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.