CRIMINAL JURISDICTION

Law Enforcement Seeks Cell Phone Surveillance in Continued War on Crime; But Who’s Watching Them?  …Federal Judges

In an article titled “The Snitch In Your Pocket,” Newsweek Magazine (March 1, 2010) reported that in recent years Federal prosecutors have been “seeking what seemed to be unusually sensitive records, internal data from telecommunications companies that showed the locations of their customers’ cell phones—sometimes in real time, sometimes after the fact.” The prosecutors justified their pursuit of this individualized personal information “to trace the movements of suspected drug traffickers, human smugglers, even corrupt public officials” through their cell phones.

These Federal prosecutors have been using the Stored Communications Act, 18 U.S.C. § 2703(d), to get Federal magistrates to issue what’s called “2703(d)” orders which allows prosecutors intrusive access into the private lives of this nation’s citizens. Federal prosecutors prefer using the Stored Communications Act over the more stringent Pen Registers Act, 18 U.S.C. § 3121, which requires them to support their court order requests with an affidavit articulating the probable cause necessary for law enforcement officials to install any sort of tracking device on cell phones.

But Newsweek reported that “the FBI and other law enforcement outfits have been obtaining more and more records of cell-phone locations—without notifying the targets or getting judicial warrants establishing ‘probable cause,’ according to law enforcement officials, court records and telecommunication executives.”

While these Orwellian law enforcement types have historically gone after private information such as e-mails, bank records, and credit card transactions, they have more recently made “cell-phone tracking” their sport of choice in the individual privacy snooping game. Cell-phone tracking allows these “covert operations” specialists to track the movements of not only those they suspect of criminal wrongdoing but also of those who may simply pose a non-criminal point of interest to them. Jack Killorin, who heads a Federal task force in Atlanta, told Newsweek that “cell-phone records have helped his agents crack many cases, such as the brutal slaying of a DeKalb County sheriff; agents got the cell-phone records of key suspects—and then showed that they were all within a one-mile area of the murder at the time it occurred, he said. In the fall of 2008, Killorin says, his agents were able to follow a Mexican drug cartel truck carrying 2,200 kilograms of cocaine by watching the real time as the driver’s cell phone ‘shook hands’ with each cell-phone tower it passed on the highway. ‘It’s a tremendous investigative tool,’ says Killorin. And not that unusual: ‘This is pretty workday stuff for us.”

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