A few months ago, it was revealed that police are routinely using phone tracking and sometimes hiding the fact that they use this type of surveillance. A New York Times report on the issue was based on documents turned over to the ACLU after many state affiliates filed public records requests with local law enforcement agencies. The Times noted that “civil liberties advocates say the wider use of cell tracking raises legal and constitutional questions, particularly when the police act without judicial orders.” There was much public debate about the tracking, and Sen. Al Franken (D-Minn.) began looking into the use of cellphone tracking by police, sometimes without judicial safeguards. Franken is chairman of the subcommittee on Privacy, Technology and the Law of the Senate Judiciary Committee. He sent a letter (pdf) to the Justice Department and Attorney General Eric Holder concerning the cellphone tracking and whether police procedures are “working around” a recent U.S. Supreme Court decision on location tracking.
In United States v. Jones, the police, without a valid warrant, placed a global positioning satellite (GPS) technology device on the car of a suspected drug dealer in Washington, D.C. The police then tracked the movements of Antoine Jones for several weeks with this device, and they used the data collected to convict him of conspiracy to sell cocaine. The Supreme Court was set to decide whether the warrantless surveillance and tracking was a search under the Fourth Amendment right against unreasonable searches and seizures. In a unanimous decision (pdf), the court held that police do need a valid warrant to place a GPS device on a vehicle.
Now, the ACLU has new results from its public record requests with local law enforcement agencies concerning the use of cellphone tracking:
It’s been over a year since 35 ACLU affiliates filed over 380 public records requests with state and local law enforcement agencies seeking information about their policies, procedures, and practices for tracking cell phones. […] We’ve posted the latest batch of documents received on our interactive webmap; here are highlights:
Some law enforcement agencies are trying to avoid letting the public know what they’re doing. The law enforcement guide for police in Irvine, CA specifically states, “Do not disclose this information in court any more than is absolutely necessary to make your case. Never disclose to the media these techniques—especially cell tower tracking.” We saw the same attitude in training materials from the Iowa Fusion Center, whichinstructs law enforcement, “Do not mention to the public or media the use of cell phone technology or equipment to locate the targeted subject.” Read: “We would hate for the public to know how easy it is for us to obtain their personal information. It would be inconvenient if they asked for privacy protections.” Law enforcement could most likely solve more crimes more expediently if they could break down a suspect’s front door or open his/her postal mail without a warrant, but as my colleague Catherine Crump points out, while that may be convenient, it is not okay. Warrantless cell phone location tracking shouldn’t be either. […]
More importantly, some of the law enforcement agencies in California, Nevada, North Carolina, and Wisconsin, reported that, like their counterparts in parts of Hawaii, Kansas, Kentucky, Nevada, and New Jersey, they always obtain probable cause warrants in order to track cell phone location information. […]
Overall, these new documents provide even more reason for Congress to pass the Geolocational Privacy and Surveillance Act, which would require law enforcement agents to obtain a warrant in order to access location information and, in the interim, for state legislatures to pass similar legislation at the state level.