Thursday, February 28, 2013

Half of law enforcement requests for personal cell-phone data involve only a supboena

KUT-News today has a story on bills related to location tracking by law enforcement, including companion bills HB 1608/SB 768 by Rep. Bryan Hughes and Sen. Juan "Chuy" Hinojosa, respectively. That legislation would require a warrant for law enforcement to access location data from cell phones and other mobile electronic devices except in emergencies and in cases involving devices reported stolen. Presently location data may be obtained with only a subpoena, in which case no judge will even know about the request unless it's later admitted into evidence. (Current law treats such information as third-party business records over which, it is presumed, cell-phone customers have no reasonable expectation of privacy.)

The piece also highlights a pair of bills headed in the other direction by state Rep. Allen Fletcher who "introduced a bill, H.B. 1322, that would keep ... warrants [for mobile tracking devices] sealed. And another, H.B. 919, that would prevent freedom of information requests from revealing the movements of uniformed and undercover officers." Wrote KUT's Mark Dewey:
That has the Texas Association of Broadcasters--of which KUT is a member--worried. The TAB’s Michael Schneider says the so-called “law enforcement exception” that allows governments to deny freedom of information requests is used too much already. 

"The public needs to be able to determine for themselves whether or not law enforcement is following proper procedures, whether the investigation actions are justified, and if you remove information from that process, the public is kept in the dark, " Schneider said.

Matt Simpson is with the American Civil Liberties Union of Texas. He monitors bills in the Texas legislature and makes sure the ACLU's point-of-view is heard. He’s more concerned about another tracking device that tracks almost everyone – almost constantly: Your cell phone.

"Our cell phones put a signal out to towers as we move around and this creates a digital log of where you’ve been," Simpson said.

He says police don’t need a warrant to get your location records from your cell phone company. They just  file a sealed subpoena and get whatever location records they want. There’s no judge involved.
A rep from the Austin Police Department complained about "burdensome reporting requirements" in Hughes and Hinojosa's bill, which are modeled after reporting requirements involving wire taps and pen registers already required in the law. But without such reporting, it would be impossible for the public to know the scope of police surveillance activities.

This evening Grits spent a little time examining responses by cell phone companies to a Congressional inquiry last summer and found that the majority of requests by law enforcement for their customers' data involved only a subpoena, not a warrant or other court order. Not every company broke out their data completely, but AT&T reported that 50.3% of law enforcement requests in 2011 involved subpoenas only, Verizon said the figure for that year was "about half," as did T-Mobile. US Cellular reported 53.3% of law enforcement requests that year were based on subpoenas.

AT&T's letter in particular provided some interesting data. Requests involving warrants increased 35% from 2007 to 2011, while requests involving subpoenas grew 108% over the same period. "Exigent" or emergency requests - which require no warrant - grew at an even greater clip . The larger category of exigent requests involved 911 calls. AT&T responded to 65,500 such requests in 2011, which was 182% more than in 2007. But an even greater growth rate was seen in "exigent" requests that did not involve 911 calls. That category grew by a whopping 667% from 2007 to 2011, from 1,800 to 13,800, representing the highest growth rate among request types broken out by the company. One wonders, given that rapid growth rate, if claims of exigency are being exaggerated and/or overused.

AT&T also included its 2010 price list detailing how much it charges law enforcement for customer data. Their "mobile locate" service costs a $100 setup fee and $25 per day per number, with an additional $100 fee if the agency wants email updates on location more frequently than once per day. It costs $75 per hour for "detailed cell site coverage maps." "Data orders," "content orders," and "packet data" each involve a $325 setup fee and a $5 per day fee for data orders, $10 per day for the other two. They charge $50 just to tell police if a customer changed their billing address. Sprint's charges to law enforcement were quite a bit lower. The other vendors did not provide such a detailed breakout.

According to the responses by cell phone companies to Congress, law enforcement made more than 1.3 million requests in 2011 for cell-phone customer information, most often involving no judicial oversight at all. Police just issued a subpoena, paid a fee, and the companies conveniently emailed them their customers' data.

The rapid expansion of law enforcement requests for cell-phone location data and other customer information to me justifies increased reporting and judicial oversight. We'll find out as the session goes forward if the Texas Legislature agrees.


Anonymous said...

I believe that it is very necessary for the police and law enforcement to have access to ALL EMAIL, and telephone records, because, there are pediophiles here on this earth, and that is the ONLY way that the law enforcement can catch these low life snakes, they are so very sneaky, and they Love to hurt little children. If Law Enforcement has to delve into peoples personal data it is okay, because, these scum bags are usually very smart, and very hard to catch, they are sneaky, manipulative, and cunning low lifes that live on this earth with one intention, and that is to hurt little children!

Gritsforbreakfast said...

What you're describing, 6:48, is a totalitarian state. There's no good reason they can't do all that with a warrant.

DEWEY said...

To 06:48
"there are pediophiles here on this earth, and that is the ONLY way that the law enforcement can catch these low life snakes, they are so very sneaky,..."
You haven't heard about the "stings" where the police pose as children to catch pedophiles?

Anonymous said...

Keep up your good work Grits; I follow you for best Leg info.

Phillip Baker said...

It is clear that the steady diet of fear fed to Americans since 9/11 has led us to abandon wholesale hard won freedoms. And all in the name of illusory "safety". It is axiomatic that power given to police and other agents of government on ALL levels will be abused. It's funny how the same sector that constantly decries the misuse of diagnoses to get medical marijuana, sit silent on their hands when it is police and other LEO's who brazenly abuse their authority. 6:48 is a great example of how far this society has retreated from long-established rights and personal freedom in favor of a growing police state.

Juror #1 said...

I was the member of a jury this week in a case involving a burglary and sexual assault in which the victim's cell phone was stolen and subsequently used by the suspect following the crime. The APD detectives obtained the victim's cell phone records (including GPS data) using the exigency exception outlined in this post and were able to subsequently arrest the suspect and recover valuable evidence, based in part, from the information gleaned from the cell phone records. We found the Defendant guilty and sentenced him to a healthy prison sentence.

Some lessons learned and thoughts about this post:

1. Cell phone data can be extremely useful in solving violent, felony crimes
2. The exigency standard for data release seems valuable and justified when used appropriately
3. No innocent citizen had their privacy rights violated
4. Requiring a warrant in the above case would have been a cumbersome and impractical requirement given the circumstances (the burglary and following investigation occurred on a Saturday, and one would think that judges are not widely available on the weekend...not to mention the valuable investigative time that would have been lost while detectives typed up a warrant instead in lieu of actively hunting down the suspect)

Bottom line: It is impossible to make an intelligent, informed opinion about the implications of the increased cell phone data release pursuant to a subpoena or an exigent request without reviewing each case to determine if the circumstances justified the release of records and served a legitimate public safety function. The numbers and statistics employed by Grits mean nothing to me without the facts of each case. The rise in cell phone data requests does not necessarily imply an abuse of authority or a violation of privacy. It could simply mean that more crimes involving cell phones in some capacity (likely most crimes, given the pervasiveness of cell phone in our society) are occurring and police are utilizing evolving investigative tools to solve these crimes. Or not. Unfortunately, statistics are too often used to support facile arguments and inferences.

Finally, Phillip Baker's assertion that,"it is axiomatic that power given to police and other agents of government on ALL levels will be abused" is as cynical and misguided as the ridiculous views espoused by the anonymous poster @ 6:48.

Gritsforbreakfast said...

"the victim's cell phone was stolen and subsequently used by the suspect following the crime"

Juror #1, fwiw, stolen cell phones are one of the exceptions to a warrant requirement in the bill, which also leaves intact an emergency exception which was taken from existing law on mobile tracking devices.

Also, now that Austin and most other large jurisdictions do "no refusal" blood draws for DWI, judges are much more commonly available to sign warrants on weekends and during off hours than even just a few years ago.

rodsmith said...

your wrong there 1:59

the old saying

"Absolute power corrupts Absolutly"

is not an old saying because it's iffy!

as for 6:48

I thing people who think like him/her

need to be given a choice. Pick a country of your choice and we will pay for your relocation.

Or option 2

a 6x6x6 spot in the graveyard of your choice!

because it's people like them that have conviced the govt we live to serve them Not!

rodsmith said...

as for this

"Anonymous Juror #1 said...
I was the member of a jury this week in a case involving a burglary and sexual assault in which the victim's cell phone was stolen and subsequently used by the suspect following the crime"

I would figure when the victim talked to the police they got

"the son of a bitch stole my phone. Track and kill his ass"

therefore legally they at that point had the owners permission.

No warrant needed.

Anonymous said...


This is an issue that I've struggled to wrap my head around. Is there any source that provides a /comprehensive/ review? The little I've seen is so generic that it raises more questions than it answers. I do agree with the person who was on the jury in one respect: the devil is often in the details. It can be next to impossible to find those details, though.

Gritsforbreakfast said...

12L54, that's why I'm in Connecticut right now learning more. Be sure to hit the tip jar to support that effort. In the meantime, this fellow's dissertation is one of the best things I've seen on the subject. He's at the event I'm attending today.