Monday, July 09, 2012

What limits should exist on police use of personal cell-phone records without a warrant?

Grits was admittedly surprised at how few wiretaps were being approved in Texas state courts, but I'll bet this news explains where Texas agencies are going for detailed information about suspect phone records. The story in the New York Times (July 8) opened:
In the first public accounting of its kind, cellphone carriers reported they responded to a startling 1.3 million demands for subscriber data last year from law enforcement agencies seeking text messages, caller locations and other information in the course of investigations.

The data, which come in response to a congressional inquiry, document an explosion in cellphone surveillance in the past five years, with wireless carriers turning over records thousands of times a day in response to police emergencies, court orders, law enforcement subpoenas and other requests.

"I never expected it to be this massive," said Rep. Edward J. Markey, a Massachusetts Democrat who requested the data from nine carriers, including AT&T, Sprint, T-Mobile and Verizon, in response to an article in April in The New York Times on law enforcement's expanded use of cell tracking. Markey, who is the co-chairman of the Bipartisan Congressional Privacy Caucus, made the carriers' responses available to The Times.

Though the cell companies did not break down the types of law enforcement agencies collecting the data, they made clear that the widened cell surveillance cut across various levels of government — from run-of-the-mill street crimes handled by local police departments to financial crimes and intelligence investigations at the state and federal levels.

AT&T now responds to 230 emergency requests a day nationwide — triple the number it fielded in 2007, the company told Markey. Law enforcement requests of all kinds have been rising quickly among the other carriers as well, with annual increases of between 12 percent and 16 percent in the past five years. Sprint led the way last year, reporting more than 500,000 law enforcement requests for data.

Under federal law, the carriers said they generally required a search warrant, a court order or a formal subpoena to release information about a subscriber. But in cases that law enforcement officials deem an emergency, a less formal request is often enough. Moreover, rapid technological changes in cellphones have blurred the lines on what is legally required to get data — particularly the use of GPS systems to identify the location of cellphones.
The Wall Street Journal mentioned the particular concern regarding "cell tower dumps," which are "requests that carriers provide all the phone numbers of cell users that connect with a tower during a specific period of time. Those phone numbers could include suspects as well as ordinary people making calls in the same area."

At a minimum, Grits thinks cell phone users should be notified when law enforcement access their personal data without probable cause. And given their ubiquity and the amount of personal information on them, searches of seized smart phones should require a warrant. I've not thoroughly thought through, though, every nuance of what that would entail or what other protections may be necessary. Lately it seems like privacy advocates have been playing defense more often than not, fighting intrusive legislation instead of proposing new protections. There's been less discussion, that I hear, anyway, about what new protections are needed.

Written in the 18th century prior to the existence of municipal police forces, much less modern technology, the Fourth Amendment to the US Constitution offers flimsy protection at best from governmental (much less corporate) intrusions into personal privacy, which can be breached by technology much more rapidly, it seems, than the law can react to protect it.

The federal courts have all but abandoned the Fourth Amendment as a legal doctrine that meaningfully constrains government, which means in the near term we must rely - God help us - on the legislative branches, national and state, to limit abuses which would have seemed in the realm of science fiction back when today's Supreme Court justices were in law school. Unfortunately, legislative trends lately have run the other direction. (As the Journal reminded us, "In August 2007, Congress revised national-security surveillance statutes to allow the government to wiretap electronic communications without a warrant as long as one party is overseas.")

That puts the ball in state government's court, and leaves this writer wondering what legislation  might (or should ) be filed at the Texas Legislature to restrict or at least document the nature and scope of law enforcement monitoring of personal phone records.

28 comments:

Anonymous said...

With very few exceptions (i.e., attorney client privilege, medical records-HIPAA) you have no expectation of privacy in records maintained by a third party. If you don't want AT&T or Verizon having a record of your communication, your recourse is to not use a cell phone. It's pretty much the same rule for bank records. Obviously, it becomes a far bigger deal when the government starts actually eavesdropping on the substance of private conversations.

Gritsforbreakfast said...

That's certainly the way the law is now, 9:19. I've posed the normative question, should it be that way, and what restrictions might be warranted in light of the virtual privacy vacuum you describe (which I agree is consistent with prevailing 4th Amendment doctrines)?

Arce said...

The Supreme Court has carved so many exemptions and exceptions to the Fourth Amendment that some have called it like Swiss Cheese, more holes than cheese. And a wheel of it would keep a family of mice alive for a week, either.

The Supreme Court has effectively repealed the Fourth Amendment, which only required having some amount of cause and getting a warrant, a rather small barrier, given that so many judges used to be prosecuting attorneys.

Arce said...

would NOT keep a family of mice alive

Vincent van Gogh said...

What an easy no brainer question. The founding fathers would be rolling over in their graves if they knew. We are supposed to enjoy privacy in our person effects and papers. What do you think they would of said about cell phone records? There are dangerous people out there doing the thinking. I think Nancy Pelosi covers the mind set pretty well when she said we have a clear duty to rewrite and revise the Constitution.

Vincent van Gogh said...

They keep talking about drafting a Constitution for Iraq. Why don't we give them ours? It was written by a lot of really smart guys, it has worked for 200 years, and we're not using it anymore.

I came across this and though it applied.

Doug said...

I've been involved in the use of cell phone records and info during rapidly developing investigations such as kidnappings and child abductions. Would Grits make an exception to his warrant requirement for those kind of cases? Or, should I have to get a warrant before the phone companies can tell me the location of the victim who is about to be raped and murdered? If your granddaughter had just been abducted and the police were able to save her only through quick, warrant less access to cell phone info, should they be allowed to do so? Or should we wait for the warrant while the killer takes his time with her? Please don't say that doesn't happen or that I'm bring needlessly provocative. I've seen women and children saved through the use of this technology. If we were forced to get a warrant, those people would be dead now. So do I get an exception from you on this, Grits?

John K said...

Vincent, Nanci Pelosi isn't the problem. It's the prowess of right-wing (tough on crime) demagogues that has nearly everyone (including Pelosi from time to time) clicking their heels in deference to cops/prosecutors over the sometimes conflicting interests of citizens in a democracy.

The tough-on-crime folks, and by extension those who bend backward to avoid their wrath, seem to make few distinctions between actual criminals and whomever the cops happen to be rousting at any given moment.

DEWEY said...

They are going to have fun tracking me, I don't have a cell phone. But I'm not doing anything to give the a reason to track me.

Gritsforbreakfast said...

Doug, you may not have noticed, but I don't make the rules governing police searches and the ones created by the courts are full of exceptions for all sorts of emergencies, real and imagined, so I wouldn't worry about that. On wiretaps, eg., they can start without a warrant in emergencies and get approval after the fact, and any warrant requirement on personal cell phone records would surely be subject to the same exceptions.

DLW said...

Doug, how about this? How about if you go ahead and get the cell phone records without a warrant to save the victims but if there is no warrant you are unable to use the information gathered from the warrantless intrusion in the prosecution of the citizen accused?

dahowa said...

Doug, those exceptions always exist. You generally need a warrant to enter someone's home, but if you have evidence that someone is being harmed, you can charge right in. Any citizen can do this, so of course the police can do it too.

Phillip Baker said...

I suspect Doug is a well-intentioned LEO who sees the daily ugliness of the underbelly of society we have created with our draconian laws and sentences. But all my adult life I have heard this same rationale-"What if this involved your (insert beloved person here) who is about to be (insert heinous mistreatment here). I'd have no problem with cops using any (reasonable) method at their disposal to stop someone from being harmed. The trouble is that we cannot trust them to limit themselves. Whether local cops or the NSA, at every level snooping into the private lives of people has become so routine that we all, like the sheep we are, just absorb and move on. Cops seize helmet cameras from a biker without cause and use it to look for crimes. And cell phone videos. Cops seize personal phones and browse through them just to see what they can find. TSA seizes laptops in airports on a supposedly random basis, copy the hard drive, and eventually return it to its owner - all in the name of "safety". This has been going on for a long time, but 9/11 just gave every level of government license to intrude into any area, search/seize almost anything. We were fed such a diet of fear by W, Cheney et al that we have simply surrendered our freedoms.

And this is why the Founders expected the constitution it to be amended or replaced from time to time. I suggest everyone read one of the several, excellent books about the making of our constitution. It is hardly the perfect document I was trained in school to believe it was.

Vincent van Gogh said...

John K, you used Nancy Pelosi"s name and the word democracy in the same paragraph - now thanks funny! Almost an oxymoron. No she is not a problem. She makes so many ludicrous off the wall statements no one with a brain takes her seriously. I do agree that all to often the police and prosecutors are over the top. Winning should not supercede justice.

Hook Em Horns said...

Using Doug's argument, there should be NO 4th amendment when it comes to the "safety" of the public.

Anonymous said...

the daily ugliness of the underbelly of society we have created with our draconian laws and sentences??????????????

That scum has always been here and always will. Are you that ignorant of history? Weren't "created" by anyone.

Anonymous said...

Back to the question Grits asked, I have no concerns about it.

john said...

NOTHING without a warrant,ever you may recall 4th Amendment and other Bill of Rights, COME ON.
Cops and their masters--the public servants who took oaths--desperately need to be held accountable and get back or protecting and serving.

captcha backtacha cha

rodsmith said...

the big problem is we have lost the balance in it.

I have no problem if an emergency comes up and you need to short-cut the warrant requirment. BUT if after the fact it is discovered you LIED and there was in fact no real emergency....then i expect YOU to spend YEARS in PRISON. That is the part we have lost. Once law enforcment like govt was ACCOUNTABLE to the public! Now it just seems like we are the ENEMY to be lied to and cheated anyway they can!

Doug said...

rodsmith, sounds like you need to brush up on U.S. History and basic Government courses. Law enforcement is part of the government. They are not separate entities. Moreover, American cops are under more constraints and limitations NOW than at any time in the history of this country. This who pine got the " good old days" of law enforcement clearly don't know what they are talking about. If you think cops are out of control today then you definitely do not want to return to 1950's style policing.

rodsmith said...

well doug knowing the number of innocnet americans who have been SHOT in their own homes i don't think those limitations are WORKING do you?

and don't even get me started on this new passtime of shooting the animals as soon as you hit the yard! Any cop dumb enough to shot one of my animals that didn't have teeth to flesh would join it on the ground! Plus i know it's all one set but once apon a time you could actualy PUNISH crooked cops to a certain extent...now they kill people and it's ahhh well!

then there was the fact that if a cop got too far out of line he was still known to everyone and his neighbors could deal with him.

Anonymous said...

Those damned cell records make it so tough to get away with a crime. Like when you go to court and say you don't even know the defendant, but the government has subpoenaed the records showing you call him 5 times a day. Or you get your lawyer to argue in opening that you had an alibi, but then the cops show you had your phone right at the crime scene. I tell ya, it's a crying shame!

rodsmith said...

well 8:25 in cases like those not only should you hammer the individual on the current charges but bring NEW ones concerning fraud and perjury! Plus if you can prove the lawyer KNEW...hammer them as well.

I don't give either side a free pass.

The law is the law! you violate it no matter WHAT side your on...you go down!

Anonymous said...

Rodsmith, how many innocent Americans have been shot in their own homes by police? How many pets shot in the front yard? Cite the source of your data, please. It appears you believe police in the good old days were kept in line through fear of vigilante justice?! Isn't that illegal too? Shouldn't vigilantes "go down" in your world too? It's hard to discuss LE and CJ policy with someone who literally knows nothing about the most basic foundations of the fields. Why are you even posting?

rodsmith said...

oh officer 7:08 i'm gonna have to in your own words!

TAKE YOU DOWN!

i would tell you to take your head ot of your ass. But your obviously a law enforcment shill!

so i'll just start here!

http://www.policemisconduct.net/

http://www.washingtonpost.com/national/officer-charged-in-calif-killing-of-mentally-ill-homeless-man-leaves-police-department/2012/07/10/gJQAHaE0bW_story.html


http://www.wwnytv.com/news/local/Watertown-Woman-Sues-Police-Department-For-1-Million-162248635.html

http://www.denverpost.com/ci_21022163/911-tape-broomfield-shooting-shows-family-warned-police

http://www.foxsanantonio.com/newsroom/top_stories/videos/vid_11031.shtml

that is just a few of them.

Sorry but thanks to a few bad apples and their fellow officers who not only do not act but HIDE their activies law enforcment has bcome the biggest CRIMINAL GANG in the contry

Anonymous said...

Rodsmith, I didn't ask you to post links to individual stories about police misconduct. I asked you to elaborate on your implication that there is an epidemic of police shooting innocent people in their own homes. You said you had considered the number. You also said police have a "new passtime" of shooting animals when they approach people's homes. Please be specific, Rodsmith: Exactly how many innocent people were shot in their own homes by police officers in 2010 or 2011? Exactly how many family pets did police shoot during that same time period? I won't clutter this blog up any further. Just post the numbers, please.

austin-car-accident-lawyer.com said...

One would surely be better off without a cellphone if it's like this.

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