Ed Markey Looks Into Warrantless Cellphone Tracking


In response to a recent New York Times story about warrantless cellphone tracking, Rep. Edward Markey (D-Mass.) wants to know how common the practice is and what rules wireless carriers follow in dealing with information requests from law enforcement agencies. Yesterday Markey, who serves on the House Energy and Commerce Committee and co-chairs the Congressional Bipartisan Privacy Caucus, sent letters to nine carriers, asking questions like these:

1. Over the past five years, how many requests has your company received from law enforcement to provide information about your customers' phone usage, including but not limited to location of device, tracing phone calls and text messages, and full-scale wiretapping?

a. How many of these requests did your company fulfill and how many did it deny?

b. If it denied any requests, for what reasons did it issue those denials?

2. What protocol or procedure does your company employ when receiving these requests?

a. Do you consider whether law enforcement has obtained a warrant to obtain this information?

b. Does your company distinguish between emergency cell phone tracking requests from law enforcement and non-emergency tracking requests? If yes, what are the distinctions?

The Times reported, based on documents obtained by the American Civil Liberties Union from about 200 law enforcement agencies, that police commonly seek cellphone location data without a warrant. Some departments inisist on a court order, some make exceptions for special circumstances, some routinely ask for cellphone data without a warrant, and some let carriers decide whether judicial authorization is necessary. That last option, dubious enough on its face, is even more troubling when you realize that carriers often charge police for cellphone information, so they have a finacial interest in betraying their customers' secrets (another issue Markey is investigating). "Law enforcement agencies' tracking policies are in a state of chaos," the ACLU concluded, "with different towns following different rules—or in some cases, having no rules at all." 

As I explained last month, the chaos stems from uncertainty about the constitutional and statutory constraints on surveillance methods that do not involve eavesdropping on calls or physically intruding on the target's property. In U.S. v. Jones, decided last January, the Supreme Court said police need a warrant before they can attach a GPS tracking device to a suspect's car. But the Court did not address surveillance using the tracking devices that people voluntarily carry in their pockets, so police are making up the rules as they go along. Clarity will have to come from future rulings or legislation (probably both). In the meantime, it helps to have a sense of how much spying is going on without judicial review.

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  1. Holy shit!

    It took 20 years, but my congressman finally did something that didn’t make me want to kick him repeatedly in the balls until I stopped hating the state.

    True story, as an Ensign fresh out of OCS, I was stashed for a month at NRD Boston pushing papers in their ROTC recruiting division. At the time, the Navy was hurting for nurses, so any warm female with a high school degree and no felony convictions who wanted to become a nurse was accepted into the program. The only question was how quickly could we get their enrollment packet out to them.

    One day Congressman Markey calls. He has a niece, he tells me. She wants to be come a nurse, he tells me. He wants me to take care of it. He mentions he is a congressman at least three times, with menacing pauses after each one. I told her I’d send the packet to her, acting as if this was a big deal and I was treating his niece specially.

    The master chief I was working for came back from his smoke break, and practically shit himself in horror at the prospect of an ensign talking unsupervised to a congressman.

    And we mailed the congressman’s niece her packet, just as we would for anyone else. I left for Nuclear Power school before she had a chance to mail it back, so I have no idea what came of the whole affair.

    1. I’m with you tarran. I read that article three times looking for the newest dumbass idea from Rep Markey and was amazed to not find one.

      1. It’s like congressmen think they’re more important than the military or something.
        No wonder your CO was wigging out.

    2. It would have been funny if she had a conviction.

      1. Why? A niece of a congresscritter is not likely to have any felony convictions…if you get my drift.

      2. Nah, the Navy was giving out waivers as if the office was being run by Johann Tetzel.

    3. What’s that? Sorry, I lost the thread after “warm female.”

      1. I’m told they all looked like this (SFW).

        1. Those can’t be real.

    4. Markey has been a MA congressman for, like, forever. I lived in Boston in the mid-70’s and he was my congressman (and a total jackass) even then. I haven’t been paying much attention to him in the intervening 35+ years (I guess I had just assumed [hoped?] that he had died or something), but here he is. I share everyone’s amazement that he actually seems to be doing something which appears sensible. This was probably a mistake by some young staffer which won’t be repeatsed; this isn’t something he could possibly have come up with on his own.

  2. Wow, someone whose name ends with (D-MA) finally did something palatable! Of course, now he’s just on my radar for when he fucks up good.

    1. +1 also.

  3. The part where pigs pay for it is bullshit. That should be inadmissible in a court.

  4. If you plan to commit a serious crime that might be linked to you, leave your phone at home.
    Then you can say “I was at home at the time. Check my cell phone location records!”

    1. I was just wondering how long it will be before not having your cell phone with you when you leave your home will be illegal–“obstruction of justice” or some such.

      1. I wouldn’t put it past a prosecutor to level that charge against someone who deliberately left their phone at home before committing a crime in order to create a false alibi.

        1. If you don’t have a cell phone, you’ll have to carry a GPS beacon on your person. Especially when you go to the bathroom.

        2. Yeah, but I figure it will eventually be a crime all by itself–if a cop stops you for any reason (or none at all) and you can’t produce a cell phone you’re “obviously a terrorist” and accordingly busted.

          1. Once a cell phone is declared to be a basic right, everyone will be mandated to have one. And if you can’t afford one, you can get a special deal through the government. Kinda like health insurance.

            1. 10-15 years the thing will be implanted behind your ear.

              1. It will be longer and a tough sell.
                My guess is that it will start with the most subhuman of humans out there: sex offenders.
                After that it will be felons, then anyone going to jail, then anyone arrested, then public schools, and finally at birth.

              2. That’s optimistic, Tim. I’d say it could be done in the next five years or so.

  5. Which Police Department got Congressmen Markey’s tracking report?

  6. Once again, SLOWLY, for the anarchist liberterrorists:

    “If you’ve done nothing wrong, you have nothing to fear.”

    Good lord – for a magazine called REASON…

    1. Thanks, I needed a beer!

      1. these days I need whiskey… and lots of it.

  7. You pay for your phone and phone service. Therfore the mere pocession of a phone means you are engaging in commerce. The commerce clause says that anytime you are engaging in commerce the constitution is null and void. game, set, match.

    1. Very good point.

      Also, “necessary and proper”. Good and hard.

  8. This is nice. Too bad nothing will come of it.

    1. It’s an election year.

      1. Let the grandstanding commence!

  9. I hope Markey brings his findings to the attention of President Obama, who I’m sure will want to prosecute telecoms that illegally supplied user data to the federal government.

  10. I thought his name was Markey Waxman.

  11. 1. Over the past five years, how many requests has your company received from law enforcement to provide information about your customers’ phone usage, including but not limited to location of device, tracing phone calls and text messages, and full-scale wiretapping?

    I’m confused. Serious question: What real information would Markey’s inquiry bring?

    It’s my understanding that if a major carrier receives a “National Security Letter”, the carrier isn’t allowed to discuss the fact that they even received the request, let alone what the nature and content of the request was.

    In my estimation, Markey is asking a question which by law, cannot be answered.

    1. To be clear, I know that they report the number of times the North Platte PD asked them for phone records when investigating a breach of a no-contact order. But Markey’s question seems to be dancing around the federal level. Am I right about that?

    2. What real information would Markey’s inquiry bring?

      I would imagine…not really any, even under a congressional inquiry.

      That’s an excellent question, Paul. Any barristers wish to take this one? RC, I’m looking at you.

      1. Hmm? Sorry, I’m still stuck on “warm female”.

        Oh, what will Markey’s letter get us?

        Probably not a whole lot. He’s not after federal-level national security stuff. He’s wanting to know what the local po-po does. It might be kind of interesting.

  12. OK now there is a dude that knows what dayhe week it is.

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