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Tue October 29, 2013
All Tech Considered

Who Has The Right To Know Where Your Phone Has Been?

Originally published on Wed October 30, 2013 7:49 am

You probably know, or should know, that your cellphone is tracking your location everywhere you go. But whether law enforcement officials should have access to that data is at the center of a constitutional debate.

Matt Blaze, a professor of computer and information science at the University of Pennsylvania, says location tracking is key to how the cell system operates.

"As you move around, your phone is constantly checking to see whether the tower that it's currently registered with is the best one, or whether there's a better tower with a stronger signal coming in range," he says. Cellphone companies store that information so they can deliver better service.

That's handy for the police. Law enforcement agencies across the country already subpoena phone location data regularly. The district attorney for Suffolk County, Mass., regularly asks phone companies for cellphone location information.

The subpoenas are "part of almost every major case, including homicide, in some cases, sexual assault, drug trafficking cases," says Jake Wark, a spokesman for the office.

While the National Security Agency has conceded that it does collect records of U.S. phone traffic, it says it does not currently track the location of cellphones. But the agency also says that it would be legal to collect that information.

In Massachusetts, A Test Case

In many states, the use of that data has led to a movement to protect cellphone location information. One cellphone search, in particular, could serve as a test case for civil liberties groups challenging law enforcement's access to such information.

Shabazz Augustine stands accused of murdering a former girlfriend nine years ago. Massachusetts state prosecutors want to use information they got about the location of his cellphone at the time.

Matt Segal, legal director of the ACLU of Massachusetts, told the state's high court that the evidence should be thrown out, because police got it using a simple subpoena, not a search warrant.

"All the government has to show is that the information they're requesting is relevant and material to an ongoing investigation," Segal says.

That standard is too low, he says, and encourages searches before a crime is committed — like the collection of nearly all the nation's phone traffic by the NSA. The government relies on that same relevance standard to justify collecting bulk phone records.

Now, groups like the ACLU are arguing in court that widespread use of cell location data shows that digital information needs stronger protections. Segal says it should be released only when it meets a higher standard: probable cause to show someone has committed a crime.

"What we're focused on is the possibility that governments are obtaining this kind of location information on many people who have not committed crimes," Segal says.

The 'Third-Party Rule'

The New Jersey Supreme Court has already backed the idea that cellphone location information is so revealing, it should be better-protected. Montana, Maine and other states have also passed laws backing the same approach.

Those state efforts have given hope to civil libertarians that they can get the federal courts to go along — something that might put chains on the NSA. But Orin Kerr, a law professor at George Washington University, says, not so fast.

"The state cases have no direct impact on federal standards, because they're interpreting state constitutions, not the federal Constitution," he says.

Federal courts have ruled consistently that the location of your cellphone is just like any other business record: already out of your possession, and not protected by the Fourth Amendment. Until the U.S. Supreme Court says otherwise, Kerr says, information you give to a provider is fair game.

"So far, courts have applied the third-party rule across the board. So as long as the information is disclosed to a third party, that's it," he says.

Civil liberties groups point out that federal standards rest on Supreme Court rulings that date back decades, before mobile technology became so commonplace. They hope a cascade of favorable decisions in the states might push the federal courts to see digital information differently.

Copyright 2013 NPR. To see more, visit http://www.npr.org/.

Transcript

RENEE MONTAGNE, HOST:

The National Security Agency has admitted to collecting bulk records of U.S. phone traffic, but the agency says it does not currently track the location of cell phones. The NSA has said it would be legal to collect that information and law enforcement agencies across the country do subpoena such data on a regular basis. That's led to a movement to protect cell phone location information.

NPR's Larry Abramson reports that civil liberties groups hope it will lead to tougher rules for all government surveillance.

LARRY ABRAMSON, BYLINE: First some basics, you probably know, or should know, that your cell phone is tracking your location wherever you go. Professor Matt Blaze, of the University of Pennsylvania, says that's just how the cell system operates.

MATT BLAZE: As you move around, your phone is constantly checking to see whether the tower it's currently registered with is the best one, or if there's a better tower with a stronger signal coming in range.

ABRAMSON: Cell phone companies store that information so they can deliver better service. That's handy for the police. The Suffolk County, Massachusetts district attorney regularly asks phone companies for that information, according to spokesman Jake Wark.

They're a part of almost every major case, including homicide, sexual assault, drug trafficking cases.

And one cell phone search in particular could serve as a test case for civil liberties groups who are challenging law enforcement access to such information.

Shabazz Augustine stands accused of murdering a former girlfriend nine years ago. And state prosecutors want to use information that they got about the location of his cell phone at the time. The ACLU's Matt Segal told the state's high court, that evidence should be thrown out, because police got it using a simple subpoena, not a search warrant.

MATT SEGAL: All the government has to show is that the information is they are requesting is relevant and material to an ongoing investigation.

ABRAMSON: That standard is too low, Segal says, and encourages searches before a crime is committed, like the collection of nearly all the nation's phone traffic by the National Security Agency. The government relies on that same relevance standard to justify collecting bulk phone records. Now, groups like the ACLU are arguing in court, that widespread use of cell location information shows that digital information needs stronger protections.

Matt Segal says it should only be released when it meets a higher standard; probable cause to show someone has committed a crime.

SEGAL: When we do this case, what we're focused on is the possibility that governments are obtaining this kind of location information on many people who have not committed crimes.

ABRAMSON: The New Jersey Supreme Court has already backed the idea that cell phone location information is so revealing, it should be better protected. Montana, Maine, and other states have also passed laws backing the same approach. Those state efforts have given the civil libertarians hope they can get the federal courts to go along, something that might put chains on the NSA.

But George Washington University law professor Orin Kerr says, not so fast.

ORIN KERR: The state cases have no direct impact on federal standards, because they're interpreting state constitutions, not the federal constitution.

ABRAMSON: Federal courts have ruled consistently that the location of your cell phone is just like any other business record: Already out of your possession and not protected by the fourth Amendment. Kerr says until the U.S. Supreme Court says otherwise, information you give to a provider is fair game.

KERR: So far, courts have applied the third party rule across the board. So as long as the information is disclosed to a third party, that's it.

ABRAMSON: Civil liberties groups point out that federal standards rest on Supreme Court rulings that date back decades, before mobile technology became so commonplace. They hope a cascade of favorable decisions in the states might push the federal courts to see digital information differently.

Larry Abramson, NPR News.

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