Can You See Me Now?

The intrusions on our privacy rights sometimes seem boundless. As someone who is a private person by nature, I value the right to be free of government intrusion into my private affairs as much as possible.

In my daily life, I try to guard my personal information as much as I reasonably can. For example, I generally decline to provide telephone numbers or other similar information that is routinely requested at check-out counters. In fact, I don't even have the various "super saver" cards that grocery stores and retail merchants give out, because I don't want anyone else tracking my purchases. I am extremely careful about providing my social security number and have questioned the need for that information on various forms.

Unfortunately, many of the basic protections that were part of our fabric have been shredded by the Bush Administration's continual assault on our heretofore inviolate constitutionally protected rights.

Now that we are hooked on the darn things, the latest affront is to use our cell phones as a tracking device for the government to monitor us where ever we might be. I'm a bit like Xsociate, who observes at the All Spin Zone, Can You Track Me Now?:

As someone who is pretty tech savvy, I’m well aware that any device like cellphones that are designed to connect to any sort of global network can in turn be used to track ones whereabouts. But your average Joe Q. Public might not understand or comprehend this. Further still, laws governing the use of such tracking technology are still very vague and ambiguous.

The technology may be new, but the 4th Amendment has been with us for awhile. The 4th Amendment -- that quaint remnant of the good old days when freedom meant freedom from government spying, has been battered and bruised by the Bushies. The Washington Post reports in Cellphone Tracking Powers on Request:

Federal officials are routinely asking courts to order cellphone companies to furnish real-time tracking data so they can pinpoint the whereabouts of drug traffickers, fugitives and other criminal suspects, according to judges and industry lawyers.

In some cases, judges have granted the requests without requiring the government to demonstrate that there is probable cause to believe that a crime is taking place or that the inquiry will yield evidence of a crime. Privacy advocates fear such a practice may expose average Americans to a new level of government scrutiny of their daily lives.

As The Carpetbagger Report notes, Bush admin gets cellphone-tracking powers — without probable cause :

We’ve learned quite a bit the last few years about the Bush administration tapping Americans’ phones. And reading their emails. And accessing private information, including medical and library records.

But we didn’t know cellphone-tracking powers were on the list, too.

How true. In this case, even the Justice Department recommends seeking probable cause warrants. The issue apparently surfaced because a federal judge (in Texas, no less) finally decided that the abuse was sufficiently egregious. As the Post notes:

In a stinging opinion this month, a federal judge in Texas denied a request by a Drug Enforcement Administration agent for data that would identify a drug trafficker's phone location by using the carrier's E911 tracking capability. E911 tracking systems read signals sent to satellites from a phone's Global Positioning System (GPS) chip or triangulated radio signals sent from phones to cell towers. Magistrate Judge Brian L. Owsley, of the Corpus Christi division of the Southern District of Texas, said the agent's affidavit failed to focus on "specifics necessary to establish probable cause, such as relevant dates, names and places."

Owsley decided to publish his opinion, which explained that the agent failed to provide "sufficient specific information to support the assertion" that the phone was being used in "criminal" activity. Instead, Owsley wrote, the agent simply alleged that the subject trafficked in narcotics and used the phone to do so. The agent stated that the DEA had " 'identified' or 'determined' certain matters," Owsley wrote, but "these identifications, determinations or revelations are not facts, but simply conclusions by the agency."

Instead of seeking warrants based on probable cause, some federal prosecutors are applying for orders based on a standard lower than probable cause derived from two statutes: the Stored Communications Act and the Pen Register Statute, according to judges and industry lawyers. The orders are typically issued by magistrate judges in U.S. district courts, who often handle applications for search warrants.

Inexplicably, not all the judges have read the 4th Amendment lately. The Post article provides:

Since 2005, federal magistrate judges in at least 17 cases have denied federal requests for the less-precise cellphone tracking data absent a demonstration of probable cause that a crime is being committed. Some went out of their way to issue published opinions in these otherwise sealed cases.

"Permitting surreptitious conversion of a cellphone into a tracking device without probable cause raises serious Fourth Amendment concerns especially when the phone is in a house or other place where privacy is reasonably expected," said Judge Stephen William Smith of the Southern District of Texas, whose 2005 opinion on the matter was among the first published.

But judges in a majority of districts have ruled otherwise on this issue, Boyd said. Shortly after Smith issued his decision, a magistrate judge in the same district approved a federal request for cell-tower data without requiring probable cause. And in December 2005, Magistrate Judge Gabriel W. Gorenstein of the Southern District of New York, approving a request for cell-site data, wrote that because the government did not install the "tracking device" and the user chose to carry the phone and permit transmission of its information to a carrier, no warrant was needed.

And, unless the courts step in, the issue isn't going to be going away anytime soon. We all know Congress isn't going to do anything anytime soon (or is it, ever?):

The trend's secrecy is troubling, privacy advocates said. No government body tracks the number of cellphone location orders sought or obtained. Congressional oversight in this area is lacking, they said. And precise location data will be easier to get if the Federal Communication Commission adopts a Justice Department proposal to make the most detailed GPS data available automatically.

This development was troublesome enough, but the another bit of news added another worry -- our cars are also spying on us now. A follow up article in the Inquirer about a multi-car accident on the Schuylkill Expressway in the Philly suburbs made matters even worse. In a piece entitled, Car's 'black box' and what it tells, it was revealed:

As she barreled her new Chevrolet Tahoe through construction signs and down the shoulder of the Schuylkill Expressway, police say, Brenda Jensen carried more than a bellyful of amphetamines.

Inside her 2008 SUV was a device known as an EDR, an "event data recorder," a small, carmaker-installed computer that captures information such as speed, braking and seat-belt use during a crash.

Jensen may not have even known it was there. Now, the device could be a witness against her - and potentially, as the use of EDRs grows, against anyone involved in a serious accident.

These ever-evolving machines are becoming standard equipment on new cars - an invaluable tool to law enforcement authorities, insurers and safety researchers, an increasing torment to lawyers and privacy advocates who see the boxes as silent police officers, always along for the ride.

Under current laws, auto manufacturers are not required to tell people whether their car has an EDR, which is similar to the "black box" on an airplane.

I was flabbergasted that the car makers don't tell the car owners this information. I'm the one paying for the car, not the government or my insurance company. Yet, they know about it & I don't? Although, at this point, the likelihood is that most cars are equipped with the devices:

General Motors, Ford, Isuzu, Mazda, Mitsubishi, Subaru and Suzuki put them in all their vehicles. More than half of Toyotas have EDRs.

But many people have no idea if their particular model carries the device, said Paul Stephens of the Privacy Rights Clearinghouse in California. "It's very concerning that what you're doing in your vehicle is being monitored and you don't know about it," he said.

The typical device records speed, brake use, accelerator depression, seat-belt use, air-bag deployment - and the number of collisions in a crash, since one accident may involve multiple impacts.

"Who owns the data?" asked Alisa Herman-Liu, a Swarthmore nurse whose family cars include a Volkswagen Passat, which doesn't have an EDR. "Can it be subpoenaed?"

The answers: It depends, and yes. In states that have laws on the issue, the EDR and its data belong to the person who owns the vehicle. But not all states have laws. And police agencies can almost invariably gain access to it. That's why ownership and access are at the forefront of the privacy debate.

For prosecutors, the machines have opened a new line of attack, enabling them to cite the black box as an impartial witness.

In 2005, a Florida court upheld the conviction of a man who crashed his Pontiac Grand Am into a car holding two teenagers, killing both. The EDR showed he was driving 103 m.p.h. just before the crash.

The defense argued that the data did not match other physical evidence in the case.

In fact, I tried to do a search on line to see if my Toyota Solara was equipped with an EDR, but I couldn't find anything that listed what automobiles have them. Oh, hell, what am I saying -- I'm sure The Red Menace does.

So, who does the 4th Amendment apply to these days anyway? Maybe it's the government, since they are pretty keen on maintaining secrecy to prevent the public from getting any information about what is being done for us or to us.

Tags: Civil Liberties, Commentary, Law, 4th Amendment, Constitution, spying, News