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.