(NEW YORK) MintPress — Once again, what began as a counterrorism measure by the government is threatening to violate the basic rights of American citizens.
After the Sept. 11 attacks, President George W. Bush allowed the National Security Agency (NSA) to eavesdrop on phone calls of terrorism suspects and monitor phone and e-mail traffic without court-approved intelligence gathering warrants.
Since then, according to new information obtained by the American Civil Liberties Union (ACLU), the wide use of cell phone surveillance has spread to local police departments, which often employ the technique in investigations having nothing to do with national security.
Police maintain it can help in emergencies and criminal cases, but the ACLU contends that it raises legal and constitutional issues.
“It’s become run of the mill,” said Catherine Crump, staff attorney for the ACLU’s Speech, Privacy and Technology Project. “And the advances in technology are rapidly outpacing the state of the law.”
ACLU investigation
Last August, in an unprecedented effort to determine the full extent of the practice, 35 ACLU affiliates around the country filed over 380 requests under states’ freedom of information laws, asking state and local law enforcement agencies about their policies, procedures and practices for tracking cell phones.
What it found was that many of the 205 law enforcement agencies responding to its requests track cell phones without any warrant. While many departments do require warrants to use phone tracking in non-emergencies, others claim the right to pursue the records on their own.
“What we have learned is disturbing. The government should have to get a warrant before tracking cell phones. That is what is necessary to protect Americans’ privacy, and it is also what is required under the Constitution,” said Crump.
“The fact that some law enforcement agencies do get warrants shows that a probable cause requirement is a completely reasonable and workable policy, allowing police to protect both public safety and privacy.”
While cell tracing allows the police to get records and locations of users, the ACLU documents do not show that departments have conducted actual wiretapping operations — listening to phone calls — without court warrants required under federal law.
Tracking down the device
It is possible to attain the current position of a cell phone, whether it’s stationary or moving, using the Global Positioning System (GPS)— many phones include GPS locators — or other technology that can determine where the user is in relation to a nearby antenna tower or radio station. The process doesn’t require an active call.
The US Supreme Court ruled in January that the use of GPS devices placed by police on a suspect’s car constitutes an “unreasonable search” under the Fourth Amendment of the Constitution. But the question of cell phone tracking is still making its way through the courts.
Legislating privacy
The ACLU for its part supports bipartisan legislation, currently pending in both the House of Representatives and the Senate, called the Golocation Privacy and Surveillance Act. It would require law enforcement officers to obtain a warrant to access location information from cell phones or GPS devices.
The act would also mandate that private telecommunications companies get their customers’ consent before collecting location data. The ACLU said the tracking can be lucrative for mobile operators, many of which charge fees to law enforcement for a range of services, including tracing phone calls and texts.
“We shouldn’t have to choose between using the modern technology that society has come to rely upon” said the ACLU’s Sarah Roberts, “and being able to expect that our private information will remain private.”