Wireless Carriers Who Aid Police Are Asked for Data

May 3, 2012

The New York Times on May 2, 2012 released the following:


WASHINGTON — A leading House Democrat is demanding information from the country’s biggest cellphone companies about their role in helping local police departments conduct surveillance and tracking of suspects and others in criminal investigations.

Representative Edward J. Markey of Massachusetts, the co-chairman of the Congressional Bipartisan Privacy Caucus, said in a letter sent Wednesday to eight major wireless carriers that he was “deeply concerned” that routine tracking of cellphone use by law enforcement officials in many departments “may violate the privacy rights of Americans.”

In his letter, Mr. Markey sought data from the cellphone carriers on the number of requests for help they have received from law enforcement officials in cell tracking and surveillance operations, their policies on whether they require the authorities to secure court warrants, the use of cellphone surveillance in nonemergencies, the fees they charge the police and other information.

His letter was prompted by an April 1 article in The New York Times on the routine use of cellphone surveillance by local police departments, even in nonemergency situations. Mr. Markey’s office provided a copy of his letter to The Times.

The move by Mr. Markey puts the cellphone companies in the middle of a protracted public debate over the balance between civil liberties safeguards and the authorities’ use of surveillance technology. The issue has received renewed public attention recently as a result of a Supreme Court ruling in January finding that police use of a GPS device on a drug suspect’s car without a warrant violated his Fourth Amendment rights.

CTIA, the wireless industry trade association, said it had no comment on the Congressional request.

Ed McFadden, a spokesman for Verizon, one of the companies from which Mr. Markey is seeking information, said in a statement: “We will review the letter and be responsive. In responding to law enforcement requests, Verizon Wireless follows the law.”

An AT&T spokesman, Michael Balmoris, said, “We received the congressman’s letter and will respond accordingly.”

Representative Joe L. Barton, the Texas Republican who is co-chairman of the House privacy caucus with Mr. Markey, did not respond to requests for comment.

The privacy caucus has no formal subpoena power to gather records. But an official with the caucus who spoke on condition of anonymity in discussing internal matters said that private companies had normally complied with requests from the caucus and that Mr. Markey was confident that the cell companies would give him the information he was seeking.

Politicians and lawyers on both sides of the surveillance issue have debated where the line should be drawn between giving the authorities the technological tools they need and protecting the privacy of the public. Mr. Markey is seeking information not only on the legal and policy implications of cellphone surveillance, but also on the financial relationship between police departments and phone carriers — an area that has received little public attention.

The Times article, based on 5,500 pages of documents that the American Civil Liberties Union received from 205 police departments, found that cellphone carriers often charged local police departments anywhere from a few hundred dollars for using a cellphone to track a suspect’s location, up to $2,200 for a full-scale wiretap of a suspect.

The documents showed that police departments routinely used cellphone tracking for both emergency and nonemergency situations, sometimes without getting court warrants. With police policies varying widely, gray areas in the law have given departments wide discretion in determining what types of situations justify phone surveillance and whether court orders are needed. Some departments have even bought their own phone surveillance equipment and bypassed the carriers.”


Douglas McNabb – McNabb Associates, P.C.’s
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The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

FBI Still Struggling With Supreme Court’s GPS Ruling

March 21, 2012

NPR March 21, 2012 released the following:


Earlier this year, the Supreme Court said police had overstepped their legal authority by planting a GPS tracker on the car of a suspected drug dealer without getting a search warrant. It seemed like another instance in a long line of cases that tests the balance between personal privacy and the needs of law enforcement.

But the decision in U.S. v. Jones set off alarm bells inside the FBI, where officials are trying to figure out whether they need to change the way they do business.

Before the Supreme Court ruling in late January, the FBI had about 3,000 GPS tracking devices in the field.

Just in case, government lawyers scrambled to get search warrants for weeks before the decision, working to convince judges they had probable cause to believe crimes were taking place.

But after the ruling, FBI officials tell NPR, agents still had to turn off 250 devices that they couldn’t turn back on.

FBI director Robert Mueller III addressed the issue this month at a House Appropriations Committee hearing. He said the ruling will change the way agents work.

“It will inhibit our ability to use this in a number of surveillances where it has been tremendously beneficial,” Mueller said. “We have a number of people in the United States whom we could not indict, there is not probable cause to indict them or to arrest them who present a threat of terrorism. … [They] may be up on the Internet, may have purchased a gun, but have taken no particular steps to take a terrorist act.”

Before the high court decision, the FBI would have deployed electronic trackers to monitor those people. Now, teams of six or eight agents have to watch them, taxing the agency’s resources.

4th Amendment In Computer Age

Andrew Weissmann is the top lawyer at the FBI. He says the Supreme Court made a distinction about the Fourth Amendment, which guards against unreasonable searches and seizures, ruling that computers that follow suspects are much more intrusive than people doing the same thing.

“The court essentially is saying that you have an expectation of privacy even though if it was done by humans there would be no violation,” Weissmann says. “But because it’s done by machines, it is.”

In the Supreme Court case, FBI agents investigating a cocaine trafficking ring secretly put a GPS tracker on a Jeep belonging to Washington, D.C., nightclub owner Antoine Jones. They kept it there for weeks, without getting approval from a judge.

“In the Jones case, the Supreme Court held that reasonable people do not expect the government to track their location by attaching a GPS device to the bottom of the car for, in that case, 28 days,” says Catherine Crump of the American Civil Liberties Union.

The full implications of the decision are still coming into focus.

A concurring opinion by Justice Samuel Alito said that a month was too long to track a suspect by GPS without a warrant, but two days would probably be fine. That leaves a big gap for law enforcement to figure out on its own.

Weissmann says FBI agents in the field need clear rules. So, for now, he’s telling agents “when in doubt, to obtain a warrant to protect your investigation.”

But he says that’s not always possible.

“And the problem with that is that a search warrant requires probable cause to be shown and many of these techniques are things that you use in order to establish probable cause,” Weissmann says. “If you require probable cause for every technique, then you are making it very very hard for law enforcement.”

Beyond GPS Devices

Government lawyers say the Supreme Court decision reaches well beyond electronic trackers.

“That decision is reverberating very quickly into areas that I’m sure lots of you care about: national security, cyber security, privacy, more generally,” said Solicitor General Don Verrilli at a recent Georgetown University Law Center conference.

The Justice Department is predicting new fights over cars that come with GPS already installed, and cameras the FBI sticks on poles to catch drug dealers and speeders.

Then there’s the big enchilada: cell phone data.

The U.S. Court of Appeals for the Fifth Circuit will hear a case this year about whether the government can get access to cell phone location data without a warrant.

You might be surprised to know it but every eight seconds or so, your cell phone can transmit information to a local cell tower signaling where you are.

Crump, of the ACLU, says that’s a lot more intrusive than putting a tracker on someone’s car.

“After all, a cell phone is something you carry with you wherever you go,” Crump says. “And we don’t think the government should be accessing that type of information without a really good reason, which they can demonstrate by getting a warrant from a judge.”

As for Antoine Jones, whose case made Supreme Court history, prosecutors say they’ll try him again — maybe using some of the location data from his cell phone.”


To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.