Cellphone
Tracking Powers on Request
Secret Warrants Granted Without Probable Cause
By Ellen Nakashima
Washington Post Staff Writer
Friday, November 23, 2007; A01
Federal officials are routinely asking courts to order cellphone
companies to furnish real-time tracking data so they can pinpoint
the whereabouts of drug traffickers, fugitives and other criminal
suspects, according to judges and industry lawyers.
In some cases, judges have granted the requests without requiring
the government to demonstrate that there is probable cause to
believe that a crime is taking place or that the inquiry will yield
evidence of a crime. Privacy advocates fear such a practice may
expose average Americans to a new level of government scrutiny of
their daily lives.
Such requests run counter to the Justice Department's internal
recommendation that federal prosecutors seek warrants based on
probable cause to obtain precise location data in private areas. The
requests and orders are sealed at the government's request, so it is
difficult to know how often the orders are issued or denied.
The issue is taking on greater relevance as wireless carriers are
racing to offer sleek services that allow cellphone users to know
with the touch of a button where their friends or families are. The
companies are hoping to recoup investments they have made to meet a
federal mandate to provide enhanced 911 (E911) location tracking.
Sprint Nextel, for instance, boasts that its "loopt" service even
sends an alert when a friend is near, "putting an end to missed
connections in the mall, at the movies or around town."
With Verizon's Chaperone service, parents can set up a "geofence"
around, say, a few city blocks and receive an automatic text message
if their child, holding the cellphone, travels outside that area.
"Most people don't realize it, but they're carrying a tracking
device in their pocket," said Kevin Bankston of the privacy advocacy
group Electronic Frontier Foundation. "Cellphones can reveal very
precise information about your location, and yet legal protections
are very much up in the air."
In a stinging opinion this month, a federal judge in Texas denied a
request by a Drug Enforcement Administration agent for data that
would identify a drug trafficker's phone location by using the
carrier's E911 tracking capability. E911 tracking systems read
signals sent to satellites from a phone's Global Positioning System
(GPS) chip or triangulated radio signals sent from phones to cell
towers. Magistrate Judge Brian L. Owsley, of the Corpus Christi
division of the Southern District of Texas, said the agent's
affidavit failed to focus on "specifics necessary to establish
probable cause, such as relevant dates, names and places."
Owsley decided to publish his opinion, which explained that the
agent failed to provide "sufficient specific information to support
the assertion" that the phone was being used in "criminal" activity.
Instead, Owsley wrote, the agent simply alleged that the subject
trafficked in narcotics and used the phone to do so. The agent
stated that the DEA had " 'identified' or 'determined' certain
matters," Owsley wrote, but "these identifications, determinations
or revelations are not facts, but simply conclusions by the agency."
Instead of seeking warrants based on probable cause, some federal
prosecutors are applying for orders based on a standard lower than
probable cause derived from two statutes: the Stored Communications
Act and the Pen Register Statute, according to judges and industry
lawyers. The orders are typically issued by magistrate judges in
U.S. district courts, who often handle applications for search
warrants.
In one case last month in a southwestern state, an FBI agent
obtained precise location data with a court order based on the lower
standard, citing "specific and articulable facts" showing reasonable
grounds to believe the data are "relevant to an ongoing criminal
investigation," said Al Gidari, a partner at Perkins Coie in
Seattle, who reviews data requests for carriers.
Another magistrate judge, who has denied about a dozen such requests
in the past six months, said some agents attach affidavits to their
applications that merely assert that the evidence offered is
"consistent with the probable cause standard" of Rule 41 of the
Federal Rules of Criminal Procedure. The judge spoke on condition of
anonymity because of the sensitivity of the issue.
"Law enforcement routinely now requests carriers to continuously
'ping' wireless devices of suspects to locate them when a call is
not being made . . . so law enforcement can triangulate the precise
location of a device and [seek] the location of all associates
communicating with a target," wrote Christopher Guttman-McCabe, vice
president of regulatory affairs for CTIA -- the Wireless
Association, in a July comment to the Federal Communications
Commission. He said the "lack of a consistent legal standard for
tracking a user's location has made it difficult for carriers to
comply" with law enforcement agencies' demands.
Gidari, who also represents CTIA, said he has never seen such a
request that was based on probable cause.
Justice Department spokesman Dean Boyd said field attorneys should
follow the department's policy. "We strongly recommend that
prosecutors in the field obtain a warrant based on probable cause"
to get location data "in a private area not accessible to the
public," he said. "When we become aware of situations where this has
not occurred, we contact the field office and discuss the matter."
The phone data can home in on a target to within about 30 feet,
experts said.
Federal agents used exact real-time data in October 2006 to track a
serial killer in Florida who was linked to at least six murders in
four states, including that of a University of Virginia graduate
student, whose body was found along the Blue Ridge Parkway. The
killer died in a police shooting in Florida as he was attempting to
flee.
"Law enforcement has absolutely no interest in tracking the
locations of law-abiding citizens. None whatsoever," Boyd said.
"What we're doing is going through the courts to lawfully obtain
data that will help us locate criminal targets, sometimes in cases
where lives are literally hanging in the balance, such as a child
abduction or serial murderer on the loose."
In many cases, orders are being issued for cell-tower site data,
which are less precise than the data derived from E911 signals.
While the E911 technology could possibly tell officers what building
a suspect was in, cell-tower site data give an area that could range
from about three to 300 square miles.
Since 2005, federal magistrate judges in at least 17 cases have
denied federal requests for the less-precise cellphone tracking data
absent a demonstration of probable cause that a crime is being
committed. Some went out of their way to issue published opinions in
these otherwise sealed cases.
"Permitting surreptitious conversion of a cellphone into a tracking
device without probable cause raises serious Fourth Amendment
concerns especially when the phone is in a house or other place
where privacy is reasonably expected," said Judge Stephen William
Smith of the Southern District of Texas, whose 2005 opinion on the
matter was among the first published.
But judges in a majority of districts have ruled otherwise on this
issue, Boyd said. Shortly after Smith issued his decision, a
magistrate judge in the same district approved a federal request for
cell-tower data without requiring probable cause. And in December
2005, Magistrate Judge Gabriel W. Gorenstein of the Southern
District of New York, approving a request for cell-site data, wrote
that because the government did not install the "tracking device"
and the user chose to carry the phone and permit transmission of its
information to a carrier, no warrant was needed.
These judges are issuing orders based on the lower standard,
requiring a showing of "specific and articulable facts" showing
reasonable grounds to believe the data will be "relevant and
material" to a criminal investigation.
Boyd said the government believes this standard is sufficient for
cell-site data. "This type of location information, which even in
the best case only narrows a suspect's location to an area of
several city blocks, is routinely generated, used and retained by
wireless carriers in the normal course of business," he said.
The trend's secrecy is troubling, privacy advocates said. No
government body tracks the number of cellphone location orders
sought or obtained. Congressional oversight in this area is lacking,
they said. And precise location data will be easier to get if the
Federal Communication Commission adopts a Justice Department
proposal to make the most detailed GPS data available automatically.
Often, Gidari said, federal agents tell a carrier they need
real-time tracking data in an emergency but fail to follow up with
the required court approval. Justice Department officials said to
the best of their knowledge, agents are obtaining court approval
unless the carriersprovide the data voluntarily.
To guard against abuse, Congress should require comprehensive
reporting to the court and to Congress about how and how often the
emergency authority is used, said John Morris, senior counsel for
the Center for Democracy and Technology.
Staff researcher Richard Drezen contributed to this report.
