You may already know this, but your cell phone happens to be a miniature tracking device that can be used to monitor your location from afar.
There are times when knowing your exact location is useful, of course. It would be handy for a phone to help you find a gas station in a pinch, or bleep when you're about to take the wrong highway exit.
Cell phone surveillance
In a string of cases that was first reported by CNET News.com, federal judges have wrestled with whether to permit warrantless tracking of the location of cell phones. Some of the representative cases from last year:
Aug. 25, 2005: Judge James Orenstein denies surveillance request
Oct. 14, 2005: Judge Stephen Smith denies surveillance request.
Dec. 20, 2005: Judge Gabriel Gorenstein approves surveillance request.
But the FBI and the U.S. Department of Justice have seized on the ability to locate a cellular customer and are using it to track Americans' whereabouts surreptitiously--even when there's no evidence of wrongdoing.
A pair of court decisions in the last few weeks shows that judges are split on whether this is legal. One federal magistrate judge in Wisconsin on Jan. 17 ruled it was unlawful, but another nine days later in Louisiana decided that it was perfectly OK.
This is an unfortunate outcome, not least because it shows that some judges are reluctant to hold federal agents and prosecutors to the letter of the law.
It's also unfortunate because it demonstrates that the FBI swore never to use a 1994 surveillance law to track cellular phones--but then, secretly, went ahead and did it, anyway.
FBI officials swore never to use a 1994 surveillance law to track cellular phones but are doing it, anyway.
When lobbying for that law, the Communications Assistance for Law Enforcement Act, then-FBI Director Louis Freeh assured the U.S. Senate that location surveillance would never take place unless there was evidence of wrongdoing.
"It does not include any information which might disclose the general location of a mobile facility or service, beyond that associated with the area code or exchange of the facility or service," Freeh testified. "There is no intent whatsoever, with reference to this term, to acquire anything that could properly be called 'tracking' information."
So much for promises from politicians.
Nobody is saying, of course, that police should be denied the ability to locate a
Biography 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.
Louis Freeh may very well have been true to his word about the FBI's use of surveillance. However, it is foolish to expect the promises of one Director's administration to be upheld by another. Congress has a notorious reputation for imposing on rights. Perhaps a Supreme Court decision on this matter will clarify any rights Americans have with regard to the tracking of personal digital consumer products by commercial and governmental groups.
The present Supreme Court might find probable cause in someone's dream, or nightmare. You may not like the result. So don't buy a GPS based phone, or not only will cops get to you, so will your spouses lawyer and his subpoena. Good luck.
I sleep better at night knowing that the government is watching most everybody all of the time. The goal is to learn how they do it and avoid that if possible. I still consider it an invasion of privacy, but with some crazy people these days I'll accept it.
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