WASHINGTON—A privacy organization is calling for location-tracking information to be given to law enforcement only with a warrant indicating that there is probable cause that a crime has or is about to be committed.
“Traditionally, the law has made a distinction between the content of the call and the numbers dialed,” said Jim Dempsey, policy director for the Center for Democracy and Technology. “The location information is much more sensitive. It shows much more about your association, your activities—much more revealing about what the person is doing even when the phone is not making a call. We argue this should be available only under the probable-cause standard.”
CDT made its recommendations in a report released last week. The report details the evolution of government access to location tracking, but Dempsey noted, “You can search the case law and not find anywhere what the government standard is for location tracking.”
The government has been arguing that it does not need probable cause for location tracking; this seems to run counter to rules that were adopted implementing the Communications Assistance for Law Enforcement Act of 1994. Those rules said that law enforcement was entitled to pen-register information from a cell-phone conversation at the beginning and end of the call. This information would make it similar to a pen register in the wired world, which gives the date, time and number called. Because the location is fixed in the wired world, the location is known.
“The magistrates have had a revolt. Five of them in different areas of the country have ruled the government needs a probable-cause warrant. One has gone in the opposite direction. The Department of Justice has appealed none of them,” said Dempsey.
Technology advances have not made it more difficult for government to catch criminals and protect against terrorism, a frequent excuse being given for the recently disclosed National Security Agency domestic wiretap program, Dempsey contended. “Technology does make the government’s job more difficult, but on balance, the digital revolution has been a law enforcement boon. There is more information available. The government has been very adept at exploiting these technologies,” he said.
Location tracking is one area that has become easier. Where before a location beeper had to be surreptitiously put on a person or vehicle, today people carry cell phones with them everywhere.
“We are all wedded to the cell phone,” said Dempsey.
The NSA domestic-wiretap program was revealed by the New York Times as debate was hot on renewal of the USA Patriot Act, a law passed in the wake of the Sept. 11 attacks that strengthened law enforcement’s ability to collect and share intelligence information. CDT believes that while the debates over the Patriot Act and whether the NSA program violates the Foreign Intelligence Security Act are important, it is the trends in technology that are most worrisome. “The technology trends far overshadow in their consequences,” said Dempsey.
