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Art Deco art.deco.studios at gmail.com
Sun Apr 1 12:33:20 PDT 2012

  [image: The New York Times] <http://www.nytimes.com/>

March 31, 2012
Police Are Using Phone Tracking as a Routine Tool By ERIC

WASHINGTON — Law enforcement tracking of cellphones, once the province
mainly of federal agents, has become a powerful and widely used
surveillance tool for local police officials, with hundreds of departments,
large and small, often using it aggressively with little or no court
oversight, documents show.

The practice has become big business for cellphone companies, too, with a
handful of carriers marketing a catalog of “surveillance fees” to police
departments to determine a suspect’s location, trace phone calls and texts
or provide other services. Some departments log dozens of traces a month
for both emergencies and routine investigations.

With cellphones ubiquitous, the police call phone tracing a valuable weapon
in emergencies like child abductions and suicide calls and investigations
in drug cases and murders. One police training manual describes cellphones
as “the virtual biographer of our daily activities,” providing a hunting
ground for learning contacts and travels.

But civil liberties advocates say the wider use of cell tracking raises
legal and constitutional questions, particularly when the police act
without judicial orders. While many departments require warrants to use
phone tracking in nonemergencies, others claim broad discretion to get the
records on their own, according to 5,500 pages of internal records obtained
by the American Civil Liberties
205 police departments nationwide.

The internal documents <http://www.aclu.org/locationtracking>, which were
provided to The New York Times, open a window into a cloak-and-dagger
practice that police officials are wary about discussing publicly. 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.

In Ogden, Utah, when the Sheriff’s Department wants information on a
cellphone, it leaves it up to the carrier to determine what the sheriff
must provide. “Some companies ask that when we have time to do so, we
obtain court approval for the tracking request,” the Sheriff’s Department
said in a written response to the A.C.L.U.

And in Arizona, even small police departments found cell surveillance so
valuable that they acquired their own tracking equipment to avoid the time
and expense of having the phone companies carry out the operations for
them. The police in the town of Gilbert, for one, spent $244,000 on such

Cell carriers, staffed with special law enforcement liaison teams, charge
police departments from a few hundred dollars for locating a phone to more
than $2,200 for a full-scale wiretap of a suspect, records show.

Most of the police departments cited in the records did not return calls
seeking comment. But other law enforcement officials said the legal
questions were outweighed by real-life benefits.

The police in Grand Rapids, Mich., for instance, used a cell locator in
February to find a stabbing victim who was in a basement hiding from his

“It’s pretty valuable, simply because there are so many people who have
cellphones,” said Roxann Ryan, a criminal analyst with Iowa’s state
intelligence branch. “We find people,” she said, “and it saves lives.”

Many departments try to keep cell tracking secret, the documents show,
because of possible backlash from the public and legal problems. Although
there is no evidence that the police have listened to phone calls without
warrants, some defense lawyers have challenged other kinds of evidence
gained through warrantless cell tracking.

“Do not mention to the public or the media the use of cellphone technology
or equipment used to locate the targeted subject,” the Iowa City Police
Department warned officers in one training manual. It should also be kept
out of police reports, it advised.

In Nevada, a training manual warned officers that using cell tracing to
locate someone without a warrant “IS ONLY AUTHORIZED FOR LIFE-THREATENING
EMERGENCIES!!” The practice, it said, had been “misused” in some standard
investigations to collect information the police did not have the authority
to collect.

“Some cell carriers have been complying with such requests, but they cannot
be expected to continue to do so as it is outside the scope of the law,”
the advisory said. “Continued misuse by law enforcement agencies will
undoubtedly backfire.”

Another training manual prepared by California prosecutors in 2010 advises
police officials on “how to get the good stuff” using cell technology.

The presentation said that since the Supreme Court first ruled on
wiretapping law in 1928 in a Prohibition-era case involving a bootlegger,
“subtler and more far-reaching means of invading privacy have become
available to the government.”

Technological breakthroughs, it continued, have made it possible for the
government “to obtain disclosure in court of what is whispered in the

In interviews, lawyers and law enforcement officials agreed that there was
uncertainty over what information the police are entitled to get legally
from cell companies, what standards of evidence they must meet and when
courts must get involved.

A number of judges have come to conflicting decisions in balancing
cellphone users’ constitutional privacy rights with law enforcement’s need
for information.

In a 2010 ruling, the United States Court of Appeals for the Third Circuit,
in Philadelphia, said a judge could require the authorities to obtain a
warrant based on probable cause before demanding cellphone records or
location information from a provider. (A similar case from Texas is pending
in the Fifth Circuit.)

“It’s terribly confusing, and it’s understandable, when even the federal
courts can’t agree,” said Michael Sussman, a Washington lawyer who
represents cell carriers. The carriers “push back a lot” when the police
urgently seek out cell locations or other information in what are purported
to be life-or-death situations, he said. “Not every emergency is really an

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

“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.”

The same is true of Emails and IMs.    I hope a Supreme Court case
addresses this in my opinion intrusion soon.

Art Deco (Wayne A. Fox)
art.deco.studios at gmail.com
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