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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.”
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.