Friday, February 17, 2006

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)


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