FBI wants to track your movements with your phone- another warrantless spy program exposed

Now we all already know that "we're the Government-you can trust us " is  already one of  the Three Great Lies (the other two being "the Check is in your Mouth " and "I promise not to cum  in the mail"-{ or something like that}).

But it's worth noting that the FBI has recently been making routine use of another scary  intelligence gathering capability they Double-secret promised to NEVER use without a warrant;   the ability to Track you through your cellphone:

But the FBI and the U.S. Department of Justice have seized on the ability to locate a cellular customer and are using it to track Americans' whereabouts surreptitiously--even when there's no evidence of wrongdoing. { And therefore no warrant either-ed}

A pair of court decisions in the last few weeks shows that judges are split on whether this is legal. One federal magistrate judge in Wisconsin on Jan. 17 ruled it was unlawful, but another nine days later in Louisiana decided that it was perfectly OK.

Which is a bit of a reversal from the  solemn promise then FBI Director Louis Freeh made to Congress in 1992:

Several privacy-based spokespersons have criticized the wording

Of the definition regarding this long-standing requirement, alleging

That the government is seeking a new, pervasive, automated "tracking"

Capability. Such allegations are completely wrong. ...

information obtained from "true" tracking devices, which can

Require a warrant or court order when used to track within a private

Location not open to public view. .. Even when such generalized location information, or Any other type of "transactional" information, is obtained from communications service providers, court orders or subpoenas are required and are obtained....

we are prepared to add a concluding phrase to this definition to explicitly clarify the point: except that such

Information (call setup information) shall not include any information that may disclose the physical location of a mobile facility or service beyond that associated with the number's area code or exchange."

Now you may be unaware of this, but if your cell phone was made after about 2000, it broadcasts a signal that uniquely identifies you and identifies your location to within a few feet; or even inches. The FCC has required every phone sold  since 2002 be able to do this.  

 Now to be fair, the primary reason for this requirement was altruistic.  The FCC wanted police and firefighters to be able locate cellular 911 callers who were unable to give their location, just as they can with landlines.  As a result, The FCC made it mandatory for all cell phones to have either GPS or E911 technology that allows them to be precisely located and tracked.  (Oh and by the way you cannot turn this feature off and it may work even when your phone is off )

Well, back in the simplier more civil liberty-friendly 90's, even the ability to "triangulate" a cell phone's location to within a block or two by comparing signal bounce rates off local cell towers so alarmed privacy advocates that, there was ferocious opposition to letting law enforcement access this information.  In fact; the `94 law probably wouldn't have passed without Director Freeh's emphatic promises about judicial safeguards and compromises as the wording.

Well,  as they say around Washington, "that statement is no Longer operable" or in the vernacular of the Playground:  "psyche!"

Our new Privacy hatin' FBI has thought nothing of making routine use of these signals, with nothing more than a subpoena

( According to the   EFF's Amicus Brief in one such case:

Last month, the court denied a Justice Department request to monitor a cell phone's location. The ruling revealed that the DOJ has routinely been securing court orders for real-time cell phone tracking without probable cause and without any law authorizing the surveillance.

I suppose we should be grateful that they are even seeking subpoenas anymore.   The Question is, for how long?  Until now, the case law has been crystal clear on this In U.S. v. Karo 468 US 705 (1984-appropriately enough)  The court emphatically ruled that:

The monitoring of a beeper in a private residence, a location not opened to visual surveillance, violates the Fourth Amendment rights of those who have a justifiable interest in the privacy of the residence. ....The result is the same where, without a warrant, the Government surreptitiously uses a beeper to obtain information that it could not have obtained from outside the curtilage of the house.

Unfortunately this administration has a strange case of amnesia when it comes to legal precedents they don't like

Despite this case, the Government has asserted in recent cases that warrants are never required since we voluntarily tell the government where we are when we use these phones. as recently Argued in this case:

A cell phone user voluntarily transmits a signal to the cell phone company and thereby assumes the risk that the cell phone provider will reveal to law enforcement the cell site information."

This is an EXTREMELY scary position to stake out because he is in effect trying to undermine the fact that a cell phone user has "a reasonable expectation of privacy" about their location. The government is essentially trying to claim the unlimited right to track ANY person for ANY Reason at all, ANY Where.   If you don't have a reasonable expectation of privacy, then thee is no limit to the search the government can conduct at its whim.

So far, fortunately only one Court, in Louisiana, has agreed with them on this issue and two-one in New York and the Other in Wisconsin have shot the government down.  That means it's still early in this fight, and since the battle is being fought openly in the courts rather than in secret we have a better chance of fighting back.

But fight back we need to.   Everyday I feel like we're sliding further from a citizens of free country with civil liberties, and closer to  becoming residents of Bentham's Panopticon.   Worse yet, as the last five years have made clear,  those who should be the inmates are currently running the  asylum

(kudos to Declan McCullagh for staying on top of this story)

99.80% Error rate! NSA Leaks destroy legal defenses of wiretaps!

It seems that enough is enough even for the super-spooks.  Someone at NSA has Come forward and given the Washington Post unprecedented detail  about the operation of the warrantless wiretap program.

Intelligence officers who eavesdropped on thousands of Americans in overseas calls ...have dismissed nearly all of them as potential suspects , according to accounts from current and former government officials ...

The Bush administration refuses to say -- in public or in closed session of Congress -- how many Americans in the past four years have had their conversations recorded or their e-mails read...Two knowledgeable sources placed that number [at]...about 5,000 [of those] Fewer than 10 a year...have aroused enough suspicion... to justify interception of their domestic calls, as well.{which without a doubt requires court order}

This is BIG, because it effectively destroys the already dubious legal arguments put forward to defend the program:


Up until now the Government's argument has gone something like this "well Yes we don't have a warrant, but the Fourth amendment only requires probable cause , not a warrant and trust us, we've always probable cause before wiretapping, so the Fourth Amendment is safe and sound.  Sleep tight...and uhh...don't mumble so much when you talk on the phone."

BZZZZT! As Alex Trbek would say, " No Sourrey, that's not a correct answer"

Yah see, finding that pabable cause exists is a TWO pronged test, and as of today's revelations, the NSA wiretaps Utterly fail the second part:

National security lawyers, in and out of government, said the washout rate raised fresh doubts about the program's lawfulness under the Fourth Amendment, because a search cannot be judged "reasonable" if it is based on evidence that experience shows to be unreliable.

Bingo! give that reporter a Giant Cigar!   That's right Kids,  no matter how much probable cause, reasonable suspicion, or even reasonable probability (I think I just made that one up), the government can show, it don't mean a thing unless they can also satisfy a judge that the source of the information is reliable.

Or if you prefer your legalese straight up without a chaser:

The second part of the  two part test was most famously described in the landmark case of   Aguilar vs. US 378 US 108(1964) :

[for Probable cause to issue a warrant to exist]  the magistrate must [Also]  be informed of some of the underlying circumstances relied on by the person providing the information and some of the underlying circumstances from which the affiant concluded that the informant,....is creditable or his information reliable

In plain English this is an easy distinction to understand.   Consider this example:

A random person walks up to a police officer and alleges drugs are being sold at  a nearby house.   The officer seeks a warrant based on the statement to raid the house? Is it there enough probable  cause to issue a warrant?

 Now suppose that person is not random but the police officer's regular snitch, who has provided hundreds of reliable tips in the past and is willing to state on the record he saw the drugs with his own two eyes.

The difference is  obvious. Both requests for warrants are based on the same evidence; a statement by an eyewitness to illegal activity.  However, with one you have no way of measuring the credibility of the witness, but in the second you do.  This is exactly why the Court requires both prongs to be satisfied before probable cause exists.

And right now  that second prong is a BIG problem for the government:

The minimum legal definition of probable cause, said a government official who has studied the program closely, is that evidence used to support eavesdropping ought to turn out to be "right for one out of every two guys at least."

Compare that to the hit rate of 1 in every 500 or so. As it works now, there is simply no way to argue this program is legal under existing law., and its pretty clear Bush's boys knew that from the get go.

Those who devised the surveillance plan, the official said, "knew they could never meet that standard -- that's why they didn't go through" the court that supervises the Foreign Intelligence Surveillance Act, or FISA.

and even if we were to spot them some lower standard of evidence (which they argued for despite without any constitutional justification), they STILL fall woefully short:

Michael J. Woods, who was chief of the FBI's national security law unit until 2002, said in an e-mail interview that even using the lesser standard of a "reasonable basis" requires evidence "that would lead a prudent, appropriately experienced person" to believe the American is a terrorist agent. If a factor returned "a large number of false positives, I would have to conclude that the factor is not a sufficiently reliable indicator and thus would carry less (or no) weight."

This may explain why the government has so rarely actually tried to get actual warrants based on these wiretaps:

Hayden said the government goes to the intelligence court when an eavesdropping subject becomes important enough to "drill down," as he put it, "to the degree that we need all communications."

Yet a special channel set up for just that purpose four years ago has gone largely unused,. Since early 2002, when the presiding judge of the federal intelligence court first learned of Bush's program, he agreed to a system in which prosecutors may apply for a domestic warrant after warrantless eavesdropping on the same person's overseas communications.  The annual number of such applications, a source said, has been in the single digits.

That high Washout rate may have something to do with the fact that event he agents working the project acknowledge it's basically BS:

Other officials,  said  the prevalence of false leads is especially pronounced when U.S. citizens or residents are surveilled.   No intelligence agency, ... believes that "terrorist . . . operatives inside our country," as Bush described the surveillance targets, number anywhere near the thousands who have been subject to eavesdropping.

Let that one sink in for a sec.   They are tapping THOUSANDS of Phones and E-mail, even though they know only the smallest fraction of them are even potentially valid targets.   In fact, supporters of the program, rather than try to deny this fact instead have tired to set an incredibly low threshold for deeming it a success:

 Contributors to the technology said it is a triumph for artificial intelligence if a fraction of 1 percent of the computer-flagged conversations guide human analysts to meaningful leads.  

By which they don't even mean finding actual bad guys trying to attack us but rather

 Even unwitting Americans, they said, can take part in communications -- arranging a car rental, for example, without knowing its purpose -- that supply "indications and warnings" of an attack.

That's right, checking to make sure the  Ford Escort you rented to visit Aunt Millie isn't an integral part of some obscure terrorist plot is precisely the sort of thing we should be devoting our limited manpower and resources to no?

The legal justifications for this program were  always  at best, a tiny fig leaf to try to lend the slightest appearance of decency to a naked power grab.  As of today's revelations of the real scope of the wiretaps and the incredibly minuscule number of hits,  it isn't even that anymore.  It's time we started saying it emphatically.  This program IS  and always has been illegal.  Period.

Update [2006-2-7 7:47:28 by Magorn]: I should Clarify one item in this diary. The 5,000 number only represents those actively eavesdropped on for an extended period of time. The raw number of intercepted communications/ scanned e-mail however, numbers in the 100,000's if not millions. see this diary for more detail

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