Digital Surveillance Efforts Continue

Law-enforcement attempts to monitor cell phone use and other digital information continue. In one recent case, police tried to get a cell phone user's billing information without a warrant. A court said the information would improperly give police the ability to locate the cell phone user.

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From NPR News, this is ALL THINGS CONSIDERED. I'm Michele Norris.

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By the end of this year, federal law says many cell phone companies must have the ability to report the location of most callers to within 50 meters. That requirement is meant to aid first responders looking for 911 callers. But tracking information is also proving useful to law enforcement in criminal investigations. Now civil liberties groups are hoping to limit access to that data. As NPR's Larry Abramson reports, they're taking heart from two recent court rulings in their favor.

LARRY ABRAMSON reporting:

It's relatively difficult for law enforcement authorities to get court permission to listen to your phone conversations. On the other hand, getting access to the numbers you dial or those of people who dial you is fairly easy, according to Kevin Bankston with the Electronic Frontier Foundation.

Mr. KEVIN BANKSTON (Electronic Frontier Foundation): Because you or the people calling you were voluntarily exposing that information to the phone company with full knowledge that the phone company was going to see it and use it to connect your calls.

ABRAMSON: But it's not so easy to figure out the legal status of information that tells the cell phone company exactly where you are when you're calling. When cell phones are switched on, they regularly send out signals that give away their location. The government recently argued in a New York federal court that, quote, "users of cellular telephones understand that they are broadcasting a signal to their service provider so that it can locate them to complete their calls. Accordingly, users cannot reasonably expect that the location of the cellular antenna used to effect their calls will be kept secret from the service provider," unquote. The government argues that means the FBI should be able to see that information without showing that a crime is being committed. But in the New York case and in another in Texas, the judges disagreed and turned down the request. Kevin Bankston of the Electronic Frontier Foundation is happy these judges understood that location information is different from the numbers you dial.

Mr. BANKSTON: Because Congress has explicitly said it shouldn't be treated as such. The federal government will stretch the law as far as it can go and then much further.

ABRAMSON: But the Department of Justice says the FBI has been getting access to location information for years without showing probable cause that there's a crime being committed. Attorney John Curran used to work for the department. He says that judges only demand proof of probable cause when law enforcement is trying to get something that's truly private.

Mr. JOHN CURRAN (Attorney): Items in somebody's home, something that is held private and protected. Here we're talking about signals that you're sending to various companies so that they can route your call on. So I would say that the signaling devices certainly would not fall within any sort of reasonable expectation of privacy.

ABRAMSON: Legal scholars say the problem lies with Congress. Orin Kerr of George Washington University's Law School says Congress gave law enforcement clear guidelines for getting hold of certain kinds of communications data, but they left out this crucial area.

Mr. ORIN KERR (George Washington University Law School): And it's just unclear as to how that applies here. The government is saying, `Hey, we've got similar authorities. We think this is close enough that we should be able to get this extra authority,' and it's just not clear that that's the case.

ABRAMSON: This dispute comes as federal and local law enforcement officers are making increased use of cell phone tracking information. Homicide Detective Mike Bailey of the Pinellas County Sheriff's Department recalls how he used this data to trap a murder-for-hire suspect who'd come to Florida from Puerto Rico.

Detective MIKE BAILEY (Pinellas County Sheriff's Department): He was with some co-defendants. We also used their cell towers, and they were hitting off the same tower, talking at the same time to two different people from the same vehicle, and the route that they took actually matched it and you could plot it on a map, which is exactly what we did.

ABRAMSON: The value of this information means that Congress may have to get involved and declare just how much privacy cell phone users can expect. Larry Abramson, NPR News, Washington.

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