghoian notes: “More than half of these requests were subpoenas, and were therefore likely issued without judicial review.” The amount of data is probably much greater than that number suggests, since a single request might involve a “dump” of all subscribers who connected to a particular tower during a specified period of time. In 2010 Sprint admitted that the company had over the years complied with 8 million requests from law enforcement agencies for customers’ GPS information. 

Between 1968 and 2011, by comparison, American law enforcement agencies obtained a total of just 46,988 wiretap orders, including 2,732 in 2011. During that period, Soghoian notes, federal and state courts rejected requests for wiretaps only 34 times. In 2011, 97 percent of wiretaps were for portable devices. The Wire also gets this right: The war on drugs was used to justify 95 percent of federal and 81 percent of state wiretap orders. 

Most of the requests for electronic communications and data transmitted by the cellphones, personal computers, and other digital devices remain forever secret. In a May 2012 Harvard Law and Policy Review article, U.S. Magistrate Judge Stephen Smith asks, “What is the most secret court docket in America?” Many people might think of the court created by the Foreign Intelligence Surveillance Act (FISA), which deals with requests for warrants to monitor suspected spies and terrorists. Since 1979 the FISA court has considered 28,000 secret warrant applications and renewals, turning down just five. By comparison, Smith calculates, in 2006 alone federal magistrate judges issued more than 30,000 secret search orders under the Electronic Communications Privacy Act (ECPA), which specifies minimal legal standards from government surveillance of cellphone and Internet communications. 

“To put this figure in context, magistrate judges in one year generated a volume of secret electronic surveillance cases more than thirty times the annual number of FISA cases,” Smith writes. “In fact, this volume of ECPA cases is greater than the combined yearly total of all antitrust, employment discrimination, environmental, copyright, patent, trademark, and securities cases filed in federal court.” This pervasive secrecy means police surveillance is rarely challenged because 1) law-abiding citizens never learn that they have been targeted, since their service providers are not allowed to tell them; 2) court orders authorizing surveillance are sealed and never made public; and 3) the public and Congress do not have access to systematic data on how often electronic surveillance is used. 

The Justice Department argues that obtaining geolocation data does not require a warrant based on probable cause. To obtain “noncontent” information such as email addresses, phone numbers, and locations, the DOJ says, law enforcement agencies need only present an appropriate judge with “specific and articulable facts” indicating that the information requested is “relevant and material to an ongoing criminal investigation.” Under the usual standard for a search warrant, police would have to show there was probable cause to believe the information they sought was evidence of a crime. Many local police departments have policies that are looser and more inconsistent than the Justice Department’s: Based on information from 230 law enforcement agencies around the country, the ACLU found that nearly all of the police departments acknowledged tracking cellphones, but “only a tiny minority reported consistently obtaining a warrant and demonstrating probable cause to do so.”

Warrants Wanted

Last January the Supreme Court provided hope that the rising tide of police surveillance might be stemmed. In U.S. v. Jones, it ruled that attaching a GPS tracking device to someone’s automobile and tracking him 24 hours a day for a month is unconstitutional in the absence of a warrant. Although that conclusion was unanimous, the Court was divided on the rationale for it. Anthony Scalia, in an opinion joined by four other justices, emphasized the trespass required to attach the tracking device. Samuel Alito and three other justices emphasized the nature and volume of the information collected by the surveillance, which they said violated reasonable expectations of privacy. As Alito noted, the majority’s reasoning would not apply to tracking via cellphone towers or GPS signals, which do not require a physical intrusion on the target’s property. Hence we do not know yet whether the Court will decide those kinds of surveillance require warrants.

The privacy coalition Digital Due Process argues that “the government should obtain a search warrant based on probable cause before it can track, prospectively or retrospectively, the location of a cellphone or other mobile communications device.” The coalition includes companies such as Google, Microsoft, Apple, Facebook, and Intel, along with advocacy groups such as the ACLU and the Competitive Enterprise Institute.

Requiring a probable-cause warrant is certainly better than merely articulating a reason the police might want to spy on someone. But warrant applications are rarely rejected by magistrates. Optimists would say that’s because the police and prosecutors draft them more carefully when faced with a higher standard. Pessimists would point out that prosecutors control all of the information provided to magistrates, who then have little choice but to rubber-stamp the warrants. “A warrant is actually not that high a standard,” explains ACLU legislative counsel Christopher Calabrese, “but it is the legal standard for kicking down the door to your house.” 

The Geolocation Privacy and Surveillance (GPS) Act, introduced last June by Sen. Ron Wyden (D-Ore.) and Rep. Jason Chaffetz (R-Utah), would require law enforcement agencies to obtain warrants for real-time and historical geolocation data. Calabrese says the language in the GPS Act is broad enough to cover location data from car navigation systems such as OnStar and GPS systems such as TomTom as well as cellphones. It would even cover data collected by location-based service providers such as Foursquare and Loopt or self-driving automobiles of the future.

Soghoian and Pell propose additional safeguards. They argue that Congress should require police to erase data when investigations are concluded and inform innocent people whose information is collected as part of an investigation within 90 days of completing it. They say requiring such disclosure would encourage cops to narrow their information demands, since “the cost of notifying 200 people will presumably be greater than that of notifying only 20.” Finally, since Congress and the courts cannot monitor and regulate what they cannot see, Soghoian and Pell want Congress to require that all court orders seeking location data be reported within 30 days and tabulated as to type and quantity in an annual report to Congress. 

Cultivating and maintaining a society of free and responsible individuals is impossible under the permanent Panoptic gaze of the government. Ubiquitous surveillance becomes indistinguishable from totalitarianism. “The ultimate check on government as a whole is its inability to know everything about those it governs,” Keizer writes in Privacy. In other words, state ignorance is the citizenry’s bliss.  

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  • Paul.||

    “Morals reformed—health preserved—industry invigorated—instruction diffused—public burthens lightened—Economy seated, as it were, upon a rock—the Gordian knot of the poor-law not cut, but untied—all by a simple idea in Architecture!”

    Sounds like your garden-variety progressive...

  • fish||

    P h o n y is somewhere....and he's fully turgid! Well as turgid as his fuzzy sock puppety goodness allows.

  • Zeb||

    I don't have a cell phone. So I guess I win.

    Am I the only one?

    I really just don't want people to be able to call me wherever I am. And they don't work at my house.

  • Paul.||

    I really just don't want people to be able to call me wherever I am.

    As a long-time cell phone owner, I can assure you there's a method for dealing with this (involves caller-id, off buttons and/or silent modes)... unless of course you're like my ex-wife who couldn't stand an unanswered phone. Then the problem is really yours, not that of a cell phone.

  • CE||

    Except that even when the cell is turned off, they can track you, and listen in on your microphone.

  • Zeb||

    Yeah, that all sounds good, but then next thing I know I'm one of those assholes standing in the street talking on the phone.

    Mostly, I just don't feel like I'm missing anything by not having one, so why bother getting one. Since it doesn't work at my house, I can't replace my land line, so it would be just another expense. There are probably about two times a year when I wish I had one.

  • GroundTruth||

    No, you are not the only one.

    (Well, OK, I have one in the glove compartment shut off, and only fire it up if I need help, at which point I actually want to be found. But the rest of the time, the silly thing is powered down.)

  • Scarecrow Repair||

    I have mixed feelings about this. What upsets me is not that the information is available but that the police get it and we don't. The info can't be bottled up. No legislation would ever convince me the government didn't have back door access one way or another.

    What I want is for this info to be available to everybody. I want to know where the cops are, the politicians, all the busybodies who have access to the information now through dubious legalities. I'd also like to know who has been accessing my information, but again, no legislation would ever convince me that the statist snoops didn't have back door access that I'd never learn about.

  • CE||

    Yeah, so why did it take so long for Carrie to toss Brody's phone? And why was no one looking for her car? Shouldn't she have had a used car handy that she paid cash for?

  • Fish999||

    People ask why I have Big Brother as my background on my phone. I tell them its a little reminder that at any time we are all being watched.

  • RussianPrimeMinister||

    Nobody, not the police, FBI, CIA, DEA, ATF, NSA, DHS, or anybody else working for our government should ever have access to this data.

    This is a blatant abuse of my personal privacy. End of story.

  • 4tehsnowflakes||

    Good article. You'd think more politicians would realize that a surveillance state affects them as well. When they are in the minority, how sure can they be that the majority party won't misuse its access to win political battles?

    A responsible journalist like Mr. Bailey can't engage in idle speculation, but we can, so I'll say it again. The technology exists to take over mobile devices remotely and transmit surreptitiously recorded sounds and images. I am waiting for the revelation that this kind of surveillance has been used by government agents in the US. Maybe even that would not be alarming enough to make more people demand a change.

  • Flatulent Monkey||

    This data that your phone is transmitting every so often is not sent in order to enable some Orwellian surveillance state, it is sent in most cases to ensure that the device in question can in fact communicate with the network. I don't have a problem with companies warehousing users' data, they, I would imagine, use this data to determine where they need shift resources to better serve their customers and I am sure that buried somewhere in the EULA there is a clause that covers this. That said, LEO access to this data as it relates to a criminal suspect does need to be subject to the same Fourth Amendment protections.

    This is an interesting subject for privacy law, are strings of numbers broadcast in the clear by a mobile device used primarily for network house keeping constitutionally protected? Is there an expectation of privacy?

  • Flatulent Monkey||

    I also would be curious as to where this 150 foot number comes from. That seems to imply that the network can triangulate your location, I don't think this is the case. I believe your phone can only "talk" to one tower at a time and these towers do not really give you a line of bearing either. It would seem that the accuracy of the location derived from these pings would necessarily vary wildly depending on the density of the network infrastructure.

  • Henry||

    "Believe?" Belief is only for when no rational data is available. Not bothering to seek out the data doesn't qualify.

    http://searchnetworking.techta.....angulation

    Your phone can only "have a conversation" with one tower at a time, but that doesn't prevent other towers from "overhearing" your phone, even when it's idle.

    True, if there is only one tower in an area (like a rural location) no triangulation is possible. But those places shrink every year.

  • wanderlustmisfit||

    fuck the government. the corruption is going to burn, baby, BURN!

    Hope you have a nice day tracking my internet presence, officers.

  • Henry||

    “the cost of notifying 200 people will presumably be greater than that of notifying only 20…"

    Classified ad, to be printed and ignored with all of the other "John bought a business license" ads.

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