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.”
And it’s that casual attitude about impinging upon individual privacy rights which has generated serious concern among some Federal magistrates, including Stephen W. Smith who presides in Houston. Smith told Newsweek that some prosecutors have been “using the cell phone as a surreptitious tracking device. [So] I started asking the U.S. Attorney’s Office, ‘What is the legal authority for this? What is the legal standard for getting this information?’”
The legal standard for cell phone tracking was discussed in the case of In re Order Authorizing and Use of Pen Register. 1/ In that case Federal prosecutors in Maryland submitted an application for a court order in July 2006 which would have allowed the “use of a pen register to capture and report prospective cell site information for the purpose of tracking a fugitive.” 2/ Federal magistrate James K. Bredar found the application contained sufficient probable cause and informally conveyed this information to prosecutors. Magistrate Bredar, however, informed the prosecutors that he would issue warrant under Rule 41 of the Federal Rules of Criminal Procedure only if they provided him with an affidavit supporting the facts stated in their application. 3/
The prosecutors balked, saying they could establish of probable cause under either or both §§ 3121 and 2703(d) by simply providing the court with “specific and articulable facts showing that there are reasonable grounds to believe that … the records or other information sought, are relevant and material to any ongoing criminal investigation.” Magistrate Bredar informed prosecutors he had twice before rejected such request for warrants for “prospective cell site information” absent an affidavit—a rule most courts share and one that is required under Rule 41. 4/
But, for the sake of balance, we must point out that not all judges agree with Magistrate Bredar. U.S. District Court Judge Louis A. Kaplan, sitting in the Southern District of New York, in October 2006 discussed the increasing conflict in the federal judiciary dealing with requests by U.S. attorneys for “2703(d)” orders. In the case of In re United States for Order for Prospective Cell Site Location Info, Judge Kaplan wrote:
“To date, at least three district and eleven magistrate judges have issued opinions addressing applications for orders authorizing the disclosure of prospective cell cite information pursuant to the Pen Register Statute and the Store Communications Act. The majority of the magistrate judges, as well as district judge in the Northern District of Indiana and the Eastern District of Wisconsin, denied the government’s requests, concluding that ‘statutory authority for prospective cell site location is lacking.’ Three of the magistrate judge opinions, however, including a comprehensive analysis by Magistrate Judge Gorenstein in this district, held that the Pen Register Statute and the Stored Communications act, read in conjunction, authorize the disclosure of prospective cell site information. At least one district judge has reached the same conclusion.” 5/
But what is “cell site information” and why do law enforcement officials like Jack Killorin want it so much? Judge Kaplan explained:
“Cellular telephone networks are divided into geographic coverage areas known as ‘cells,’ which range in diameter from many miles in suburban or rural areas to several hundred feet in urban areas. Each contains an antenna tower, one function of which is to receive signals from and transmit signals to cellular telephones.
”Whenever a cellular telephone is in the ‘on’ condition, regardless of whether it is making or receiving a voice or data call, it periodically transmits a unique identification number to register its presence and location in the network. That signal, as well as calls made from the cellular phone, are received by every antenna tower within range of the phone. When the signal is received by more than one tower, the network’s switching capability temporarily ‘assigns’ the phone to the tower that is receiving the strongest signal from it. As a cellular telephone moves about, the antenna tower receiving the strongest signal may change as, for example, often occurs when a cellular phone moves closer to a different antenna tower. At that point, the cellular telephone, including any call in progress, is assigned to the new antenna tower.
”The location of the antenna tower receiving a signal from a given cellular telephone at any given moment inherently fixes the general location of the phone. Indeed, in some instances, depending upon the characteristics of the particular network and its equipment and software, it is possible to determine not only the tower receiving a signal from a particular phone at any given moment, but also in which of the three 120-degree arcs of the 360-degree circle surrounding the tower the particular phone is located. In some cases, however, the available information is even more precise.
”Often, especially in urban and suburban areas, the signal transmitted by a cellular telephone is received by two or more antenna towers simultaneously. Knowledge of the locations of multiple towers receiving signals from a particular telephone at a given moment permits the determination, by simple mathematics, of the location of the telephone with a fair degree of precision through the long established process known as triangulation. Real time information concerning the location permits the geographic movements of the phone to be tracked as they occur.
”Cellular telephone service providers record the identity and location of the antenna towers receiving signals from each phone at every point in time. As noted, some record also which 120-degree face or sector of the tower faces the phone. Some record also the identities and locations of all antenna towers receiving signals from each phone at every moment.
”This information, referred to collectively here as ‘cell site information,’ usually serves rather benign purposes, such as determining whether roaming charges apply and tracking call volume by location. But the information is capable of another use.
”In recent years, law enforcement officials have begun to seek cell site information in applications for the installation and use of pen registers and trap and trace devices (i.e., devices that record the numbers dialed from or calling a particular telephone). According to the government, ‘cell site information is an important investigatory tool which is used . . . to, among other things, help determine where to establish physical surveillance and to help locate kidnapping victims, fugitives, and targets of criminal investigations.’
“Its usefulness for these purposes depends largely upon the number of antenna towers from which the government obtains information at a given time. Where the law enforcement agents obtain information from only one tower at a time, they can determine that a cell phone is in the cell served by that tower and, in some cases, which sector of the tower faces the cell phone; but they can neither pinpoint the precise location of the cell phone nor track its movements. Where, however, the government obtains information from multiple towers simultaneously, it often can triangulate the caller’s precise location and movements by comparing the strength, angle, and timing of the cell phone’s signal measured from each of the sites.
”Many of the initial applications for cell site information sought information that could be used for triangulation. After these applications were rejected by many courts, however, the government began to request information regarding only one tower at a time, apparently in the hope that applications for less detailed and invasive information would meet with a warmer judicial reception. This application is part of the latter group, seeking the identity of only one tower receiving transmissions — presumably the tower receiving the strongest signal—from the subject telephone at a particular time. The government’s arguments for statutory authorization, however, apply equally whether information is obtained from one antenna tower at a time or from many simultaneously. In other words, if the Pen Register Statute and the Stored Communications Act together authorize the disclosure of cell site information from a single antenna tower, there is no reason to believe that they would not authorize disclosure of such information from multiple antenna towers simultaneously.” Id., at 6.
There is little wonder why law enforcement officials like Killorin and Federal prosecutors want to “full throttle ahead” into this area of individual privacy, and while Judge Kaplan went on to criticize Magistrate Bredar’s reasoning in this area, an increasing number of judges, both magistrate and district, have joined the ranks of Magistrate Bredar in trying to check the callous invasion of individual privacy rights by the likes of Killorin. The potential for abuse is disturbing and the fact that some abuses have already occurred is frightening. Newsweek discussed the abuse issue:
“Some abuse has already occurred at the local level, according to telecom lawyer [Al] Gidari. One of his clients, he says, was aghast a few years ago when an agitated Alabama sheriff called the company’s employees. After shouting that his daughter had been kidnapped, the sheriff demanded they ping her cell phone every few minutes to identify her location. In fact, there was no kidnapping; the daughter had been out on the town all night. A potentially more sinister request came from some Michigan cops who, purportedly concerned about a possible ‘riot,’ pressed another telecom for information on all the cell phones that were congregating in an area where a labor union protest was expected. ‘We haven’t even begun to scratch the surface of abuse on this,’ says Gidari.”
Federal judges like Smith and Bredar are truly concerned about these kinds of law enforcement abuses. That’s precisely why Magistrate Smith has consistently balked at issuing “2703(d)” orders for what Newsweek called “real-time information” and why other federal judges have balked at issuing 2703(d) orders for “historical data on cell-phone locations.” Magistrate Smith told Newsweek the § 2703(d) court order requests are often “flimsy” which is why Federal prosecutors request them under the Stored Communications Act because that statute, standing alone, requires only a showing that the information sought is “relevant” to an “ongoing criminal investigation” whereas the Pen Registers Act requires prosecutors to support their request for a warrant with a sworn affidavit substantiating probable cause.
But, as Newsweek pointed out, Magistrate Smith’s refusal to rubber stamp prosecutors’ § 2703(d) requests is only a stop gap measure. Prosecutors have embraced a new strategy to get around the more stringent Pen Registers Act probable cause requirements by “judge shopping” to find other judges who will sign off on their “flimsy” requests. Still, the independent actions of judges like Smith and Bredar have gained traction in the legal community.
“Facing a request for historical cell-phone tracking records in a drug smuggling case,” Newsweek reported, “U.S. Magistrate Lisa Pupo Lenihan in Pittsburgh wrote a 56-page opinion two years ago that turned prosecutors down, noting that the data they were seeking could easily be misused to collect information about sexual liaisons and other matters of an ‘extremely personal’ nature. In an unusual show of solidarity—and to prevent judge shopping—Lenihan’s opinion was signed by every other magistrate in western Pennsylvania.”
Just last month, according to Newsweek, a U.S. Justice Department attorney named Mark Eckenwiler tried to get a three-judge panel of a federal appeals court to overturn Magistrate’s Lenihan’s ruling by telling the panel that prosecutors were only seeking “routine business records.” At least one judge on the panel, Delores Sloviter, was not impressed by the argument. She told Eckenwiler that governments like the one in Iran would love to get their hands on such records to use against protestors. She asked Eckenwiler if our own government could assure its citizens, especially those inclined to protest, that the collection of such privacy data would not be used against them. Newsweek said Eckenwiler tried to deflect Judge Sloviter question but eventually was forced to admit that: “Yes, your honor. It can be used constitutionally for that purpose.”
If that’s not a government embrace of the “big brother’ ideology, then Louisiana Cajuns don’t suck the heads of crawfish. What’s even more alarming is that at least one telecommunications company, Sprint Nextel, has created a Web “portal” which allows law enforcement officials to access the records of its customers from the luxury of their desks. Sprint executive tried to justify the company’s unholy alliance with law enforcement by telling Newsweek that the agents requesting records access must be “authenticated” through a password and must provide the company with a court order in all non-emergency requests.
Just remember: the next time you input that “best friend’s” number into the Blackberry or flip open the cheaper prepaid mobile to “share scandal” about the local school teacher being too friendly with the football players, or to discuss your most private medical issues with your loved ones, you better look over your shoulder because “big brother” may be watching.
1/ 439 F.Supp.2d 456 (DC Md. 2006)
5/ 460 F.Supp.2d 448 (S.D. N.Y. 2006)
6/ Id., at 452-54