BOB GARFIELD: And, I'm Bob Garfield. In the early '90s, cell phone service was so easy to hack that in some places up to 70 percent of cell phone traffic was stolen. Service providers turned to police to trace those illegal calls by using pings to gauge how far the caller was from the cellular tower. In time, law enforcement got used to having access to that information. For anyone who’s watched TV series like 24 or movies like Enemy of the State, the ability to track a suspect in real time, based on cell phone data, seems to be almost limitless.
[CLIP FROM ENEMY OF THE STATE]:
BRILL: In your phone was a GPS SAT-tracker. It pulses at 24 Giga-Hertz.
WILL SMITH AS DEAN: I don’t know what that means.
GENE HACKMAN AS BRILL: You speak English?
WILL SMITH AS DEAN: Obviously not that well.
GENE HACKMAN AS BRILL: You’re kind of a jerk, aren’t you? It means the NSA can read the time off your wristwatch.
[END CLIP]
BOB GARFIELD: Congress’ last attempt to rein in the government’s power to track your calls was with the 1994 Communications Assistance for Law Enforcement Act or CALEA. It set a clear standard for obtaining data about past cell phone calls, calls that might reveal where you were last week, but it doesn't address real time calls that reveal where you are right now. Because CALEA skipped over real time information, it’s become a legal thicket, so much so that Al Gidari, a Seattle lawyer who’s been litigating cell phone cases since the early '90s, predicts that soon Congress will weigh in again because both privacy rights advocates and law enforcement know all too well the secrets cell phones can reveal.
AL GIDARI: Today law enforcement simply identifies the phone, serves the right kind of order, and the carrier regularly delivers the cell tower information. That’s the built-in capability. There still is the ability to get much more granular, the Enemy of the State kind of tracking, where when a phone registers regularly on a network every few minutes, you can look at the time it takes for that signal to arrive at the tower and literally triangulate the precise location for where that user may be found.
BOB GARFIELD: Now, you mentioned different kind of orders that police come knocking on the phone company’s door carrying. I guess the most common is where is such-and-such a phone right now. But there are a couple of other things that police can ask for – the historical data of where a phone has been, and also using behavioral extrapolation they can actually figure out where you’re apt to be next, or patterns of your traveling. Are there different levels of court order required for different levels of information from the phone carriers?
AL GIDARI: The answer is yes, and maybe, yes for the historical records where we know today that an independent judge must look at a request and approve it, based on specific and articulable facts that the information is relevant to an investigation. Now, that’s not the probable cause standard people are used to hearing about when you talk about getting a search warrant. Then, for what I would describe as real-time/where-are-you-right-now information, there’s an ongoing debate. Several magistrates and judges at the federal level have said that they believe that information requires a probable cause search warrant to obtain. And, indeed, magistrates have rejected requests for location tracking information on the lower standard.
BOB GARFIELD: Of course, law enforcement always comes to the legislature and says, we need these tools, so that they usually invoke terrorism. But is there any evidence that the police are being insufficiently judicious in the number of court orders they're seeking?
AL GIDARI: There is no question that we want them to have the tools and to use them when they need them. The problem is there’s no transparency in when it is used today. Neither Congress nor the American public know how many such orders have been requested. They aren't reported. We have seen abuse. I often talk about one instance where a local sheriff ordered the pinging of a phone – is it on and where is it - over the course of a 12-hour period because his daughter hadn't come home from a date.
[BOB LAUGHS] But when you’re presented with an emergency request, you don't look behind the government’s request. So, on average today, we're seeing probably on order of a couple hundred requests a week for emergency location tracking.
BOB GARFIELD: One of the quirks of cell phone tracking is that it’s not quite a wiretap, because nobody’s listening in to you, and it’s not quite ordinary surveillance, like a stakeout or cops following you around town. I wonder if, as is usually the case, law enforcement and the privacy hawks are on completely different pages on the law around cell phone tracking, or whether there is, to some degree, an overlap, a meeting of the minds?
AL GIDARI: No, I think they are in completely different places. The privacy groups think it has so many things that you don't even think about when you talk about location, like the right to travel, the right to do that without the government knowing where you’re going [LAUGHS] or predicting where you’re doing – your First Amendment rights, since you - your location might be tracked when you’re in the midst of a protest So the attributes of location and the ability to misuse them, the privacy groups believe that it should be subject to the very highest level of scrutiny. The government would like to have this as they would calling records, on the lowest threshold of a mere subpoena. They would prefer to not have the hurdle of judicial oversight for it, if possible.
BOB GARFIELD: And the phone companies, for their part, I'm assuming, just want to be told what to do and they don't care what the law is, just so long as it’s straightforward?
AL GIDARI: They want certainty. They don't want to be overwhelmed with requests that are frivolous, and they don't want people to turn their phones off. So, [LAUGHS] the notion of having it tracked easily and often by anyone, anywhere really goes to the heart of the business model, which is to keep your phone on and answer it when it rings.
BOB GARFIELD: All right. Al, thank you very much.
AL GIDARI: A pleasure.
BOB GARFIELD: Al Gidari is a partner with the Seattle law firm Perkins Coie.