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Law Enforcement Tracking Cell Phones

Last updated on Friday, April 6, 2012

(UNDATED) - New information from the American Civil Liberties Union indicates that cell phone tracking is commonly used by local law enforcement agencies across the country, often without obtaining warrants or showing probable cause.

"What we have learned is disturbing," said Catherine Crump, staff attorney for the ACLU Speech, Privacy and Technology Project.

Teresa Seiger, reports In August 2011, the ACLU sent public records requests to nearly 400 police agencies across the U.S. Of the 200 who answered so far, just 10 said they don't track cell phones for investigations.

The remaining agencies made it clear that there are no national or even state standards for obtaining cell phone records, and very little, if any, oversight from the courts.

Six agencies said they required a warrant and probable cause to track phones. The remainder used varying standards to determine whether they needed a warrant or probably cause, or they used lower standards altogether.

"The fact that some law enforcement agencies do get warrants shows that a probable cause requirement is a completely reasonable and workable policy, allowing police to protect both public safety and privacy," Crump said.

In North Carolina, 52 agencies responded to the ACLU's request. A majority of these left it unclear as to whether they used tracking or not, but 27 admitted they engaged in some form of the practice.

The Chatham County Sheriff's Department told the ACLU they got real-time GPS tracking records from phones based on the "reasonable suspicion" standard. The standard is significantly lower than probable cause, using a number of inferences derived from the facts of a case to justify tracking phones.

The Wilson County Sheriff's Department obtains court orders for historical cellsite or signaling information when the information is "relevant to an ongoing investigation," a standard even lower than the one utilized in Chatham County.

"These findings raise tremendous privacy concerns for individuals all across North Carolina," said Katy Parker, legal director of the ACLU of North Carolina Legal Foundation. "In order to preserve Americans' constitutional right to privacy, the government should have to obtain a warrant before tracking people's cell phones."
Of the 10 agencies that said they didn't track phones, five were in New Jersey. Of the 46

Garden State agencies that responded to the ACLU's request, 27 said they engaged in some form of cell tracking.

"While New Jersey residents have widely embraced cell phones for the convenience they offer on a daily basis, they have also given the government an unprecedented ability to monitor people's movements by tracking the geographical location of their cell phones," said Bobby Conner, an attorney for the ACLU New Jersey's Open Governance Project, when the requests went out.

The remaining 14 responses were ambiguous as to whether they used tracking or not, or refused to disclose whether they did.

Cases revolving around the constitutionality of warrantless cell phone tracking have popped up around the country as the practice becomes more prevalent in court proceedings.

"The ability to access cell phone location data is an incredibly powerful tool and its use is shrouded in secrecy," Crump said. "A detailed history of someone's movements is extremely personal and is the kind of information the Constitution protects."

In January, the Supreme Court came close to addressing this issue when they decided that a GPS tracking device attached to a suspect's car had violated his Fourth

Amendment right to privacy, saying the circumstances resulted in an unwarranted search.

"People reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks," Justice Sonia Sotomayor wrote. "People disclose phone numbers that they dial or text to their cellular providers; the URLs that they visit and the email addresses with which they correspond to their internet service providers; and the books, groceries and medications they purchase to online retailers."
Still, the Court decided not to rule on the issue of technology and privacy.

A discussion draft of a possible bill was released shortly after the ruling by Rep. Edward J. Markey, D-MA. The bill, which has not yet been introduced in the House of Representatives, would require cell phone companies to disclose what monitoring software is installed on their devices, what information is collected, who gets to see it and why.

A report from the Pew Internet & American Life Project found that 83 percent of Americans had at least one cell phone in 2011. According to research from CTIA, an international association for the wireless industry, there are 322.8 million cell phones in use across the country.

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