Tag: cell phones

Goodbye, Secretary LaHood

Just 12 hours ago I expressed disappointment that Secretary of Transportation Ray LaHood had expressed his intent of “sticking around for a while” as a cabinet member in President Obama’s second term. Now – I suppose it’s just coincidence – LaHood says he’s departing after all. Promoted as the Republican in the Obama cabinet (at least the one left after the departure of Defense Secretary Robert Gates), the former Illinois Congressman has been a veritable fount of anti-libertarian proposals and regrettable policy decisions over the past four years: 

  • LaHood’s best-known crusade, against “distracted driving,” enthusiastically built on earlier Washington initiatives muscling into traffic laws formerly decided at the state and local level. While he did back off earlier press reports that had him favoring a national ban on cellphone use in cars, even handsfree, he promoted such wacky ideas as having cops peer down into cars from overpasses to see whether drivers are paying enough attention to the road, and mandating technologies that would automatically disconnect phones in moving cars (what could go wrong?).
  • Known while in Congress as friendly toward pork-barrel projects, LaHood provided a bipartisan gloss for his free-spending department: the Post recounts his efforts “helping implement billions of dollars in transportation projects from the 2009 economic stimulus bill and promoting the plan to wary Republicans.” Combining his two enthusiasms, LaHood pushed a program of local “nanny grants” that drew resistance from House Republicans.
  • After trial lawyers and feckless reporters ginned up an “unintended acceleration” scare against Toyota, LaHood wasn’t in a position to reverse the engineering judgment of the career technical staff at the National Highway Traffic Safety Administration (NHTSA), who concluded the scare (like earlier ones against Audi and other makes) was bogus. But he seems to have done what he could to make life hard for the foreign-owned automaker, levying heavy fines over disclosure issues and delaying the release of the technical findings exculpating the company. Some felt that as a high officer of a government that had taken over and was running competitors GM and Chrysler, LaHood was in a bit of a conflicted position as judge-and-sentencer of Detroit’s envied Japanese rival.
  • Early speculation on a replacement includes the name of Los Angeles Mayor Antonio Villaraigosa. He’d probably leave me nostalgic for LaHood.

Secret Cell Phone Tracking in the Sunshine State

The South Florida Sun-Sentinel provides us with one more data point showing the growing frequency with which police are using cell phones as tracking devices—a practice whose surprising prevalence the ACLU shone light on in April. In fiscal year 2011-2012, the first year Florida kept tabs on cell location tracking, state authorities made 171 location tracking requests—and apparently hope to expand the program.

The article alludes to a couple of specific cases in which location tracking was employed—to find a murder suspect and a girl who was thought to have been kidnapped—both of which are perfectly legitimate uses of the technology in principle. In general, if there’s enough evidence to issue an arrest warrant, the same evidence should support a warrant for tracking authority when the suspect’s location isn’t immediately known. In cases where police have a good faith belief that there’s a serious emergency—such as a suspected kidnapping—it’s even reasonable to allow police to seek location information without a court order, as is standard practice with most other kinds of electronic records requests. But the Sun-Sentinel report is also unsettlingly vague about the precise legal standard followed in non-emergency cases. According to a law enforcement official quoted in the story, the Florida Department of Law Enforcement’s Electronic Surveillance “always seeks judicial approval to trail someone with GPS,” while the written policy only “instructs agents to show probable cause for criminal activity to the department’s legal counsel to see if a court order is necessary,” implying that it sometimes is not necessary.

The term “court order,” however, is quite broad: the word that’s conspicuously absent from these definitions is “warrant”—an order meeting the Fourth Amendment’s standards. In the past, the Justice Department has argued that many kinds of location tracking may be conducted using other kinds of authority, such as so-called “pen register” and “2403(d)” orders. Unlike full-fledged search warrants, which require a showing of “probable cause” to believe the suspect has committed a crime, these lesser authorities require only “reasonable grounds” to believe the information sought would be “relevant” to some legitimate investigation. That is, needless to say, a far lower hurdle to meet.

Police refusal to discuss the program with reporters is also part of a larger pattern of secrecy surrounding location tracking. As Magistrate Judge Stephen Smith observes in a recent and important paper, such orders are often sealed indefinitely—which in practice means “forever.” Unlike the targets of ordinary wiretaps, who must eventually be informed about the surveillance after the fact, citizens who’ve been lojacked may never learn that the authorities were mapping their every move. Such secrecy may be useful to police—but it also means that improper use of an intrusive power is far less likely to ever come to light.

Location tracking can be a valuable tool for an array of legitimate law enforcement purposes—but especially in light of the Supreme Court’s unanimous decision in United States v. Jones, it has to be governed by clear, uniform standards that satisfy the demands of the Fourth Amendment.

Wyden Pressing Intel Officials on Domestic Location Tracking

Back in May, during the debates over reauthorization of the Patriot Act, Sens. Ron Wyden (D-OR) and Mark Udall (D-CO) began raising a fuss about a secret interpretation of the law’s so-called “business records” authority, known to wonks as Section 215, arguing that intelligence agencies had twisted the statute to give themselves domestic surveillance powers Congress had not anticipated or intended. At the time, I marshaled a fair amount of circumstantial evidence that, I thought, suggested that the “secret authority” involved location tracking of cell phones. Wyden backed off after being promised a secret hearing to address his concerns—but indicated he’d be returning to the issue if he remained unsatisfied. The hearing occurred early last month. Now I suspect we’re seeing the other shoe dropping.

At a confirmation hearing this morning for Matthew Olsen, who’s been tapped to head the National Counterterrorism Center, Wyden repeatedly asked the nominee whether the intelligence community “use[s] cell site data to track the location of Americans inside the country.” This comes on the heels of a letter Wyden and Udall sent to Director of National Intelligence James Clapper demanding an answer to the same question. Olsen was unsurprisingly vague, calling it a “complicated question” but allowing that there were “certain circumstances where that authority may exist.” The committee was promised a memo explaining those “circumstances” by September. That means that just about ten years after Congress approved the Patriot Act, a handful of legislators may get the privilege of learning what it does. Ah, democracy.

On a related note, one of the data points I cited in my previous post was that Wyden’s Geolocation Privacy and Surveillance Act had, somewhat unusually, been structured primarily as a reform to the Foreign Intelligence Surveillance Act (FISA), which governs intelligence spying, only later incorporating the same protections into the statutes governing ordinary criminal investigations. Especially striking was the inclusion of a specific prohibition on the use of Section 215 for location tracking, above and beyond the general warrant requirement. Since that writing, however, the bill gained Republican co-sponsorship, and dropped the changes to FISA that had previously been the bill’s centerpiece. Instead, the bill now contains an explicit exception for FISA “electronic surveillance,” in addition to the section providing for location tracking authorized by either a criminal or a FISA warrant. I’m not privy to whatever negotiations necessitated that change, but it’s hard to imagine anyone would have insisted on such a substantial restructuring if the intelligence community weren’t doing at least some location tracking pursuant to a lower standard than probable cause.

It’s not entirely clear exactly what the current version of the bill would permit, however. FISA is mentioned twice in the draft: once as part of a vague general exemption for “electronic surveillance,” and then again as one of the sources of authority for a “warrant” to do geolocation tracking. At a first pass, though, those two definitions ought to overlap, because FISA requires a secret intelligence court to issue a warrant based on probable cause (to believe the target is an “agent of a foreign power”) for government monitoring that falls within the FISA’s definition of “electronic surveillance,” in contrast with the far laxer standards that apply to the use of Section 215. It’s therefore an interesting puzzle what, exactly, that exception is meant to permit. Possibly the idea is to permit the (otherwise prohibited) “use” and “disclosure” of geolocation information already obtained without a warrant in order to target future judicially authorized “electronic surveillance,” but it’s hard to be sure. What does seem increasingly sure, however, is that location tracking is connected to the controversy over Section 215—and that Congress owes the American people a debate over the proper use and scope of that power, which it has thus far refused to have.

The Latest ‘Intelligence Gap’

Stop me if you think you’ve heard this one before. The Washington Post reports that the National Security Agency has halted domestic collection of some type of communications metadata—the details are predictably fuzzy, though I’ve got a guess—in order to allay the concerns of the secret FISA Court that the NSA’s activity might not be technically permissible under the Foreign Intelligence Surveillance Act. Naturally, there’s the requisite quote from the anonymous concerned intel official:

“This is a basic tool we used to have, and it’s now gone,” said one intelligence official familiar with the impasse. “Every day, every week that goes by, there’s just one more week of information that we’re not collecting. You sit there and say, ‘This is unbelievable that we have this gap.’”

I want to take claims like these with due gravity, but I can’t anymore.  Because we’ve heard them again and again over the past decade, and they’ve proven to be bogus every time.  We were told that the civil liberties restrictions built into pre-9/11 surveillance law kept the FBI from searching “20th hijacker” Zacarias Moussaoui’s laptop—but a bipartisan Senate panel found it wasn’t true. We were told limits on National Security Letters were FBI delaying agents seeking vital records in their investigations—but the delay turned out to have been manufactured by the FBI itself. Most recently, we were warned that the FISA Court had somehow imposed a requirement that a warrant be obtained in order to intercept purely foreign telephone calls that were traveling through U.S. wires.  Anyone who understood the FISA law realized that this couldn’t possibly be right—and as Justice Department officials finally admitted under pressure, that wasn’t true either.  But this time there’s a really real for serious “intelligence gap” and we’ll all be blown up by scary terrorists any minute if it’s not fixed?  Pull the other one.

That said, Republicans are claiming the problem requires a mere “technical fix” to FISA, so we should at least be able to get a rough sense of what the issue is, if Congress actually decides to act.  Democrats, by contrast, appear to think NSA can “address the court’s concerns without resorting to legislation.” The word “resort” here seems depressingly apt: They’ll ask for a legislative tweak if there’s absolutely no way to shoehorn what they want to do into the statute through clever lawyering in an ex parte proceeding in front of a highly deferential court, but it’s a last resort.

As for what the problem might be, I can think of a couple of possibilities off the top of my head.  A few years back, the FISA pen register provision was amended to effectively build into the legal order for a standard pen register, which records data about calls or e-mails made and received, language mirroring a legal demand for subscriber records known as a 2703(d) order in the criminal context.  Law enforcement routinely uses that combination of a 2703(d) plus a pen register to get location tracking information for cell phones. But the evidentiary standard for getting a 2703(d) order is (very) slightly higher than the standard for a pen register alone, and federal law prohibits the use of a pen register alone to gather location data. So there might be a question about whether FISA pen registers alone can be used for cell phone location tracking purposes.

Alternatively, given that Internet communications aren’t just “metadata” and “content” but rather a whole series of layers containing different types of information, there could be a question about just how far down “metadata” goes. This might be especially tricky for protocols where quite a lot of information about the content of the communication—which is supposed to require a full probable cause warrant—can be gleaned from sophisticated analysis of the size and timing of packets in the stream.

These are, of course, blind guesses.  What’s disturbing is how much blind guessing the FISA court itself may be doing.  The new hiatus, the Post tells us via an anonymous source, came about when the FISA Court “got a little bit more of an understanding”of what the NSA was up to. Their enhanced understanding concerns data that NSA has been getting with the court’s approval for “several years,” according to the Post. And there you have the real “intelligence gap” in modern surveillance: We have a Court going through a pantomime of oversight over thousands of highly technologically sophisticated interception programs, but it may take a few years for them to really understand what they’ve been signing off on.

We’ll understand still less about the rationale for any “technical fix” to FISA that Congress might approve, if they deign to go that route. But we’ll be reassured that it’s very important, necessary to keep us safe from the terrorist hordes, and nothing worth bothering our pretty heads about.

Poor Judgment All Around

When school administrators discovered nude photos of teenage girls in the cell phones of some boys at school, they decided to set an example and crack down on “sexting.”  The school officials took the matter to the local prosecutor.  The prosecutor, in turn, informed the parents of the girls that the youngsters would either have to attend a multi-session education and counseling class or face felony child pornography charges.

The letter to the parents explaining the “program” stated, “Participation in the program is voluntary. …  However, charges will be filed against those that do not participate.”  Hmmm.  This curious arrangement was challenged in a lawsuit and the court found the prosecutors’ actions illegal.  Go here (pdf) for the ruling.  Will the prosecutor be sanctioned for the illegal action?  Don’t count on it.

Cell Phones and Ingratitude

When I was a kid in the 1960s and we came back from a visit to my grandmother’s, my mother used to call my grandmother, let the phone ring twice, and then hang up. It was important for my grandmother to know that we’d arrived home safely, but long-distance telephone calls were too expensive to indulge in unnecessarily. When I entered Vanderbilt University in 1971, my parents had to decide whether to pay for a telephone in my dorm room. They decided to do so, but most of the thoroughly upper-middle-class students on my floor did not have phones. Phones cost real money back then. Then came the breakup of the AT&T monopoly in 1984. Phone technology and competitive service provision exploded. In 1982, Motorola produced the first portable mobile phone. It weighed about 2 pounds and cost $3995. Within a very few years they were much smaller, much cheaper, and selling like hotcakes.

Today there are some 4.6 billion mobile phones in the world, and counting, or about 67 per every 100 people in the world. The newer ones allow you to carry in your hand more computing power than the computers that put Apollo 11 on the moon.  You can cruise the internet, find your location with GPS, read books, send texts, pay bills, process credit cards, watch video, record video, stream video to the web, take and send photos – oh, and make phone calls from just about anywhere. Unimaginable just a few years ago.

And to celebrate this incredible achievement, Slate and the New America Foundation are holding a forum titled “Can You Hear Me Now? Why Your Cell Phone is So Terrible.”

This is an old story. Markets, property rights, and the rule of law provide a framework in which technology and prosperity soar, and some people can only complain. I was reading some of Deirdre McCloskey’s forthcoming book Bourgeois Dignity this week. She points out that the average person lived on the equivalent of $3 a day in 1800. Today there are six and a half times as many people, but the average person earns and consumes 10 times as much, far more than that in the most capitalist countries. And yet some people, most leftist intellectuals, continue to ignore what McCloskey calls “the gigantic gains from bourgeois dignity and liberty” and to denounce the markets, economic liberalization, and globalization that have liberated billions of people from eons of back-breaking labor.

Now don’t get me wrong. I’m a big fan of consumer reporting and analysis, which is an important part of a robust marketplace. Competition and consumer reporting both help to keep prices low and quality improving. And there’s plenty of room for criticism of cell phone pricing, contracting, and service. But when a discussion like this is held by a public policy research organization and a public-affairs magazine as part of a program on public policy, then it’s not just consumer advice. It is presumably a discussion of what the sluggish, coercive institution of government can do to improve – or more likely impede – a fabulously dynamic, constantly improving consumer-directed industry. And that usually ends in tears.

Maybe we should hold a forum titled “Can You Hear Me Now? And Watch Me on Video? And Read My Book on Your Handheld Device? And Check Your Blood Pressure and Glucose? How Markets, Innovation, and Entrepreneurs Have Taken Cell Phone Technology from Clunker to Computer in Barely a Generation.”

The Government Can Monitor Your Location All Day Every Day Without Implicating Your Fourth Amendment Rights

If you have a mobile phone, that’s the upshot of an argument being put forward by the government in a case being argued before the Third Circuit Court of Appeals tomorrow. The case is called In the Matter of the Application of the United States of America For An Order Directing A Provider of Electronic Communication Service To Disclose Records to the Government.

Declan McCullagh reports:

In that case, the Obama administration has argued that Americans enjoy no “reasonable expectation of privacy” in their—or at least their cell phones’—whereabouts. U.S. Department of Justice lawyers say that “a customer’s Fourth Amendment rights are not violated when the phone company reveals to the government its own records” that show where a mobile device placed and received calls.

The government can maintain this position because of the retrograde “third party doctrine.” That doctrine arose from a pair of cases in the early 1970s in which the Supreme Court found no Fourth Amendment problems when the government required service providers to maintain records about their customers, and later required those service providers to hand the records over to the government.

I wrote about these cases, and the courts’ misunderstanding of privacy since 1967’s Katz decision, in an American University Law Review article titled “Reforming Fourth Amendment Privacy Doctrine”:

These holdings were never right, but they grow more wrong with each step forward in modern, connected living. Incredibly deep reservoirs of information are constantly collected by third-party service providers today. Cellular telephone networks pinpoint customers’ locations throughout the day through the movement of their phones. Internet service providers maintain copies of huge swaths of the information that crosses their networks, tied to customer identifiers. Search engines maintain logs of searches that can be correlated to specific computers and usually the individuals that use them. Payment systems record each instance of commerce, and the time and place it occurred. The totality of these records are very, very revealing of people’s lives. They are a window onto each individual’s spiritual nature, feelings, and intellect. They reflect each American’s beliefs, thoughts, emotions, and sensations. They ought to be protected, as they are the modern iteration of our “papers and effects.”

This is a case to watch, as it will help determine whether or not your digital life is an open book to government investigators.