Justice department thinks it can track cell phones without warrant

February 14, 2010

Justice department thinks it can track cell phones without warrantA Justice Department attorney told a Philadelphia federal appeals court that he saw “no constitutional bar” to the acquisition of cellular service provider information which details the location of cell phone users.

Mark Eckenwiler, a senior attorney in the criminal division of the Justice Department said, “The government is not required to use a warrant when it uses a tracking device.” Clearly, Eckenwiler considers a cell phone to be such a tracking device and he sees no constitutional problem with obtaining data from cellular providers that can reveal the approximate locations of handheld and mobile devices, according to a CNET story.

The judge in the case, Dolores Sloviter, seemed to question the view held by Eckenweiler, noting that those records could reveal if cell phone users “have been at a protest, or at a meeting, or at a political meeting” and that rogue governments could misuse that information. Further, it is known that police are tapping into the locations of mobile phones thousands of times a year. The legal ground rules for such surveillance techniques remain unclear, and federal privacy laws written a generation ago are ambiguous in cases such as these.

Susan Freiwald, a law professor at the University of San Francisco, told the court, “When the government acquires historical cell location information, it effectively commandeers our cell phones and turns them into electronic trackers that report, without our knowledge or consent, where we have been and how long we have spent there. We should be able to use our cell phones without them creating a virtual map of our every movement and association.”

A court ruling favorable to the Justice department would almost certainly result in a further appeal by privacy advocates, possibly resulting in a Supreme Court judgement on this issue. It is also possible that the Justice Department would appeal the case if the Philadelphia appeals court rules against it. Such tracking information can be very detailed if done prospectively, a method which can reveal the minute-by-minute location of a handset or mobile device. Real-time tracking of mobile devices, or even release of records which contain similar information,  by or to law enforcement agencies without a warrant would appear to bring us very near to an Orwellian situation in which Big Brother always knows where we are.

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5 Responses to “Justice department thinks it can track cell phones without warrant”

  1. DavidB:

    SO…all you Obama fans out there that decried the Bush administration taking essentially the same position, where are you now? Are you still so blinded by “the One” that you fail to see evil in anything he does?

  2. Ross Wolf:

    Where U.S. Justice Department Is Headed With This GPS Case:

    In 2008 Telecoms were granted government immunity after they helped U.S. Government spy on millions of Americans’ electronic communications. Neither Congress nor the courts—determined what NSA electronic surveillance could be used by police or introduced into court by the government to prosecute citizens. In 2004, former Attorney General John Ashcroft asked government prosecutors to review thousands of old intelligence files including wiretaps to retrieve information prosecutors could use in “ordinary” criminal prosecutions. That was shortly after a court case lowered a barrier that blocked prosecutors from using illegal-wire tap evidence in Justice Dept. “Intelligence Files” to prosecute ordinary crimes. It would appear this information, may also be used by government to prosecute civil asset forfeitures. See: http://www.securityfocus.com/news/5452

    Police too easily can take an innocent person’s hastily written email, fax or phone call out of context to allege a crime or violation was committed to cause an arrest or asset forfeiture. Under federal civil forfeiture laws, a person or business need not be charged with a crime for government to forfeit their property. The Patriot Act specifically mentions using Title 18USC asset forfeiture laws: those laws include a provision in Rep. Henry Hyde’s 2000 bill HR 1658—for “retroactive civil asset forfeiture” of “assets already subject to government forfeiture”, meaning “property already tainted by crime” provided the “property” was already part of or “later connected” to a criminal investigation in progress” when HR.1658 passed. That can apply to more than two hundred federal laws and violations.

    Obama’s recently signed executive order EO 12425 that will now allow U.S. police to circumvent the Fourth Amendment by working with INTERPOL in criminal and Civil Investigations. U.S. Police can now bring INTERPOL into a civil or criminal investigation to circumvent the Fourth Amendment to share in assets seized from Americans and Europeans. There are over 200 U.S. laws and violations mentioned in the Civil Asset Forfeiture Reform Act of 2000 and the Patriot Act that can subject property to civil asset forfeiture.

    Since the U.S. Patriot Act passed, several European Countries entered into Asset Forfeiture Sharing Agreements with the U.S. With such a weak U.S. statute of limitations and the low standard of civil proof needed for U.S. Government to forfeit property “A civil preponderance of Evidence”, it is problematic INTERPOL working with U.S. law enforcement and private contractors will want access to Foreign Bank Records, telecom/NSA and other government wiretaps perhaps illegal, to secure evidence to arrest Americans and Europeans and or civilly forfeit their assets under Title 18USC and other laws.

  3. FreedomLover:

    The United States of America is rapidly becoming the Union of American Socialist Republics…

  4. JohnJ:

    DavidB: Where does Obama figure into this? The attorney has been around since way before Obama took office. Here’s ( http://www.mccullagh.org/image/10d-14/mark-eckenwiler-spyware.html ) a picture of him from 2004 that notes him working it the “deputy chief of Justice Department’s computer crime and intellectual property section”. Oh, that was during the Bush administration.

  5. follyb:

    Agree with Ross Wolf—to see the 700 to 800+ pages
    of property our Federal Government is intending to permanently take from its citizens (and even non-citizens) often without filing criminal charges against anyone (much less convicting someone of a crime) see Forfeiture.gov. Forfeiture is becoming more and more pervasive in this country, and getting your property back, even if a totally innocent owner is absolutely onerous. You must carefully comply with strict claim filing rules; if you mess up, you lose. Once you file a claim, the Gov. will then file
    a civil law suit against the property with you as a
    “claimant”—you must now hire an attorney, fight in
    court with motions and discovery, etc., and even appear before a jury….and it’s even worse if your
    innocent party is named in a criminal indictment—then you may have to wait YEARS until the conclusion of the criminal matter to get your day
    in court. Our Gov. considers this “DUE PROCESS”—
    and this is becoming more and more cemented in our laws.

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