Police quietly expanding warrantless cell phone tracking

The New York Times this weekend had a feature on the dramatic growth in cell-phone tracking by law enforcement based on thousands of pages of documents obtained by the ACLU from local police departments, reporting that:

While cell tracking by local police departments has received some limited public attention in the last few years, the A.C.L.U. documents show that the practice is in much wider use — with far looser safeguards — than officials have previously acknowledged.

The issue has taken on new legal urgency in light of a Supreme Court ruling in January finding that a Global Positioning System tracking device placed on a drug suspect’s car violated his Fourth Amendment rights against unreasonable searches. While the ruling did not directly involve cellphones — many of which also include GPS locators — it raised questions about the standards for cellphone tracking, lawyers say.

The police records show many departments struggling to understand and abide by the legal complexities of cellphone tracking, even as they work to exploit the technology.

In cities in Nevada, North Carolina and other states, police departments have gotten wireless carriers to track cellphone signals back to cell towers as part of nonemergency investigations to identify all the callers using a particular tower, records show. 

In California, state prosecutors advised local police departments on ways to get carriers to “clone” a phone and download text messages while it is turned off.

At the end of the story, there's a brief discussion about pending reform efforts:

Congress and about a dozen states are considering legislative proposals to tighten restrictions on the use of cell tracking.

While cell tracing allows the police to get records and locations of users, the A.C.L.U. documents give no indication that departments have conducted actual wiretapping operations — listening to phone calls — without court warrants required under federal law.

Much of the debate over phone surveillance in recent years has focused on the federal government and counterterrorism operations, particularly a once-secret program authorized by President George W. Bush after the Sept. 11 attacks. It allowed the National Security Agency to eavesdrop on phone calls of terrorism suspects and monitor huge amounts of phone and e-mail traffic without court-approved intelligence warrants.

Clashes over the program’s legality led Congress to broaden the government’s eavesdropping powers in 2008. As part of the law, the Bush administration insisted that phone companies helping in the program be given immunity against lawsuits.

Since then, the wide use of cell surveillance has seeped down to even small, rural police departments in investigations unrelated to national security. 

“It’s become run of the mill,” said Catherine Crump, an A.C.L.U. lawyer who coordinated the group’s gathering of police records. “And the advances in technology are rapidly outpacing the state of the law.”

This is an issue I'd like to see the Texas Legislature address in 2013, preferably creating a warrant requirement for obtaining personal information including location from people's cell phones. This practice will be abused without rigorous court oversight and strong laws protective of personal privacy.

As an aside, the Times continues to misstate the effect of a recent SCOTUS ruling on police placing GPS trackers on cars, insisting the court found "that a Global Positioning System tracking device placed on a drug suspect’s car violated his Fourth Amendment rights against unreasonable searches." In fact, SCOTUS ruled only that placing a GPS tracker on your car is a search, and did NOT go so far as to say it was an unreasonable one. The ruling was exceptionally narrow in that regard, and for some reason most of the media have overstated what the court actually said.

MORE: See ACLU's writeup of documents they received under open records.