Monday, November 28, 2011

Smart Phones and Privacy

I want to follow up yet again on my series of posts on the historic case currently before the Supreme Court that could determine just how much privacy smart phone users can expect in the future. The case in question seeks to determine whether law enforcement should be required to attain a warrant BEFORE tracking a suspect (or alleged suspect) using GPS technology - which all smart phones happen to now have.

Before I get to the article delving into the smart phone aspect of this case, let me provide a brief summary of how we got here: The case in question involved police covertly tracking a suspected cocaine dealer's car using a GPS device for an extended period of time without getting a warrant. Thanks to this tracking, the suspect was initially convicted. But, a ruling by the D.C. Court (by Judge Ginsburg) of Appeals overturned that decision, arguing that the use of a secret GPS tracking device on the man’s vehicle for two months violated the Fourth Amendment’s protection against unreasonable searches and seizures. The idea being, no one wants to feel as if a government agent is following you wherever you go - be it a friend's house, a place of worship, or a therapist's office - and certainly innocent Americans shouldn't have to feel that way.

The problem was that two federal appellate courts had first upheld the use of GPS devices without warrants on the grounds that we have no expectation of privacy when we are in public places and that tracking technology merely makes public surveillance easier and more effective. Now this case is being heard by the Supreme Court.

Now, in some of my past posts I haven't focused on what this ruling could mean to ALL smart phone users, but instead, simply on the way the police tracked this particular suspect (see past posts for more detail). But let's be real, if law enforcement can argue, and win, the right to track someone's whereabouts without a warrant (or even probable cause) using a device implanted in the car, it goes to reason that this would be done in many cases through an individuals smart phone instead.

And of course, this isn't the only area in which privacy and smart phone technology are being debated. This year in California - to the dismay of civil liberties advo­cates - the Governor vetoed SB 914 (Leno). The legislation was a response to a recent California Supreme Court decision (People v. Diaz) allowing police to rummage through all of the private information on a smart phone as part of an arrest, including text mes­sages and e-mails. 

SB 914 would have clarified that an arrestee’s smart phone can only be accessed with a warrant, except in cir­cumstances where there is an immedi­ate threat to public safety or the arrest­ing officer. The bill acknowledged that accessing the detailed, private infor­mation contained on a smart phone is fundamentally different than searching an arrested person’s wallet, cigarettes or pockets. Senator Mark Leno has announced he will bring this legislation back next year. 

Here's more from a BBC News report entitled "How much privacy can smart phone users expect?": 

Millions of us happily invade our own privacy every day on Twitter and Facebook, sharing personal details with the world and broadcasting our location in a way previous generations would have found bizarre. Even those who shy away from social media and new technology in general are not immune. The most basic mobile phones are in constant contact with the nearest mast, sending information about the whereabouts of their users to phone companies, who can later hand that data over to the police, if requested.


There are signs that governments and law enforcement agencies around the world are taking advantage of this increasingly relaxed attitude towards privacy to step up surveillance of citizens. The case currently before the Supreme Court, US vs Jones, hinges on whether police officers should be allowed to plant GPS tracking devices on suspects' cars without a warrant…Lawyers for the Obama administration argued that Jones did not have a "legitimate expectation of privacy" - the standard legal test in the US for the past 45 years - because his car was in a public place.


But law enforcement officers no longer have to physically plant a bug on a suspect's car or person. In the US, they are increasingly using mobile phone tracking software. 

"Police officers can sit in the comfort of their own stations and use this technology to watch not just one person, but many people, over long periods of time," says Catherine Crump, an attorney for American Civil Liberties Union. This is far more invasive than traditional surveillance, she argues. "GPS tracking can actually be quite revealing about who a person is and what they value. It can show where a person goes to church, whether they are in therapy, whether they are an outpatient at a medical clinic, whether they go to a gun range."


But the London force is also reportedly using software that masquerades as a mobile phone network, allowing it to intercept communications and gather data about users in a targeted area, such as a demonstration.

Most civil liberties campaigners do not want the police banned from using new technology and accept that telecoms companies are "not the Gestapo", as Catherine Crump puts it. But, argues the ACLU lawyer: "People should not have to choose between using new technology, which is becoming increasingly commonplace and hard to live without, and giving up their privacy." 

Some believe the moment when that choice has to be made has arrived.

Click here to read more.

Again, my mind goes to social movements and protests and the government's insatiable desire to stifle dissent. These concerns are all the more disconcerting in light of the Occupy protests, and what we already know about how the Patriot Act was used to target peace/anti-war activists. 

No doubt in my mind we are indeed reaching a watershed moment - as highlighted by the current case before the Supreme Court. As technology advances, and becomes a more and more integral part of our lives, so too is the opportunity for authorities, both corporate and governmental, to use it in ways that violate our civil liberties.

Smart phones (and the information we have/use on social media like Facebook and Twitter) represent a clear line in the sand that must be government has the RIGHT to track our whereabouts OR access all the information now stored in this technology unless they have a warrant.

Tuesday, November 22, 2011

Surveillance State Ironies

All the incredible video documenting grotesque police abuse of peaceful protesters across the country provides a bit of irony: Just as we citizens are being increasingly watched by both commercial and governmental interests, so too can we now watch them - and use it to our advantage.

I don't need to go into too much detail regarding our burgeoning surveillance state and our loss of privacy in just about all areas of life. But, consider the bigger I wrote on this blog in the past, whether its the knowledge that everything we do on the internet is followed and stored, that we can be wiretapped for no reason and without a warrant or probable cause, that smart grid systems monitor our daily in home habits and actions, that our emails can be intercepted, that our naked bodies must be viewed at airports and stored, that our book purchases can be accessed (particularly if Google gets its way and everything goes electronic), that street corner cameras are watching our every move, and that RFID tags and GPS technology allow for the tracking of clothes, cars, and phones (and the list goes on)...what is certain is privacy itself is on life support in this country...and without privacy there is no freedom. I also fear how such a surveillance society stifles dissent and discourages grassroots political/social activism that challenges government and corporate power...something that we desperately need more of in this country, not less.

With that overview, I think its particularly fascinating, and ironic, that "we the people" are so effectively documenting, through smart phones and video cameras, the kinds of law enforcement abuses that we otherwise would not have been able to in the past - and thus would have remained unknown and unpunished.

With this in mind, I found an article by one of my favorite writers - Will Pitt of Truthout - that describes how this "Peoples Surveillance State" is being used, particularly in the documenting of the pepper spray incident at UC Davis. Pitt writes: 

In the aftermath of September 11, there was a big push to create a national surveillance system in the name of national security. Cameras were installed at traffic lights, ostensibly to catch people running red lights and stop signs, but those cameras came with a nifty side benefit: they recorded everyone within reach of the lens in their comings and goings. Cameras were installed at street corners, ostensibly to provide security against crime, but again, you were recorded wherever you went. Bank machines all come with security cameras, and those added to the ever-broadening web of national surveillance. Finally, almost every cell phone now comes with software that, so long as the thing is turned on, can track your every step by triangulating your position via GPS and the cell towers your phone signal bounces off of.

Those with a fealty to the quaint ideals of American civil liberties had, to no great surprise, a big problem with putting this system in place. Combine the concern over having millions of innocent people on camera with the fact that the Bush administration decided to spy on pretty much everyone by way of the NSA because no one had the guts to stop them, and what you had - and have to this day - is a pretty damned paranoid situation where everyone is being watched by The Man. Today, it is almost impossible to be anywhere in America without something tracking you. After this technology had been in place for a few years, it even became fodder for cop shows; half the episodes of "Law & Order: SVU" after 2008 involve catching criminals using this web of eyes and ears. As you can imagine, the bad guys almost never got away.

The basic idea behind setting up this incredibly invasive system, if you listen to its advocates, is that security is paramount in the aftermath of 9/11. There were plenty of people, after the Towers came down, who were very happy to surrender their liberties in the name of security, despite Benjamin Franklin's warning about deserving neither and losing both. Nowadays, the existence of such a system is established fact, leading to yet another bout of cognitive dissonance: those in favor of such a system a few years ago, because it meant the state was looking out for their safety, are now in all likelihood the same people railing against the state with guns on their hips at Tea Party rallies...but that's a brain cramp to be dealt with another day.

The advent of the Occupy movement, the length of time that movement has been able to hang fire, and the vast number of cities in which it is taking place, has led to an astonishingly violent reaction from the very state we are supposedly trusting to watch over our every move. There have been a dozen incidents of gruesome official violence against peaceful, non-violent protesters, including the near-murder of an Iraq war veteran by police in Oakland...violence the likes of which has not been seen in America since the dogs and firehoses days of Birmingham, Alabama.

Last Friday, students at UC Davis in California were subjected to an attack by police that beggars likeness. Here's the thing, though: this time, it's all on film. 

If you haven't seen it yet, what you're looking at is a dozen or so protesters seated with their heads down, arms linked, in peaceful non-violent resistance. An armored UC Davis police officer calmly pulls out a can of pepper spray the size of a fire extinguisher, shakes it up, and hoses these seated students down from one side to the other and then back again. Several of the students subjected to this attack required hospitalization, and there is an unconfirmed report that one of the protesters had a UC Davis cop shove the nozzle of his pepper spray canister into her mouth and then pulled the trigger.

As Pitt also mentions, the result of this video has been millions of hits, calls for the firing of the Chancellor and cops responsible, an investigation of the incident, and even greater resolve in students across the state and country to continue to speak out against ever increasing tuition costs and fee increases (among MANY legitimate complaints). Granted, we will see if justice is served, and we all know that video alone isn't enough to convict even the most glaringly abusive and illegal tactics. Nor does video guarantee real, systemic reforms to what is clearly an increasingly authoritarian, and militarized police force.

But certainly, it VASTLY improves the potential that justice will be realized - and reforms will be instituted. More than anything though, what this kind of peoples surveillance offers is the ability to educate the larger public about what is really going on in this country - particularly when you have the temerity to speak out against "the elites". This education opportunity, and how it might serve to motivate and inspire more people to get involved with their democracy and demand change (as well as make cops think twice about their actions) shouldn't be discounted.

If you want to see what I mean, check out Joshua Holland's Caught on "Camera: Ten Shockingly Violent Police Assault on Occupy Protesters"and consider whether it impacts your opinion on these matters.

Wednesday, November 16, 2011

The Need for Internet Privacy

I want to alert everyone to a fantastic op-ed in the San Diego Union Tribune by one of my most relied upon privacy experts - Beth Givens of the Privacy Rights Clearinghouse. But, before I share some choice clips, let me provide some backdrop (taken from what I've written on the blog in the there's no reason to reinvent the wheel) on why this has become such an important privacy debate. The fact is, there's been a virtual explosion in data collection, data analysis and use of behavioral marketing on the internet without the requisite privacy protections to go along with it.  Billions of dollars at stake, and your private information is the currency.

We know for instance, and they have been sued for it, companies like Google, Yahoo, Microsoft and other Internet companies track and profile users and then auction off ads targeted at individual consumers in the fractions of a second before a Web page loads.

That in itself, may not be all that threatening to most. But it raises some interesting questions: What kind of control should we have over our own data? And, what kind of tools should be available for us to protect it? What about ownership of our data? Should we be compensated for the billions of dollars being made by corporations from their tracking of us? And of course, what of the government's access to this new world of data storage?

The argument from privacy advocates has largely been that this massive and stealth data collection apparatus threatens user privacy and regulators should compel (not hope that) companies to obtain express consent from consumers before serving up "behavioral" ads based on their online history.

More generally, particularly on the issue of privacy on the Internet, the fact that we have next to no privacy standards as related to these technological innovations and trends is disturbing, and more than enough of a reason for legislation like California's SB 761 (Do Not Track).

The Do Not Track flag is a rather simple concept
that's already been built into Firefox and IE9. If users choose to turn on the option, every time they visit a web page the browser will send a message to the site, saying “do not track.”

SB 761 (Lowenthal) would offer consumers such a mechanism, something the bill's sponsor describe as "one of the most powerful tools available to protect consumers' privacy." The mechanism will allow anyone online to send Websites the message that they do not want their online activity monitored.

Certainly one strong point of the legislation is that it is in line with public opinion, as detailed by a poll by Consumer Watchdog last summer that found 80% of Americans support a Do Not Track option. In addition, a recent USA Today/Gallup poll found that most Americans are worried about their privacy and security when they use Facebook and Google.

The fact is, there's no longer any anonymity on the Web. The most personal information about people's online habits is collected and eventually bought and sold, often instantaneously and invisibly. Data collection practices have become a business in themselves, driven by profits at consumers' expense. The Wall Street Journal recently highlighted these practices—which included targeting children—in its groundbreaking series "What They Know."

Now let's get to Beth's thoughts on this subject:

Individuals are increasingly using the Internet as their primary information source, often seeking information on sensitive matters such as finances, health, personal relationships, divorce, sexuality, workplace difficulties and legal conflicts. But few individuals realize the extent to which they are being tracked by companies that create rich profiles of their web-browsing activities. The 2010 Wall Street Journal series, “What They Know,” reported that the nation’s top 50 websites installed an average of 64 pieces of tracking technology onto each visitor’s computer. Tracking tools go beyond the cookies many of us routinely delete. Some companies deploy “Flash cookies” or other “supercookies” that are not only extremely difficult to delete but can also be used to reinstall cookies that a user has removed.

Such data-gathering and profiling activities are largely invisible, except that they can result in the real-time display of behaviorally targeted ads. You might ask, “What’s the harm in receiving ads based on my web-surfing history?” In a legislative primer presented to members of Congress by 10 organizations, including ours, several potentially harmful effects of behavioral tracking and targeting were identified: (1) targeting economically distressed individuals with payday loans and subprime mortgages; (2) sending ads for bogus cures to individuals with serious medical conditions; (3) engaging in discriminatory pricing in which some people are offered products or services at higher prices than others; and (4) targeting children who lack the judgment capacity of adults. Further, profiles compiled originally for the ad industry may be sold to non-advertising third parties such as insurance companies.

Harms aside, let’s not forget, simply, the right to privacy. The definition of privacy that guides my organization’s work is the ability of individuals to control the use of their personal information. Everyone has a different comfort level regarding the collection and use of their personal information. We believe individuals’ choices must be respected, no questions asked.


However, studies show that robust profiles generated from anonymous data can be matched with other data sources, offline and online, to determine individuals’ identities. These days, the anonymity argument is largely a myth. Another myth is that young people are not concerned about privacy. These “digital natives” have not known a world without the Internet, so the argument goes, and they are not worried about their personal information being revealed online. However, a 2009 academic survey found there are no significant differences between young adults and older individuals regarding online privacy concerns. While some believe that in a generation or two, concerns about online privacy will vanish, we at the Privacy Rights Clearinghouse are not so quick to accept that argument.

In closing, effective online privacy protection requires a multipronged approach involving policymakers, industry, nonprofits and consumers. It must not be lost to bogus arguments and unfounded myths.

As I have also written before, its not by accident that we are told by the same interests that profit off our information that privacy is dead, and people don't care about it anymore, or that it will "kill business". Well, that's easy to say when you are the ones developing the complicated and difficult to find privacy settings consumers have to deal with - and profiting off our personal information without our consent.

More to the point is the simple, unavoidable fact that consumers should have MORE control, not less, over what information of ours is used, shared, and profited off. This basic principle is at the heart of the ACLU's DotRights campaign.

There remains an interesting dichotomy in all this: While people seem to "care" about privacy on one level, they tend to do very little to actually protect it. Which in my mind, makes easy to use, clear options to protect privacy so paramount. Once people are given such a choice, not only will more people choose to "not be tracked", I think more people will become more AWARE of just how all pervasive such monitoring of nearly everything we do has become."

Thursday, November 10, 2011

Cell Phone Providers Urged to Stop Collecting Data on Customer Movements

In light of the current Supreme Court case regarding the GPS tracking of a suspect by law enforcement, I thought the ACLU's letter to the CEO's of the nation's biggest cell phone providers asking that they "stop routinely collecting and storing data on their customers’ daily movements" was worth delving into today too.

The essential argument by privacy advocates, be it the tracking of a cell phone user, or tracking a suspect's vehicle, is that in either case you should not be more susceptible to government surveillance. The idea being, no one wants to feel as if a government agent is following you wherever you go - be it a friend's house, a place of worship, or a therapist's office - and certainly innocent Americans shouldn't have to feel that way. The other major distinction between such constant, all pervasive surveillance, from say, simply following a person or suspect, is just that: its constant, over time, and all pervasive...unlike a simple "tailing" of a person by authorities.

Before I share some of the ACLU letter, I want to go a little into the back story regarding why cell phone tracking should be a concern for all of us. Consider:

  • In just a 13-month period, Sprint received over 8 million demands for location information;  
  • Michigan police sought information about every mobile phone near the site of a planned labor protest;
  • Last spring, researchers revealed that iPhones were collecting and storing location information;
  • A few months ago the general counsel of the National Security Agency suggested to members of Congress that the NSA might have the authority to collect the location information of American citizens inside the U.S.
  • The FBI has used 'dragnet'-style warrantless cell phone tracking.
And then there's the Patriot Act. The fact remains that we still don’t know 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. 

With that, let's get to what the ACLU urged these CEO's to do (or NOT do):

The fact is our cell phone companies know more about where we are throughout the day than our closest friends. One of the byproducts of the way cell phones work – staying in constant touch with the nearest cell tower – is that our carriers can tell roughly where we are. And over time, that data is getting increasingly accurate.

But the major carriers – AT&TVerizonT-Mobile and Sprint – don’t just know where we are from moment to moment. They also retain detailed data about our location for extended periods of time, as we learned recently when we receivedthis document in response to our national public records request on how the authorities are using location data. The carriers also readily share the information they gather with government agencies and law enforcement…We pay them money, they provide us with phone and data services. Being tracked everywhere we go was never part of the bargain…

We don’t know exactly how precise the data the carriers retain is, or how they are using it. Often these days there is often an automatic, reflexive impulse to retain data – any and all. But it also seems that the companies are looking at how to monetize this information as they do with other information they gather.Verizon, for example, recently announced that it was selling location information about its customers. Although it is doing so only on an aggregate basis, that still represents a step closer to sharing our own individual movements, which the carriers are surely tempted to do.

Either way, if we roll over and accept this practice, then we’ll be accepting a world that totalitarian dictators can only dream of: an entire population carrying location tracking beacons that precisely record their every movement. This is not something we should be just taking in stride. It’s not something that we have to accept.

The best protection for privacy is for the carriers to not record our locations, even though the phone reveals them, unless we decide to give permission (and not through the fine print in some boilerplate click-through agreement). We should demand nothing less

Wednesday, November 9, 2011

Update on GPS Tracking Case Being Debated by Supreme Court

I want to follow up on my last post regarding the historic case before the Supreme Court - for which hearings began yesterday - as to whether law enforcement should be required to attain a warrant BEFORE tracking a suspect (or alleged suspect) using GPS technology.

I've written on this case, and issue, extensively on this blog, so I'm not going to rehash all that now (see last post for a decent summary). Suffice it to say, there is a WHOLE lot riding on this case. 

For today's purposes,  I'm just going to share some excerpts from a variety of news media that covered yesterday's hearings.

As NPR reported:

George Orwell's 1984 was very much on the minds of the Supreme Court on Tuesday, as the justices grappled with a question that pits the use of modern technology in law enforcement against individual privacy interests. At issue is a case testing whether police must obtain a warrant before putting a GPS tracking device on a car to monitor a suspect's movements.


Dreeben, in his argument, urged the court to stick to the line it has drawn in the past — no warrant is needed for surveillance of activities conducted on public roads. Chief Justice John Roberts, however, seemed skeptical about applying that rationale to new technologies, asking if the government could "put a GPS device on our cars and monitor us?" Dreeben responded that under the government's theory and the court's precedents, "the justices of this court, when driving on the streets, have no greater expectation of privacy" against a GPS device attached to the car "than they would if the FBI followed them around the clock."

Justice Stephen Breyer struck a more ominous tone, asserting that "if you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movements of every citizen in the United States," a scenario that "sounds like 1984." Discussion of Orwell's dystopic novel arose five times during the argument.

Justice Sonia Sotomayor asked Dreeban to explain the difference between the warrantless use of GPS devices and the general search authority that outraged the Founding Fathers and inspired the Fourth Amendment ban on searches without court authorization. Dreeben maintained, however, that putting a GPS device on a car is not a search. And he seemed to suggest that people have different expectations of privacy in an era of technological advances.

That is "too much for me," interjected Justice Elena Kagan, suggesting that people would think their privacy interests are violated by having a robotic device monitoring their movements 24 hours a day.

Read more here.

And this from the New York Times:

On Tuesday, Chief Justice John G. Roberts Jr. said there might be a constitutional difference between discrete pieces of data and the collection of vast amounts of information. “You’re talking about the difference between seeing the little tile and seeing a mosaic,” he said.

But Michael R. Dreeben, a deputy United States solicitor general, said there were no constitutional limits to the government’s ability to track people’s movements in public. He said a device surreptitiously attached to clothing would be permissible so long as it did not convey information from inside a home. He added that the police could track the movements of the justices’ cars without a warrant.

On hearing those statements, Justice Ruth Bader Ginsburg said the “endpoint” of the government’s argument was that “an electronic device, as long as it’s not used inside the house, is O.K.” Mr. Dreeben said that was correct regarding people’s movements in public. Other forms of monitoring — of conversations inside cars, say — were subject to different rules, he said. 

That means, Justice Stephen G. Breyer told Mr. Dreeben, that “if you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States.” And that, Justice Breyer said, “sounds like ‘1984.’ ”

Mr. Dreeben said, “The court should address the so-called ‘1984’ scenarios if they come to pass, rather than using this case as a vehicle for doing so.” But Justice Sonia Sotomayor indicated that the scenario might have already arrived. “It wouldn’t take that much of a budget, local budget, to place a GPS on every car in the nation,” she said.


Justices Samuel A. Alito Jr. and Antonin Scalia said such arbitrary limits should be imposed by legislatures rather than a court.

Read more here.

And finally, the Washington Post also chimed in:

It is allowed under the court’s own precedents, replied Deputy Solicitor General Michael R. Dreeben, and is no different than if the FBI “put its team of surveillance agents around the clock on any individual and follow that individual’s movements as they went around on the public streets.”

But to many of the justices, something did seem different. In an intense hour-long exchange in which the Big Brother of George Orwell’s novel “1984” was referenced six times, the justices wondered how the dizzying pace of technology has changed a person’s reasonable expectation of privacy.

The justices pondered a world in which satellites can zero in on an individual’s house, cameras record the faces at a crowded intersection and individuals instantly announce their every movement to the world on Facebook. They wondered about the government placing tracking devices in overcoats or on license plates.


The court is trying to apply the Constitution’s centuries-old protection against unreasonable searches and seizures at a time when devices such as a GPS can essentially do police officers’ work for them.But the justices also appeared conflicted about where to draw a constitutional line.

Stephen C. Leckar, representing Jones, said police should be required to persuade a judge to issue a warrant for each use of a GPS device. But the justices wondered how that squared with their previous rulings that no warrant is needed when the person being targeted was being monitored in public places.

“If there is no invasion of privacy for one day, there is no invasion of privacy for 100 days,” Justice Antonin Scalia said. 
Alito said Leckar had not shown that using a GPS device was any different from traditional police surveillance.

Obviously there's no way I can get a real "feel" for which way the court may rule. I'm ALWAYS deeply skeptical that the 4 extremists, and the one conservative, will ever rule in favor of the public interest when either corporate interests, or civil liberties, are concerned. Nonetheless, some of the questions posed by Roberts and Alito are at least modestly hopeful. Of course, the real wildcard, Justice Anthony Kennedy, was not quoted in any of the articles I've seen...and he remains the judge I'll be keeping my eye on.

I think today's editorial in the USA Today hit the nail on the head,  "The government's argument is that police don't need a warrant when they track people on public roads where they can be watched by cameras and other drivers — and where police could physically tail them without a warrant.

But of course, the technology changes everything. Even with speed cameras, red-light cameras and a squadron of pursuers, authorities would have a very hard time amassing a record of every place someone travels for 28 days.

The idea is, indeed, Orwellian, not to mention downright "creepy and un-American," to use the words of the chief justice of the 9th Circuit Court of Appeals. At a minimum, police should first have to convince a judge that there's probable cause to issue a search warrant — and use it properly.

The Founding Fathers, brilliant though they were, could not possibly have envisioned GPS technology. But they certainly understood the principles of personal freedom, and two centuries later those haven't changed a bit.

First and foremost, the Constitution they wrote guarantees individual rights against unnecessary government intrusion. Let's hope that when the Supreme Court rules in this case, it does the same.

With that, stay tuned.

Wednesday, November 2, 2011

Supreme Court to Hear GPS Tracking Case on Tuesday

I've been covering this case here for a long time now....and its finally about to reach its conclusion. Before I get to the USA Today article detailing the case and its Tuesday Supreme Court hearing, let me summarize some of what I've written on it in the past. 

The case in question involved police covertly tracking a suspected cocaine dealer's car using a GPS device for an extended period of time without getting a warrant. Thanks to this tracking, the suspect was initially convicted. But, a ruling by the D.C. Court (by Judge Ginsburg) of Appeals overturned that decision, arguing that the use of a secret GPS tracking device on the man’s vehicle for two months violated the Fourth Amendment’s protection against unreasonable searches and seizures. The idea being, no one wants to feel as if a government agent is following you wherever you go - be it a friend's house, a place of worship, or a therapist's office - and certainly innocent Americans shouldn't have to feel that way. 

The problem was that two federal appellate courts had first upheld the use of GPS devices without warrants on the grounds that we have no expectation of privacy when we are in public places and that tracking technology merely makes public surveillance easier and more effective. Now this case is scheduled to be heard by the Supreme Court.

Jeffrey Rosen, a law professor at George Washington University, made some important points on this case a few months back I think are worth repeating. He noted, "Judge Ginsburg realized that ubiquitous surveillance for a month is impossible, in practice, without technological enhancements like a GPS device, and that it is therefore qualitatively different than the more limited technologically enhanced public surveillance that the Supreme Court has upheld in the past (like using a beeper to help the police follow a car for a 100-mile trip)...If the court rejects his logic and sides with those who maintain that we have no expectation of privacy in our public movements, surveillance is likely to expand, radically transforming our experience of both public and virtual spaces.

For what’s at stake in the Supreme Court case is more than just the future of GPS tracking: there’s also online surveillance. Facebook, for example, announced in June that it was implementing face-recognition technology that scans all the photos in its database and automatically suggests identifying tags that match images of a user’s friends with their names. (After a public outcry, Facebook said that users could opt out of the tagging system.) With the help of this kind of photo tagging, law enforcement officials could post on Facebook a photo of, say, an anonymous antiwar protester and identify him.  


To preserve our right to some degree of anonymity in public, we can’t rely on the courts alone. Fortunately, 15 states have enacted laws imposing criminal and civil penalties for the use of electronic tracking devices in various forms and restricting their use without a warrant. And in June, Senator Ron Wyden, Democrat of Oregon, and Representative Jason Chaffetz, Republican of Utah, introduced the Geolocation Privacy and Surveillance Act, which would provide federal protection against public surveillance.

Their act would require the government to get a warrant before acquiring the geolocational information of an American citizen or legal alien; create criminal penalties for secretly using an electronic device to track someone’s movements; and prohibit commercial service providers from sharing customers’ geolocational information without their consent — a necessary restriction at a time of increasing cellphone tracking by private companies.

Click here to read more 

As previously laid out in the article in Wired Magazine, "Repeated visits to a church, a gym, a bar, or a bookie tell a story not told by any single visit, as does one’s not visiting any of these places over the course of a month. The sequence of a person’s movements can reveal still more; a single trip to a gynecologist’s office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story."

So with that backdrop, here's the latest on the case and the upcoming hearing:

In a potentially groundbreaking case on high-tech tracking by police, the Supreme Court will decide whether constant surveillance is such an intrusion on people's lives that police need a warrant before attaching a GPS device to a person's car.

The case, to be heard Tuesday, tests law enforcement's use of the latest technology to fight crime as it raises the specter of a "Big Brother" government knowing one's every move. GPS tracking lets police engage in round-the-clock surveillance — without a person's knowledge — over a prolonged period that could seldom be matched by cops on a beat or other traditional observation. 

Global Positioning System receivers, originally developed for military use, rely on a constellation of satellites in fixed orbits. Receivers on the ground use satellite transmissions to calculate the latitude and longitude of a location. Data can be transmitted remotely to police computers and stored.


Solicitor General Verrilli is urging the high court to rely on its 1983 ruling in United States v. Knotts, which said the use of a beeper to track a suspect driving to a drug lab was not a search under the Fourth Amendment. Verrilli says the lower court hearing Jones' appeal wrongly abandoned a longstanding line between private information and information that is "exposed to the public," for example, on roadways.

The lower court said, however, that a month of detailed tracking could not be considered "public" in the usual sense because it was unlikely anyone would actually have observed all of Jones' travels. Verrilli counters that information does not become "less public" simply because it is collected with in a more sophisticated technology. 

The high court will also be looking at whether just the installation of the device violated Jones' rights. Justice Department lawyers say installing the GPS device was permitted because it didn't interfere with Jones' driving or take up any space inside the vehicle.

Stephen Leckar, representing Jones, tells the justices in his brief that unrestrained GPS monitoring has become "a grave threat to expressive and political association, as well as to the personal privacy and security of every individual in the country."

Its important to consider this case in the larger context of an increasingly unjust economic system (AND Judicial system) that's leading people, literally, to the streets in protest. We must, at all costs, now more than ever, stand firm against the ever encroaching and watchful eye of both government and corporate interests.

But don't just take my word for it, check out a recent post I did on the fact that $150 million of taxpayer money has gone to funding a government facility in lower Manhattan where Wall Street firm representatives have joined the New York Police Department to spy on  law-abiding citizens simply taking advantage of their First Amendment rights.

As Pam Martens wrote, "According to newly unearthed documents, the planning for this high tech facility on lower Broadway dates back six years. In correspondence from 2005 that rests quietly in the Securities and Exchange Commission’s archives, NYPD Commissioner Raymond Kelly promised Edward Forst, a  Goldman Sachs’ Executive Vice President at the time, that the NYPD “is committed to the development and implementation of a comprehensive security plan for Lower Manhattan . . . One component of the plan will be a centralized coordination center that will provide space for full-time, on site representation from Goldman Sachs and other stakeholders.”

And then there's Naomi Wolfe, who was recently arrested for peacefully protesting herself, making another critical point, writing, "America is waking up to what was built while it slept: Private companies have hired away its police (JPMorgan Chase gave $4.6m to the New York City Police Foundation); the federal Department of Homeland Security has given small municipal police forces military-grade weapons systems; citizens' rights to freedom of speech and assembly have been stealthily undermined by opaque permit requirements."

Clearly, this dispute, particularly because it deals with technology that is becoming increasingly ubiquitous (i.e. smartphones, vehicles), will have an enormous impact on future fights over police tactics and our 4th Amendment rights. 

Perhaps most persuasive was Judge Ginsburg herself in her decision to overrule the appellate court decision, stating,  "A single trip to a gynecologist's office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story...A person who knows all of another's travels can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups -- and not just one such fact about a person, but all such facts."

Let's also remember, back in 2009 we learned that Sprint received 8 million law enforcement requests for GPS location data in just one year. While that issue is slightly different than the one headed to the Supreme Court (it was based on putting a GPS tracking device in the suspects car, rather than tracking the cell phone), the general concerns are applicable: Tracking citizens without a warrant (or even probably cause!). We know these GPS chips can locate a person to within about 30 feet. They're also able to gather less exact location data by tracing mobile phone signals as they ping off cell towers. 

The ACLU’s Catherine Crump recently provided one more argument for why the government should not win this case, stating, "What’s at stake in the case is not whether it’s OK for the government to track the locations of cell phones; we agree that cell-phone tracking is lawful and appropriate in certain situations. The question is whether the government should first have to show that it has good reason to think such tracking will turn up evidence of a crime. We believe it should. This case is not about protecting criminals. It’s about protecting innocent people from unjustified violations of their privacy."

And now we await the decision from a Supreme Court that consistently rules in favor of corporations and a more powerful national security state...and nearly always against the interests of the public good. As usual, all eyes will be on Anthony Kennedy.