Surveillance

Law Enforcement Cell Phone Spying Still Rampant—Senator Markey To Propose Legislation To Protect Privacy

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Cell phone tracking
Fortytwotimes

Back in 2012, Sen. Edward Markey (D-Mass.) asked the telephone companies to supply records of the number of times law enforcement asked for their customers cell phone data. It turns out that the wireless surveillance of Americans is quite extensive. The telcos revealed that they had received 1.3 million requests for wireless data from federal, state, and local law enforcement in 2011.

This year, the telcos reported to Markey that they received 1.1 million requests for cell phone data from law enforcement in 2012. The New York Times notes that this figure is not comparable to the 2011 numbers because Sprint declined to answer all of the senator's queries. In a press release from his office, Sen. Markey declared:

"As law enforcement uses new technology to protect the public from harm, we also must protect the information of innocent Americans from misuse. We need a 4th amendment for the 21st century. Disclosure of personal information from wireless devices raises significant legal and privacy concerns, particularly for innocent consumers."

The senator further noted: 

"If the police want to know where you are, we should know why. When law enforcement access location information, it as sensitive and personal as searching an individual's home and should be treated commensurately."

The Senator plans to introduce legislation that would curb law enforcement cell phone surveillance: The legislation would…

  • Require regular disclosures from law enforcement on the nature and volume of requests.
  • Curb bulk data information requests such as cell tower dumps that capture information on a large group of mobile phone users at a particular period of time, and require that any request be more narrowly tailored, when possible.  
  • Require, in the case of emergency circumstances, a signed, sworn statement from law enforcement authorities after receipt of information from a carrier that justifies the need for the emergency access. 
  • Mandate creation of rules by the Federal Communications Commission to limit how long wireless carriers can retain consumers' personal information.  Right now, no such standards exist.
  • Require location tracking authorization only with a warrant when there is probable cause to believe it will uncover evidence of a crime. This is the traditional standard for police to search individual homes.

In my January 2013 article,"Your Cell Phone is Spying on You," I argued:

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. 

Probable cause warrants should be the least requirement for giving the police the power to spy on individual citizens.

Go here for the telco reports sent to Markey.

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  1. Tying the hands of the noble souls desperately trying to keep us safe from terrorists and other hobgoblins.

  2. What are the penalties for violating this law?

    None?

    Legislative onanism, then.

    1. You have read the legislation he says he is going to introduce?

      1. Bo, I know Markey; he was my congressman. Hell, I even spoke with him personally when I was a Navy recruiter and he wanted special favors for a niece who wanted to be a nurse.

        He’s a fascist, through and through. If it’s like other laws that scumbag, that hater of the poor, it will sound good, but when one digs into it will merely empower the state more.

        I could be wrong. A blind squirrel finds a nut occasionally; a scientific illiterate like Markey can occasionally state a truth (not that I have heard him ever get anything right as he shills for his doomsday cult of CAGWism), and it’s possible that a fascist like MArkey can promote civil liberties.

        It’s about as likely as Obama deciding to tell the truth, or Bolton being in favor of leaving an inimical country unbombed.

        1. Thanks for the link to Charles C. W. Cooke. I’ve been a fan of Cooke since his little slavery dust up on Bill Maher:

          “The slavery point, I think, is cheap,” Cooke responded.

          http://www.mediaite.com/tv/nat…..ry-a-flaw/

  3. “We need a Fourth Amendment for the 21st Century…”

    Huh. How about…um….I dunno…..THE FOURTH AMENDMENT?

    Just a thought….dumbass.

    1. Yes, it makes no sense to me. I mean, I understand why the government wants infinite power, but I don’t understand why we let it try to get it.

      1. We’re just one more an infinite number of regulation(s)/law(s)/Executive Order(s) from perfection…

        1. I don’t see a real reason to ditch plausible sauce or whatever that thingee used to be called because our conversations and data sharing are easier to monitor now.

          1. Lolopaloozuzubuh Pause….or something. I know what you’re talking about.

            But that was SOOOOOO 100 years ago.

            We need A Living Constitution?, to account for the ZOMFG!!11 30 round assault clips!111! and teh internetz.

    2. But that fourth amendment is like really, really old.

    3. The problem is that under originalist interpretation it is unclear that the 4th Amendment would cover metadata. Is it a person, paper, house or effect?

      1. It’s only unclear to a statist. Individualists look at such things in the most-expansive way that would protect rights/limit the government’s power.

        Not even a close call if you value More Freedom/Less Government.

        If not – then, yeah, it gets SOOOOO confusing! And what did they MEAN! And we can’t ever really KNOW! And there were conflicting IDEAS!! And….

        1. Those hairs aren’t going to split themselves.

          1. Yes, legislators should totally ignore how the Courts are currently interpreting the 4th Amendment (who cares about such hair-splitting) when trying to address these problems, and instead pass the most ideologically pure legislation possible with no thought to judicial review.

            Talk about onanism.

            1. Legislators are not prohibited from placing additional restrictions on the police (state), regardless of current interpretations of the 4A. While stripping away 4A protections by law should be judicially reviewed and overturned, there is no Constitutional claim against additional protections.

              1. Yes, this is in support of what I am saying.

                Currently courts are allowing this under the 4th. Markey is introducing additional protections. That is a good thing.

              2. We phrased.

        2. Under originalism the question would be, what did the Founders think would be a person, house, paper or effect, and is telephone metadata essentially one of those? That is not an obvious question.

          Of course if you reject originalism then things are easier.

          1. It seems clear to me that metadata is a paper or effect of the *telephone company*, not the individual.

            We need to start with that premise, not with the premise that information one voluntarily transmits to a third party means the third party is under some obligation to protect it. These records are the *phone company’s* to do with as they will, not yours.

            1. I think we should dispense with the premise that information given to a third party is *unprotectable* by that party – those records are work product created jointly by me and the phone company and I and the phone company should be able to come to a contractual agreement on their disposition.

              1. Especially since the FCC gets all over a company for just using that data internally or even just not properly protecting it, let alone sharing it with outside parties.

        3. ^Yeah, this.

      2. Is there any evidence this question relates only to metadata?

      3. Uhm, how about a paper?

        I mean its not like ‘papers’ *literally* means shit written down on paper any more than ‘press’ means a printing press.

        1. The press gets interpreted as an activity, but papers usually refers to a thing.

          I am fine with considering a text or metadata like a paper, or simply within the general principle of the 4th, I am just noting it is not obvious for an originalist.

          1. I would consider myself an originalist, and “papers & effects” is perfectly obvious in the context of the entire document. “effects” is a catch-all, like the ninth Amendment, so that the cops can’t say “oh, you didn’t list that”. The fourth protects anything that is not plainly sensed by the unaided eye, ear or nose of the cop walking down the street.

  4. No one has anything to hide unless they’re doing something wrong.

    1. PS What’s considered “wrong” is subject to the whims of whoever is in power at any given moment.

      1. TOP. Men…

  5. Speaking of law enforcement…
    http://www.tmz.com/2013/12/09/…..collision/

    1. “was in the bike lane when he was struck”

      Cop: “If you don’t like my driving, get off the sidewalk!”

      1. That’s going to be a couple million at least. Just add it to my tax bill.

  6. if you want data to see if someone was texting when a car wreck occurred, then it makes some sense. If only there was a system through which requests for things like this could flow, a system where LEOs asked what they wanted and explained the reason for wanting it, a system where ‘no’ was a viable answer to their question, and where telcos realized that their consumers come before state inquisitors on the pecking order.

    1. LOOPHOLEZ TO PROTECT THE GUILTY! NO! SPECIAL VICTIMZ UNIT ALWAYS GETS SLOWED DOWN BY THAT STUFF!! WHAT IF IT WUZ YORE KID, HUH??!! THEN YOU’D BE TAPDANCIN’ A DIFFERENT…DANCE! OR SOMETHING!

    2. Hmm, the problem with finding out if someone was texting during an accident is matching up the timelines – a five minute discrepancy between when the phone company’s server says you sent a text and when the cop says the accident occurred is huge.

  7. If a worthless hack like Markey is talking about the issue, then someone with principles ought to be able to do something.

    1. Yes, let us attack the guy trying to help. That is always useful.

      1. HAving talked with Markey personally, I can tell you that he is an unprincipled piece of shit.

        10 bucks says that the law he drafts will be toothless; it’s likely to be yet more of the legislative porn like everything proposed by the MA delegation. More laws to perfect society comrades!

        1. Look, even if he never proposes a bill he has done something useful and important by exposing what is going on here. Reason seems to recognize this.

          Secondly, let us wait until his legislation comes out to see if it is less adequate than we would like to see. But even were it so I think it better than the politicians who are doing nothing in this area or worse, supporting it.

      2. I see where you could interpret my words that way. What I was trying to say is that this is an important issue, and I’m surprised a guy like Markey is stepping out in front. I don’t like him, but I’ll give him credit where it’s due.

        1. Ah, I see tarran is familiar with Markey.

          1. -I don’t like him, but I’ll give him credit where it’s due.

            Well said. I am sure Markey is consistently anti-liberty, but let us wait until he is being so to criticize him, not the rare instances where he is doing something right.

          2. I still take pleasure in the fact that I pretended I was doing him a huge favor when in fact we were so desperate for nurses that we were waiving misdemeanor pot possession charges in order to get enough warm bodies into the program.

            The dude walked away from that conversation very happy to have browbeat some lower-caste individual (the emphasis he put on the word Congressman, and the contortions he went through as he contrived to insert it into every other sentence was at first intimidating, then infuriating, and then finally just pathetic). I threw the same packet I would have thrown in the mail if the silly girl had just called us herself and asked for one.

            Sometimes I wonder if the girl made it through the program.

  8. Wait a minute! Why do we need ANY “new laws”, when the President (PBUH) can do whatever he wants because “necessary and proper” and Executive Privilege Order Smackdown and “stuff”?

    I think it’s all there and we just need to pray hard enough to the President (PBUH) that he notices, takes pitty on us, and acts.

    simple!

  9. Good for Markey. I hope he can get Amash to co-sponsor in the House and Wyden and Paul in the Senate.

    1. Markey would rather die than cooperate with anyone associated with the Tea Party.

      He’d withdraw his bill first. Seriously.

      The man is that big a scumbag.

  10. We need a 4th amendment for the 21st century.

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    Seems pretty clear cut to me. We don’t need a “21st century 4th ammenmend,” we just need the courts to actually recognize that in the 21st century, digital data is included in “papers and effects” and that just because someone has chosen to share that information with a 3rd party (their cell phone company) that doesn’t give the government carte-blanche to paw through it whenever it strikes their fancy.

    1. Sure it seems clear to you…you’re probably just a simple country lawyer without alot of that fancy big-city book learnin’.

    2. Well, yeah, problem is… the courts DON’T recognize digital data stored on third-party servers as protected by the 4th Amendment. I totally agree that the interpretation of the 4th allowing the government to rifle through information stored with third parties is completely reprehensible and “needs” to be changed…. I’m waiting for my nomination to the Supreme Court to come in the mail ANY DAY now so I can (try to) change it myself.

      Leaving the courts to interpret this area of law WITHOUT Congressional guidance has led to this perversion of the 4th Amendment. I think that’s what Markey means by his statement: the courts have completely misinterpreted the 4th Amendment and it’s long past time for Congress to limit that interpretation.

      1. Of course, it’s much more likely that Congress will simply test the outer limits of the Court’s misinterpretation rather than do anything to protect the people…. but that’s just me being cynical.

  11. “We need a Fourth Amendment for the 21st Century…”

    The Fourth currently only covers documents written with quill pens, in blood.

    Duh.

    1. The Yangs and the Comms already have a 4th ammendment for the 23rd century, so we just need to get these middle ones in place.

  12. But Ron, by not offering your data up to law enforcement, you’re possibly putting other people in danger, ergo you have no libertarian reason not to freely give up all your privacy rights to law enforcement.

    1. Vaccinations, on the other hand, are another story. Probable cause warrants should be the least requirement for giving the police the power to inject individual citizens with vaccinations against their will.

  13. Curb bulk data information requests such as cell tower dumps that capture information on a large group of mobile phone users at a particular period of time, and require that any request be more narrowly tailored, when possible.

    I have some suggested language for this. How about “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

  14. legislators should totally ignore how the Courts are currently interpreting the 4th Amendment

    You know who else thought the Congress should totally ignore SCOTUS precedent?

    That’s right.

    Dred Scott.

    1. + 1 Race Card

    2. + 1 Race Card

    3. or 2 Race Cards

  15. An oldie but a goodie on privacy expectations and the 4th Amendment:

    http://www.wweek.com/portland/…..bish_.html

    Portland’s top brass said it was OK to swipe your garbage–so we grabbed theirs.

    We chose District Attorney Mike Schrunk because his office is the most vocal defender of the proposition that your garbage is up for grabs. We chose Police Chief Mark Kroeker because he runs the bureau. And we chose Mayor Vera Katz because, as police commissioner, she gives the chief his marching orders.

    Each, in his or her own way, has endorsed the notion that you abandon your privacy when you set your trash out on the curb. So we figured they wouldn’t mind too much if we took a peek at theirs.

    Boy, were we wrong.

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