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Can You See Me Now?

I’m sure you love your cell phone, and as you know, they’re not just for yakkin’ anymore. They’re status symbols, entertainment centers, essential accessories, and multimedia transceivers, and every week somebody comes out with a new phone that does something else for you. I happen to enjoy the vibrate function very much, but everybody has their favorite feature. Brain cancer be damned, the things are cool. They’re increasingly making land-line phones irrelevant. If you’ve got one that works in your pocket, why do you need another one on your wall?

Did you know that your cell phone phones home every couple of seconds? Even when you’re not using it, but just have it turned on? Cell phones are constantly monitoring the available signal strength from the closest cell towers—that’s where those five bars come from, and why they constantly change.

Now, pay attention. Your cellular company can track the silent conversations your cell phone has with the transmitters, and by triangulating which transmitters are picking up your phone and the relative signal strength among them, the company can figure out pretty much where you are, all the time. Sort of like GPS, except without the satellites flying around.

And the cellular companies are required to do this, by law. Federal regulations were put in place in 1997, supposedly to ensure that 911 calls coming from cell phones could be automatically tracked. Privacy wonks at the time expressed a lot of concern over what else the information would be used for.

The privacy wonks, of course, were right. Apparently, for as long as this information has been generated, law-enforcement agencies have routinely been going to judges with applications for orders forcing the cellular companies to reveal this tracking information, allowing law enforcement to track individuals’ whereabouts in real time. The applications contained little more than an investigator’s statement that tracking the individual will aid in a criminal investigation. And for a couple of years, judges have been signing the orders. Hundreds, maybe thousands of them. The orders are issued in secret, under seal, to protect the integrity of the investigations, and there are no criminal defense attorneys to challenge the applications, because with an ongoing investigation, there are no defendants—yet.

Last summer, one judge, bothered by the breadth of the orders and the ease by which the government got them, decided not to take the government’s word for it anymore. He researched the patchwork quilt of laws the government had been relying upon to get these orders, and found there was absolutely no legal justification for them. Instead, the judge found that law enforcement, to get an order allowing it to track a person using real-time cell-phone data, needed to demonstrate probable cause, which is a reasonable belief that a crime had been (or is about to be) committed by that person, the same standard used for search warrants or wiretaps.

Note the difference here, because it’s huge: The government had been getting its search orders based on a signed (and unquestioned) statement that tracking a person would aid in an investigation, a very low, almost nonexistent threshold. And the person being tracked didn’t even have to be the target of the investigation. The judge found that allowing the government to use a person’s cell phone like a tracking device required a much greater showing: that the person the police seek to track in all probability actually committed a crime. It’s a much higher standard, and more importantly, sharply reduces the number of folks the police could conceivably track.

On the heels of this finding, two more judges made the same determination, variously finding the government’s rationale for the orders “perverse,” “misleading,” “contrived,” “a hail Mary,” and a failed “three rail bank shot.” Interestingly, the government has refused to appeal any of these rulings so as not to create a binding judicial precedent, and is probably continuing to get orders allowing it to track people, in secret and under seal, from other judges in other jurisdictions who are too lazy, too pliant, or too uninformed to challenge the applications.

I suppose the judges who’ve stood up, who are from New York, Texas and Maryland, will be attacked for being “activist judges,” the neocon buzzword for judges who believe that laws and the Constitution mean what they say, and not what the Executive Branch and the Bible say they say. In any event, along with other recent revelations of illegal domestic spying, data mining, and warrant-less interception of civilians’ telephone calls, this is one more horror to pile on to the Orwellian dung heap. 1984 seems like just yesterday.

—Paul Rapp

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