The New York Times
The information represents the first time data have been collected nationally on the frequency of cell surveillance by law enforcement. The volume of the requests reported by the carriers — which most likely involve several million subscribers — surprised even some officials who have closely followed the growth of cell surveillance.
“I never expected it to be this massive,” said Representative Edward J. Markey, a Massachusetts Democrat who requested the reports from nine carriers, including AT&T, Sprint, T-Mobile and Verizon, in response to an article in April in The New York Times on law enforcement’s expanded use of cell tracking. Mr. Markey, who is the co-chairman of the Bipartisan Congressional Privacy Caucus, made the carriers’ responses available to The Times.
Phone tracking isn’t new. The volumes, of requests, however, are an issue in themselves. By ratio, 1.3 million requests is a pretty hefty proportion of cell phone users across the board relative to the total number of users.
It also means a lot of “live” law enforcement is happening in real time or something very like it. The type of police work involved usually relates to active criminal investigations, with a delay factor created by processing.
The legal issues in this area are potential Constitutional issues for United States citizens. The Fourth Amendment covers the issue of warrants, and the phone tap demands are effectively seen as “no warrant” requests by privacy advocates.
The phone companies aren’t happy. They’ve rejected some demands, referred others to the FBI, and aren’t too happy about the fact that they’re often not getting paid for providing the information, when they’re legally entitled to cover their costs.
The issues are a lot trickier than they look:
There’s no doubt that modern law enforcement can’t operate at paper speeds any more- It’s a Keystone Kops scenario. Phone surveillance, however dubious it may be from so many different perspectives, is probably the only working methodology to move current information at appropriate speeds.
Phone evidence may sometimes be the only evidence available for some crimes. It’s not really possible to create a no-go zone in an environment where criminals are as phone-addicted as everyone else. It should also be noted that some phone evidence can be used as proof of innocence, too, so it’s not entirely a Big Brother situation.
The privacy issues are very real. The right to privacy has to be considered an absolute, with basic entitlements granted to law enforcement for legitimate purposes. 1.3 million requests for information could dig up quite a lot of “collateral” information, not associated with investigations, too. Phone information “dumps” are literally that- Supplying raw information in whatever form it was created, regardless of content or invasion of legitimate privacy rights outside the area of investigation.
This is where phone surveillance and warrants part company, legally. The ability to access raw information of all kinds is something warrants can’t or aren’t supposed to do, and it’s not really the business of law agencies to dig it up in relation to an investigation.
Then there are the technological issues of phone surveillance. Standard carrier technology isn’t designed for law enforcement purposes, and in practice, it can’t be. The carriers, after all, are obliged to respect consumer privacy. So they’re carrying a major obligation in terms of complying with the rights of consumers and the needs of law enforcement.
Carriers do have legitimate defenses in terms of their obligation to provide information to law enforcement agencies. They don’t have much of a choice, most of the time. That said, the consumer’s right to legal redress as a result of issues related to providing information can’t simply be waived. If releasing information to a law enforcement agency results in damage to the consumer’s interests, where does the consumer stand, legally?
“On one leg,” is the short answer. This is string country, and some strings are longer than others.
Mr Elijah Sweatsocks of Shouldahaddalatchkey, MA, is named as a person of interest, an innocent or involved party in media coverage as a result of a police surveillance of phone messages about abused sweat socks. He is shot by vigilantes, anyway. His privacy hasn’t exactly been protected.
His reputation suffers as a result of the investigation based on surveillance, even without his name being mentioned and he loses his job as a sweat sock rehab worker because the employer thinks he’s involved, innocent or not. His privacy rights switch on, after the event, naturally, and he can roam the courts like a ghost forever, looking for a right to sue.
Neither the phone company or the police are even theoretically at fault at the point of surveillance, but afterwards his privacy is history. The guy’s been shot or fired as a result of degrees
of information disclosure related to surveillance. The invasion of privacy may not be direct, but invasion of privacy to the detriment of that person is the effect
of the surveillance. That’s what privacy’s all about, and that’s exactly what can’t be guaranteed using these methods.
Phone surveillance throws a brick at the whole idea of privacy in multiple ways. Electronic information can be tampered with, too, adding a few extra spanners to the delicate gearbox of legal issues. It’s only a matter of time before someone gets set up with phone evidence.
The theory of privacy is that the more people know about your private affairs, the more at risk you are, and that theory’s pretty reliable. The fact is that basic privacy rights and law enforcement shouldn’t be mutually exclusive, to start with. If information is to be obtained that wouldn’t normally form part of a warrant, that becomes even trickier.
The Fourth Amendment:
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.
The warrant issue isn't going to go away, and this is why. Forget “papers”- “searches and seizures” is the working terminology here. They’re reasonable, applicable terms regarding phone surveillance and they’d stand up in court. That information is in effect being "searched and seized". This constitutional provision doesn’t include any right to go information-fishing among the phone carriers, unless they’re considered parties to investigations, another minefield in waiting. The right to obtain information, and under what authority, is the issue. The requirement for an Oath or affirmation is also a legal issue.
Third party sourcing isn’t an option, even theoretically, on this wording. The theory is that the process is oversighted, and the phone surveillance methods being used aren’t even in the ball park parking lot. That could seriously compromise legitimate law enforcement, as well as creating a shooting gallery for defense lawyers. The phone carriers, in fact, could argue that they haven’t been served with a warrant, when they get a request, unless there's some other legal mechanism involved. The Constitution has precedence over all other laws, so it’s a talking point, and a big one.
This is a mess. To conduct phone surveillance in accordance with the Fourth Amendment could generate enough paperwork to fell whole forests. To get around it and maintain the integrity of the Amendment, phone carriers would have to be served with a “generic” Oath or affirmation, citing appropriate bases for requests as a whole. That document would also be a legitimate basis for carriers to refuse requests on legal grounds, which is pretty much what they’re now doing, apparently at some significant expense.
If phone surveillance doesn’t work, law enforcement is in a hole. If privacy rights are violated or Constitutional rights are infringed, law enforcement is in a hole, and so is the public. Good law has to be practical.
My suggestion would be follow the tenets of the Fourth Amendment and make them workable without creating a bureaucratic monster. The Fourth allows proper oversight, anyway, and would reassure all parties of their rights.