The Battle over Law Enforcement and Cell Data

Data at Risk: Super Scary Facts

In a sense, the politics of mass surveillance crosses the typical political lines. The Obama Administration has taken at least as hard a line as the Bush Administration that preceded it. And Rand Paul, a Republican, is much closer to the liberal wing of the Democratic party than Republican party, as befits his libertarian beliefs.

It is important to understand the nuances when bits and pieces of news occur. This week, AT&T filed an amicus brief with the 11th U.S. Circuit Court of Appeals suggesting that a nationwide standard is necessary on the question of whether the government should need a warrant to obtain somebody’s cell phone records.

The problem cited by AT&T is that the laws, and thereby the procedural rules, are unclear. Ars Technica quoted from the filing:

Considerable legal uncertainty surrounds the standards the government must satisfy to compel the production of location information, and achieving legal clarity is essential to protecting consumer privacy, defining the scope of legitimate law enforcement interests, and ensuring the efficient operation of companies operating in various sectors of the digital economy.

In the same case, an appeal by Florida resident Quartavious Davis over his sentence for a string of robberies, the Administration argued that the privacy of cell phone records is not a reasonable assumption. The story says that various courts have disagreed on the question. That’s a sure sign that the matter ultimately will be decided by the Supreme Court.

Cell towers were in the news this week in another related way. The Wall Street Journal reports on a program by the U.S. Marshals Service’s Technical Operations Group that features small airplanes that collect data from mobile phones. It does this, as reported by AppleInsider, by use of a device called a “dirtbox.” The program seems to be a lawsuit waiting to happen:

Privacy safeguards appear to be built in as the dirtboxes parse out devices linked to criminals and “lets go” of phones that are not suspect. Sources, however, suggest data is still gathered prior to release.

These are not academic issues. They are real. The “stingray” device referenced in this story posted by The News Tribune, which covers the Tacoma, Washington, area, sounds a lot like the Marshal Services’ dirtbox:

From 2009 to earlier this year, the county’s Superior Court judges unwittingly signed more than 170 orders that Tacoma police and other local law enforcement agencies say authorized them to use a device that allows investigators to track a suspect’s cellphone but also sweeps cellphone data from innocent people nearby.

In both cases, the issues surround the admissibility of evidence gathered in this manner and whether it is legal to collect records of other people even if nothing is done with it. The News Tribune story says that Pierce County’s superior judges now require clear statements of how the device will be used.

These are not easy questions. Technology exists today that can make us much safer. But, if it is used to its fullest extent, our rights may be curtailed and our privacy violated. The battle over where the lines are drawn will go on for decades.

Carl Weinschenk covers telecom for IT Business Edge. He writes about wireless technology, disaster recovery/business continuity, cellular services, the Internet of Things, machine-to-machine communications and other emerging technologies and platforms. He also covers net neutrality and related regulatory issues. Weinschenk has written about the phone companies, cable operators and related companies for decades and is senior editor of Broadband Technology Report. He can be reached at cweinsch@optonline.net and via twitter at @DailyMusicBrk.