Notify cell phone users when law-enforcement accesses personal data

Check out this must-read item from MSNBC about state and local law enforcement accessing locator information from personal cell phones, using data uncovered by the ACLU from open records to analyze the growing frequency of such requests and the millions of dollars earned by cell phone carriers from the practice.

Grits was particularly interested in a suggestion by a former Justice Department official who "favors a system that would require cellphone carriers to inform customers – even after the fact – that law enforcement has obtained their location or cellphone call data." That would be an excellent idea for privacy legislation when the Texas Lege meets next year.

Selected cell-phone jamming may boost prison phone revenue

With the feds seemingly unlikely to approve comprehensive cell phone jamming in prisons anytime soon, Texas is considering a different technology that selectively blocks non-approved numbers, which seems like a much more reasonable and effective approach. Reports the Austin Statesman's Mike Ward, "Instead of jamming cellphone calls around prisons as Texas officials had earlier proposed, the California system would block outgoing cell calls, Web access and text messages by managing the cellphone signals at prisons — and allowing only signals from approved numbers to go through."

In California, the prison phone service provider paid for the new equipment because of massive lost revenue from unused pay phones, and the new technology supposedly has turned that dynamic around:

Efforts to curb cellphone smuggling into prisons have come up short, even though the state has spent millions of dollars on screening devices, surveillance cameras, detection devices and even phone-sniffing dogs.

[TDCJ spokesman Jason] Clark said Texas prison employees last year seized 904 cellphones in prisons or headed there, down from 1,480 three years ago. Prison officials attribute the decline to $60 million in security upgrades.

By contrast, California last year confiscated 15,000 cellphones at its 33 prisons. That's up from just 1,200 five years ago, according to officials.

Dana Simas, an information officer for the California Department of Corrections and Rehabilitation, said that under a new contract, Global Tel Link has agreed to spend as much as $35 million to install new equipment at each prison within the next three years. The first California unit is to get the gear by October, she said.

The company will pay all costs, Simas said, because it will get the revenue from the pay phones inside prisons that will once again be in demand.

The way the new system works: Each prison will get its own cell tower that will allow prison officials to control all incoming and outgoing calls. All others will not go through.

"After this system goes in, smuggled cellphones will be nothing more than glorified paperweights," Simas said. "A couple of years ago, there were long lines at the pay phones — hours long. By this year, no one was using them, there were so many smuggled cellphones."

Ending smart phone robberies with technology rather than arrests

A great deal of crime is circumstantial and/or opportunistic: Change the circumstances, maybe crime doesn't occur in the first place.

Much has been written about declining crime rates over the past two decades, but one of the few categories where one occasionally sees increases at the local level has been "robberies," and this tidbit from the Washington Post ("Wireless carriers partner with FCC, police on database of stolen cell phones," April 9) perhaps explains that occasional aberration: "Cellphone theft has been rampant in cities across the country. More than 40 percent of robberies in New York involve smartphones. In the District [of Columbia], 34 percent of all robberies are of cellphones, and cellphone theft increased 54 percent between 2007 and 2011."

That's perhaps unsurprising, but not a trend I've heard discussed much. I wonder what percentage of robberies in Texas involve smart phones? To the extent that's a driving factor, a new national initiative may soon all but eliminate smart phones as a motive for robbery. Reports the Post, "Within six months, consumers will be able to call Verizon Wireless, AT&T, Sprint Nextel and T-Mobile if their devices are stolen and the carriers will block the phones from being used again."

Excellent news. Just like it's easier for homeowners to lock their doors and windows than for police to solve a burglary, it's easier to eliminate the payoff from stealing a smart phone by disabling it than it is to generally deter through punishment alone.

RELATED: From Bruce Schneier, see 'Lost Smart Phones and Human Nature,' and 'Law Enforcement Forensics Tools Against Smart Phones'

Police quietly expanding warrantless cell phone tracking

The New York Times this weekend had a feature on the dramatic growth in cell-phone tracking by law enforcement based on thousands of pages of documents obtained by the ACLU from local police departments, reporting that:

While cell tracking by local police departments has received some limited public attention in the last few years, the A.C.L.U. documents show that the practice is in much wider use — with far looser safeguards — than officials have previously acknowledged.

The issue has taken on new legal urgency in light of a Supreme Court ruling in January finding that a Global Positioning System tracking device placed on a drug suspect’s car violated his Fourth Amendment rights against unreasonable searches. While the ruling did not directly involve cellphones — many of which also include GPS locators — it raised questions about the standards for cellphone tracking, lawyers say.

The police records show many departments struggling to understand and abide by the legal complexities of cellphone tracking, even as they work to exploit the technology.

In cities in Nevada, North Carolina and other states, police departments have gotten wireless carriers to track cellphone signals back to cell towers as part of nonemergency investigations to identify all the callers using a particular tower, records show. 

In California, state prosecutors advised local police departments on ways to get carriers to “clone” a phone and download text messages while it is turned off.

At the end of the story, there's a brief discussion about pending reform efforts:

Congress and about a dozen states are considering legislative proposals to tighten restrictions on the use of cell tracking.

While cell tracing allows the police to get records and locations of users, the A.C.L.U. documents give no indication that departments have conducted actual wiretapping operations — listening to phone calls — without court warrants required under federal law.

Much of the debate over phone surveillance in recent years has focused on the federal government and counterterrorism operations, particularly a once-secret program authorized by President George W. Bush after the Sept. 11 attacks. It allowed the National Security Agency to eavesdrop on phone calls of terrorism suspects and monitor huge amounts of phone and e-mail traffic without court-approved intelligence warrants.

Clashes over the program’s legality led Congress to broaden the government’s eavesdropping powers in 2008. As part of the law, the Bush administration insisted that phone companies helping in the program be given immunity against lawsuits.

Since then, the wide use of cell surveillance has seeped down to even small, rural police departments in investigations unrelated to national security. 

“It’s become run of the mill,” said Catherine Crump, an A.C.L.U. lawyer who coordinated the group’s gathering of police records. “And the advances in technology are rapidly outpacing the state of the law.”

This is an issue I'd like to see the Texas Legislature address in 2013, preferably creating a warrant requirement for obtaining personal information including location from people's cell phones. This practice will be abused without rigorous court oversight and strong laws protective of personal privacy.

As an aside, the Times continues to misstate the effect of a recent SCOTUS ruling on police placing GPS trackers on cars, insisting the court found "that a Global Positioning System tracking device placed on a drug suspect’s car violated his Fourth Amendment rights against unreasonable searches." In fact, SCOTUS ruled only that placing a GPS tracker on your car is a search, and did NOT go so far as to say it was an unreasonable one. The ruling was exceptionally narrow in that regard, and for some reason most of the media have overstated what the court actually said.

MORE: See ACLU's writeup of documents they received under open records.

Will Cowtown cell-phone trackers be used based on probable cause, or to obtain it?

The Fort Worth PD insists it was a misstatement, but an internal memo on its new Kingfish cell-phone tracking system said the device could be used for "developing probable cause." Previously the department had said they would only use the device after obtaining a search warrant, which would require obtaining probable cause before using it. Reported a local TV station:

A city memo describing the system's use sounds to some like police will track people's cellphones without first getting a warrant.

"The police department will use the KingFish System, a portable cellphone tracking system, to assist in locating, identifying, developing probable cause and apprehending priority offenders," the memo said.

The "developing probable cause" phrasing caught the attention of the American Civil Liberties Union. Police need to obtain a search warrant first, the organization said.

"Having a neutral party like a judge review and sign a warrant is the safeguard for individual privacy rights that prevents the police from simply using whatever tools are at their disposal to peek at, observe, watch or invade the privacy of folks at will," said Lisa Graybill, ACLU legal director.

But Fort Worth police say the description was misleading. The department always intended to obtain a search warrant before tracking someone, police said.

The department also said that if an arrest came from tracking someone, the district attorney, defense attorneys and a judge would all review the case.

If it was just a misstatement and they really do plan to get warrants, fine. If police intend to use the devices BEFORE they have probable cause, that's a problem. At a minimum they need some written policies on the subject. This was a consent-agenda item which wasn't discussed at all when the City Council approved it, and it sounds like the department's plans for the device and safeguards against abuse aren't as well-developed as they should be.

The newest toys in the box: Police deploy cell-phone trackers, drones

A pair of stories show how technology is rapidly reshaping old debates about the Fourth Amendment and privacy, raising questions about whether sketchy protections outlined in the 18th Century still serve to prevent government abuses using technologies the Founding Fathers couldn't imagine.

First, the Fort Worth Star-Telegram has a story about "a new cellphone tracking system authorized for purchase by the Fort Worth City Council this week."

The KingFish system, which gives police the ability to track cellphones without having to go through a provider or service, will cost more than $184,000 during its first year of operation, according to a memo prepared for City Council prior to its vote.

The memo said that Fort Worth police officers have already utilized the technology and have received training from agents with the U.S. Secret Service and the U.S. Marshal's task force, agencies that have assisted the police in using the tracking system in the past. The KingFish units are mobile and can be mounted on a vehicle or carried by officers in the field.

Those concerned about the technology's capabilities worry that police will use the system to monitor the movements of suspects or subjects of its investigations without first obtaining warrants or a judge's permission.

Read more here: http://www.star-telegram.com/2012/02/24/3759099/fort-worth-police-say-theyll-follow.html#storylink=cpy

Fortunately Texas state law is actually better developed than federal law on this question, and the Fort Worth police would absolutely be required to get a warrant in most circumstances. (A recent SCOTUS case ruled that using a GPS tracker on a vehicle is a "search," but declined to decide whether it required a warrant in federal cases.) Of course, it doesn't take very much to get a search warrant, and if the information is never used in court, nobody would know if they failed to do so, so in practice even a warrant is a relatively weak limitation.

Another problem with spending that much on a piece of technology is that then the agency will feel compelled to find reasons to use it, if only to reduce the cost-per-case figure when trying to justify the expense in the budget..

Then, at CNBC there's an item about the increasing use of drones by civilian police agencies, news media and an array of other possible users. The story opens:

Heads up: Drones are going mainstream. Civilian cousins of the unmanned military aircraft that have tracked and killed terrorists in the Middle East and Asia are in demand by police departments, border patrols, power companies, news organizations and others wanting a bird's-eye view that's too impractical or dangerous for conventional planes or helicopters to get.

Along with the enthusiasm, there are qualms.

Drones overhead could invade people's privacy. The government worries they could collide with passenger planes or come crashing down to the ground, concerns that have slowed more widespread adoption of the technology.

Despite that, pressure is building to give drones the same access as manned aircraft to the sky at home.

"It's going to be the next big revolution in aviation. It's coming," says Dan Elwell, the Aerospace Industries Association's vice president for civil aviation.

Unlike mobile tracking devices, Texas law - either our statutes or case law - are no more prepared for the challenges posed by police use of drone technology than at the federal level. There's basically a vacuum that, for now, lets police and other users do nearly whatever they want.

Every kid wants to play with the newest toy in the box, and police are no different, so these technologies are going to be used. The question is can they be adequately regulated, or will their novelty confound the courts and prevent lawmakers from adequately constraining them?

Read more here: http://www.star-telegram.com/2012/02/24/3759099/fort-worth-police-say-theyll-follow.html#storylink=cpy