Justice Department to defend warrantless cell phone tracking
news.cnet.com
news.cnet.com
Right now, all over the country, the FBI obtains sealed (secret) court orders to obtain real time cell site data under a "hybrid theory" combining the Pen/Trap Statute (law for obtaining incoming and outgoing phone numbers) and Stored Communications Act (law for obtaining stored subscriber information from ISPs). However, Pen/Trap says location data cannot be obtained through its operation and the SCA only permits disclosure of "historical" not real time information.
The result is, the FBI obtains information to track individuals under a standard well below probable cause from a magistrate judge. The orders are sealed, and because the order applications are made ex parte, their legality has never been litigated in court or given meaningful judicial review.
Magistrate Judges Stephen Wm. Smith in Texas and Orenstein in New York were the first judges to question the government's theory and deny applications. An application Smith denied in 2010 is the subject of this appeal.
This is Smith's Congressional testimony from 2010 which gives a good (and readable) overview of the problems in the current system: http://or.fd.org/Sady/Judge%20Smith%20testimony.pdf
And here is a law review article that deals with highly convoluted legal issues: http://www.arizonalawreview.org/pdf/53-2/53arizlrev663.pdf
I want the protection of 'requiring a judge's approval' before police are allowed to track me. The risk of having my self or my information at the mercy of either corrupt, or easily hacked, law enforcement is too great.
Because governments, including the american government, are well known to also persecute the innocent.
It's not about murderers, fraudsters and rapists --it's all about political cases, whistleblowers, dissidents, and such.
On the other hand turn it around. Suppose that there was a rash of burglaries and you were the investigating officer. Wouldn't you want to be able to find all cell phones that were in proximity to a significant number of the burglaries at the time that they happened? This kind of speculative data mining could be a good source of leads, but you can't engage in it unless you have a lot of data on a lot of innocent people. (And, as always with data mining, until you have the data, you don't know what questions you want to ask of it.)
But the problem is that if the data is centralized and accessible, the minority who would abuse it will access it as well. And the worse abusers are people like Hoover and Nixon - people who will use this data to try to push political aims.
I can see allowing this -- with a warrant. I'd tempted to say it will stop working after the first few arrests but criminals can be pretty stupid.
I would submit that, given the ability to abuse such centralized and accessible information for political aims, a large percentage of people would do so; incentives have a remarkable way of corrupting power. And that's precisely why I oppose such things even when I have nothing to hide.
I can see a rationale that they aren't really false positives since nobody is being accused or whatever, but that's just moving the goalposts such that it becomes OK to investigate random people like Nixon and Hoover (et al), but I will put good money down on the eventuality of someone with a criminal record, a cellphone, and an airtight alibi getting their home raided and them being injured or killed.
Of course it's a good source of leads, for some value of "lead." That's the problem. By way of analogy, there are plenty of people, some of them extremely high profile, who have criminally affected the world's economies and are getting away with it right this minute, so maybe let's take care of the crimes we have actual evidence of laws being broken before we get all Inspector Gadget about relatively minor crimes.
The only difficult part of the issue is how to explain it in a way that portrays it as both harmless and necessary, because it's neither.
Do people seriously believe that investigative detectives for burglaries (or even murders) have such clout and influence as to pass federal laws concerning wiretapping and phone tracking?
This is all about the government wanting the extra ability to gather data on citizens, for political reasons.
The 2012 version of the huge files J.E. Hoover had on everyone that mattered then.
It's not about "stopping crime".
This kind of thing does happen and I don't have a problem with it. It's how the FBI caught the "Scarecrow Bandits" in Texas. http://news.cnet.com/8301-13578_3-10451518-38.html
There was also a recent case where the FBI was looking for a person distributing child pornography on Youtube. They found that 3 of his IP addresses originated at hotels. So they cross-referenced the hotel guest registries and identified the one guy who had been registered at all the hotels at the relevant times.
This seems like a perfectly legitimate method of investigating a crime and I don't think anyone is arguing that police ought to be prevented from doing what they did with the Scarecrow Bandits.
The problem is that the Government wants to be able to target a person and track their movements via a cellphone based only on a showing of reasonable grounds to believe that the location data is relevant and material to an ongoing criminal investigation. This essentially allows the government to conduct fishing expeditions.
The US Supreme Court has taken a very legalistic view of what constitutes "search and seizure", what constitutes "in public" and what constitutes "private". These views don't coincide with common usage of any of the words or phrases, so yes, most people would be shocked to find out how they've been snooped on.
But I doubt the current Supreme Court will do anything other than allow it, on some weird technical basis that only lawyers and judges can understand or love.
They threw out all hope of remaining remotely constitutional when they ruled in Gonzales v. Raich.
See: http://en.wikipedia.org/wiki/Gonzales_v._Raich and http://en.wikipedia.org/wiki/Wickard_v._Filburn
Actually, when I've told people about this, they just shrugged it off. The fact of the matter is, the vast majority of people just don't care about these sorts of things, or think that it's OK for the government to do it.
And most people WONT have a problem caused by choosing the latter.
It's the few people, people who probably wouldn't chose it in the first place, that would get affected.
People like the future Martin Luther Kings and Malcom Xs, Joe Hill, Jimmy Hoffa, victims of the McCarthy persecution, the EFF, whistleblowers, anti-war protesters, OWS, etc etc.
I remember reading stories about how if you leave your bluetooth on, you're basically leaving your phone wide open. These days though, most phones require four digit passcodes and what I assume are fail2ban-like features. Am I wrong to assume that, or does it not matter for other reasons?
I know TV shows like Person of Interest use technology more as a plot device than as a display of possibility, but the idea of forced pairing was a thing at some point, wasn't it?