While the US Supreme Court has ruled against warrantless GPS tracking, they left unresolved a host of issues related to cell phone tracking. So why should law enforcement bother getting a warrant or messing with a GPS tracking device? All they need to do is go to your cellular carrier and pay a fee, and they can get your location history, a record of your calls and other data from your mobile phone.
This is accomplished via a pen register, which according to Wikipedia is traditionally defined as:
…an electronic device that records all numbers called from a particular telephone line. The term has come to include any device or program that performs similar functions to an original pen register, including programs monitoring Internet communications.
From the Electronic Fronter Foundation (EFF):
Another purpose of pen/trap taps is to access information about your cell phone’s location in real-time. When your handset is powered on, it connects to nearby cell towers to signal its proximity, so that the towers can rapidly route a call when it comes through. Law enforcement can use pen/trap devices to monitor these connections, or “pings”, to pinpoint the physical location of the handset, sometimes within a few meters. And although Congress has made clear that pen/trap orders alone cannot be used to authorize this sort of location surveillance, it hasn’t yet clarified what type of court order would suffice. So, although many courts have chosen to require warrants for location tracking, others have not, and the government has routinely been able to get court authorization for such tracking without probable cause.
It gets worse. From the same EFF article…
…the police do have to go to court for permission to conduct a pen/trap tap and get your dialing information, but the standard for getting a pen/trap order is much lower than the probable cause standard used for normal wiretaps. The police don’t even have to state any facts as part of the Electronic Communications Privacy Act of 1986 — they just need to certify to the court that they think the dialing information would be relevant to their investigation. If they do so, the judge must issue the pen/trap order (which lasts for sixty days rather than a wiretap order’s thirty days). Also, unlike normal wiretaps, the police aren’t required to report back to the court about what they intercepted, and aren’t required to notify the targets of the surveillance when it has ended.
The ACLU recently requested cell phone location tracking records from law enforcement agencies around the US and published the results, and even linked to a collection of “manuals for police (PDF) explaining what data the companies store, how much they charge police to access that data, and what officers need to do to get it.” Here’s a little sample of what Verizon offers:
And if the phone company has the cajones to say no, then police departments can just do the surveillance themselves.
There is legislation being introduced in Congress to require law enforcement agencies to show probable cause and take out a warrant before accessing location information, although I don’t know what chance it has of passage.
Top image courtesy rmuser.