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felon-on-the-run in an actual emergency. Current law allows agents to do precisely that because there would be ample evidence of wrongdoing, or probable cause, that they can present to a judge.
The problem is that the Justice Department's current official position--a flip-flop from its previous official position--says police should be able to secretly monitor your whereabouts as long as they claim that tracking could possibly be "relevant" to some investigation. Not only is that insufficiently privacy-protective, it doesn't track what the law actually says.
Some judges are courageous enough to point this out. U.S. Magistrate Judge William Callahan in Wisconsin last month denied the Justice Department's request to track a suspected drug user through his Cingular Wireless phone. The feds were helping out on behalf of the Wisconsin narcotics bureau, which claimed in court documents that "by obtaining cell site information for (the target's) cellular telephone, it may be able to determine (his) source for cocaine."
Citing Freeh's testimony, Callahan said it was abundantly clear that "the language which found its way into the law was predicated on the director's assertion to Congress that (the law) would not be used to secure location information for the cellular phone user." But, Callahan noted, prosecutors are relying on "precisely" that language today.
"I cannot find any contemporaneous understanding by either Director Freeh or the Congress that the government had the capability that it now has to ascertain the location of a person using a cell phone," Callahan added.
It's true that in the case before Callahan, prosecutors were asking for the location of Cingular cell towers being used by the cell phone only when calls were being made, not when the handset was idle. That yields only a rough approximation of a location, depending on how many towers there are nearby.
But given the Justice Department's logic, there's nothing stopping prosecutors from asking for more data next time. Thanks to regulations from the Federal Communications Commission, wireless handsets must know their locations within a few hundred feet, regardless of whether their owner wants it. Some newer gadgets, such as the Hewlett-Packard's iPaq hw6515, have built-in GPS (Global Positioning System) receivers that are far more precise.
Those detailed data streams are potentially available to police. In one court document (click here for PDF), U.S. Attorney Michael Garcia claims, "A cell phone user voluntarily transmits a signal to the cell phone company and thereby assumes the risk that the cell phone provider will reveal to law enforcement the cell site information."
Consider the implications. If you voluntarily transmit your exact GPS-derived location to a cellular provider--so you can get information returned about nearby restaurants or driving directions--the Justice Department apparently believes that your location should be available without a warrant.
That's not what Louis Freeh promised, that's not what Congress wrote, and that's not what a majority of federal judges who have looked at this have decided. But for now, there's nothing stopping prosecutors from shopping around and finding a sympathetic judge who will find some way to interpret the law in their favor next time.
Declan McCullagh is CNET News.com's chief political correspondent. He spent more than a decade in Washington, D.C., chronicling the busy intersection between technology and politics. Previously, he was the Washington bureau chief for Wired News, and a reporter for Time.com, Time magazine and HotWired. McCullagh has taught journalism at American University and been an adjunct professor at Case Western University.
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