Wednesday, July 27, 2011

Is the Government Locational Tracking US Citizens Movements?

Is the government using cellular data to track Americans as they move around the U.S.?

That was the question posed to the Mathew Olsen - who is currently at the NSA and has been nominated to lead the National Counterterrorism Center - at his confirmation hearing Tuesday morning in the Senate Select Committee on Intelligence.

Now, one would expect, and certainly hope, that an immediate, forcefully delivered "no" came in response to that question. Unfortunately what we got instead was the acknowledgement that in fact, according to the general counsel of the National Security Agency, "There are certain circumstances where that authority may exist." Providing little more comfort, Olsen went on to say “it is a very complicated question” and that the intelligence community is working on a memo that will provide a better answer for the committee.

I addressed this concern, particularly as it relates to a provision of the Patriot Act, in my article "The Patriot Act and the Quiet Death of the US Bill of Rights". In it I wrote, "In other words, the precedent set by the Patriot Act appears to be serving to accelerate the rapid disintegration of civil liberties in this country.

Of equal concern is what we still don’t know about how the government might be using the Act, highlighted by recent statements made by US Senators regarding what they termed “secret Patriot Act provisions”. Senator Ron Wyden (D-OR), an outspoken critic of the recent reauthorization, stated, "When the American people find out how their government has secretly interpreted the Patriot Act they will be stunned and they will be angry." As a member of the Senate Intelligence Committee Wyden is in a position to know, as he receives classified briefings from the executive branch. 

In recent years, three other current and former members of the US Senate - Mark Udall (D-CO), Dick Durbin (D-IL), and Russ Feingold (D-WI) - have provided similar warnings. We can't be sure what these senators are referring to, but the evidence suggests, and some assert, that the current administration is using Section 215 of the Patriot Act - a provision that gives the government access to "business records" - as the legal basis for the large-scale collection of cell phone location records. 

The fact that in 2009 Sprint disclosed that law enforcement made 8 million requests in 2008 alone for its customer’s cell phone GPS data for purposes of locational tracking should only add to these legitimate privacy concerns

And that's not all. Back in 2009, the Washington Post reported that while serving as a U.S. attorney during the Bush administration, Christopher Christie tracked the whereabouts of citizens through their cell phones without warrants. The ACLU obtained these documents from the Justice Department in an ongoing lawsuit over cell phone tracking. While the documents reveal 79 such cases on or after Sept. 12, 2001, they do not specify how many of the applications were made during Christie's tenure.

Tracking without a warrant disregards an internal U.S. Justice Department recommendation that prosecutors obtain probable cause warrants before gathering location data from cell phones. Of the cases in which probable cause wasn't established, documents showed 19 allowed the most precise tracking available. Those cases occurred after the November 2007 Justice Department recommendation that prosecutors seek warrants.

So we know this has gone on before. Perhaps that's why Senators Wyden and Udall recently introduced an amendment to the Patriot Act (rejected) calling upon the Attorney General to publish a report in the Federal Register that details, without describing specific surveillance programs, the Department's "legal interpretations and analysis necessary to understand the United States Government's official interpretation of" FISA (Because Section 215 of the PATRIOT Act modified FISA, this may be aimed in part at clarifying the reach of Section 215.)

Wyden is also currently working on legislation that could become part of the chamber’s larger effort to set new rules for how and when federal law enforcement can access consumers’ location data. In fact, these Senators have been unusually focused on pushing for tighter rules on when, and under what circumstances, can the government track an individuals cell phone.

Of course all efforts to amend this provision and make the information public has been met by both the Obama and Bush administrations with fierce opposition, and classified briefings...meaning members those who are briefed are constrained from fully voicing their concerns, which make these Senators efforts and cryptic warnings all the more disturbing.
This is why these latest revelations, and Olsen's testimony, is so interesting...and telling.

For more on these hearings and the Olsen testimony check out this video:

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