NEAL CONAN, host:
This is TALK OF THE NATION. I'm Neal Conan in Washington.
As Congress debates the renewal of the USA Patriot Act today, another discussion is percolating over the considerably less well-known law called the 1986 Stored Communications Act, a law that governs the use of cell phone data to track people's movements. Nearly 200 million Americans carry cell phones almost every day, almost everywhere, and often complain about their signals--too weak, too unreliable. Well, you may not realize that your phone is also a tracking device. It sends out signals that allow your phone company to know where it is. Phone companies are looking into marketing that capability to, for example, parents who may want to track their kids. But they also provide that information to law enforcement when they're presented with a court order. Until recently, that was relatively easy, but in the past few months three federal magistrate judges in Maryland, New York and Texas ruled that prosecutors had to show probable cause, the same high standard they would need for a search warrant. Privacy advocates welcomed those rulings; prosecutors and police worry that they could make it difficult to employ a tactic that has been very useful.
If you have questions about when or how you can be tracked through your cell phone or about the standards that the government needs to get that information, our number here in Washington is (800) 989-8255. That's (800) 989-TALK. And our e-mail address is firstname.lastname@example.org.
Later in the program, the story of a State Department official and a modern-day Mata Hari, and what we can learn from the oldest Mayan mural.
But first, cell phones and surveillance. Matt Richtel is a technology correspondent for The New York Times. He joins us from the studios of our member station in San Francisco, KQED.
Nice to have you on TALK OF THE NATION.
Mr. MATT RICHTEL (The New York Times): Nice to be here, Neal.
CONAN: Why have these particular magistrate judges caused such an uproar?
Mr. RICHTEL: They've caused such an uproar because after--as you well said, after a number of years of the government being able to get permission from courts to obtain cell phone tracking information, these judges very recently in the last four months, three of them have set a higher barrier for the government to overcome in order to get that information. At one time that--the barrier was that the government needed to satisfy a legal standard, and I'm gonna read it here.
Mr. RICHTEL: It's--they needed to show specific and articulable facts that the material they're seeking was relevant and material to an ongoing investigation. Not insubstantial, but now the judges are saying--a handful of them--that the government must show probable cause that a crime has been or is being committed.
CONAN: Now that's the standard, again, that you need to get a search warrant, and it seems to me that the previous standard was the standard--similar to the standard that police often used to get phone records. I mean, your household phone records--in other words, who you called and how long the calls were, but not the content of the calls.
Mr. RICHTEL: Actually an intermediary standard between the one you're referring to and the content of the calls, which requires something called a super warrant.
Mr. RICHTEL: That is the highest standard the government must meet. And you asked why is this causing--why has this become an issue. Well, I think that the broader context is that courts are recognizing that Americans, most of us, are carrying devices that are at once wonderful communication devices, but also have the potential to let people know where we are at all times, and the courts, just as we as consumers, must figure out a balancing act between these two things.
CONAN: Hmm. And obviously the police have a real interest in this. They say if they're involved in a hostage situation or a crime is being committed, this is information they say, `We really can't wait for the cumbersome process of getting the equivalent to a search warrant.'
Mr. RICHTEL: Precisely. They would say a probable cause, which is a very--which is a very high legal standard, takes time and it takes energy and it takes resources, and in the event that they have a hostage situation, as you referred to, they would like to be able to get information immediately, promptly, without spending the time and resources. The privacy advocates counter that we need to set up in general a much higher bar, because while there may be some hostage situations, this could conceivably open the floodgates to other situations.
An analogy I would--is worth thinking about is that at one time, to track someone, particularly inside a private place, was a fairly invasive procedure. You had to put a bug in their home. You had to get permission to watch them in a--you know, in an invasive way. But not it's a little bit more of an outpatient procedure, if you will, to monitor someone because we carry that tracking device on us. The question is, what permission must the government have to turn on the spigot of information that comes from that device?
CONAN: Mm-hmm. If you'd like to join our conversation, our phone number is (800) 989-8255. That's (800) 989-TALK. And the e-mail address is email@example.com. And let's talk with Bill. Bill's calling us from Bear, Delaware.
BILL (Caller): Hi. Thank you for taking my call. Longtime listener, the first time I've ever called in.
CONAN: Well, thanks for that.
BILL: I can't use my full name because I work for a telecommunications company, and leading up--I'm glad to see this is finally public, because the government has been working to achieve much closer monitoring and much more real-time monitoring of this than anyone has been led to believe. They've been in meetings with engineers and managers at my company and I know others, trying to establish instant, real-time monitoring of any cell phone, so that they can just, from any computer screen at the government agency, see where any individual with a phone is going simply with the phone number.
CONAN: And would there be a firewall of some sort that says, `Insert court order here?'
BILL: No. They would just be able to type in the number.
Mr. RICHTEL: You know, one thing that certainly is--I--my reporting didn't bear that out or I didn't--I don't know about that, whether that's accurate or not, but I do know that the technology is permitting even more precise tracking. Now they rely on essentially triangulation of signals between the cell towers that our phones connect to.
BILL: That's correct.
Mr. RICHTEL: But ultimately there will be global positioning systems in all phones, and there already are in many phones, which presents the opportunity to do even more precise tracking.
BILL: Yeah, and that data scrolls through real systems in our country--at our company, rather, in real time, and that's where they want to focus. They want to be able to get right to that data stream.
CONAN: And another case, Bill, if you've got information about these meetings that you're talking about, I think if you just got in touch with Matt Richtel at The New York Times, he'd be happy to talk with you more privately.
BILL: Yeah. And they're also working on something else. What they're trying to do is to make smaller than cell phone devices that contain only the essential tracking components and are tracked through the cell phone companies.
CONAN: So that would be just a strict tracking device. But I guess, Matt Richtel, I'm not, you know, aware of the legal ramifications here, but that would be handled differently than a cell phone.
Mr. RICHTEL: Well--and I also want to point out--because we may appear to be piling on the government here--it does take resources and time and energy to track anyone using any device. So you know, in my conversations with former prosecutors and people involved in these cases, there is not, as of yet, any mass effort to do mass tracking, and I think it's worth noting that this debate happens each time there are technological advances, and the law has to catch up to them. So we should be careful to send the message this is not about, at this point, any sense of mass tracking of citizens.
CONAN: Bill, thanks very much for the call.
BILL: You're welcome. Thank you.
CONAN: OK. Bye-bye.
One of the former prosecutors that Matt Richtel spoke to for his piece which was, by the way, in last Saturday's edition of The New York Times, is Clifford Fishman, a law professor at Catholic University here in Washington, DC, a former New York City prosecutor, and he joins us by phone from his home in Maryland.
And it's nice to have you on the program.
Professor CLIFFORD FISHMAN (Catholic University): Thanks very much (unintelligible).
CONAN: And I'm wondering, talk to us about some of the utility of this technique of tracking these cell phones beyond the legal standard that the government's been able to get these warrants under, but obviously this could be very useful.
Prof. FISHMAN: It can be very useful in the typical, run-of-the-mill investigation. It can be crucial sometimes in a hostage or possibly a terrorist situation. Knowing where people are is--it can be crucial. It can be crucial both to gather information to lead to an ultimate prosecution, it can be crucial to be able to interdict and prevent the commission of specific crimes. Take an example. A police officer notices somebody who he knows is the head of the Hell's Angels chapter in the local community meeting with a major drug dealer. Obviously this is something the police want to pursue further. Was this a casual meeting? Was this something that's going on with some regularity? That's all we know at the beginning, that the leader of the Hell's Angels and a major drug dealer in town just kind of sat down and talked to each other for a few minutes on a street corner.
Clearly we'd want them to investigate what's going on. Is this some sort of union between the two being formed? Are the Hell's Angels supplying the drugs to the drug dealer or vice versa? Now at that point we certainly don't have probable cause to do anything. We don't have enough to get a search warrant. We don't have enough to get a wire tap. Certainly, though, we want to be able to continue to watch these two people and see if they meet again.
Well, we could do visual surveillance, and there's absolutely no legal requirement that the police have to satisfy to be able to physically sit out and watch them. The difficulty is that's hard, it takes a lot of manpower and it's difficult to conduct a physical surveillance without being noticed. So legitimately, the police might want to be able to use a more laid-back way, a less-direct way, of keeping track of where they are. And if, in fact, these two people that are the subjects of the investigation both carry cell phones, being able to monitor where those cell phones are taken and being able to determine that, in fact, on particular occasions these cell phones both seem to be within 50 or 100 yards of each other is gonna be circumstantial evidence they're continuing to meet.
CONAN: On the same--you pose that hypothetical. You could also pose hypotheticals where this tracking system could be subject to abuse.
Prof. FISHMAN: Oh, of course. But remember that the nature of the information that is currently obtainable from the result of this tracking doesn't track a person from room to room. It--as I understand it, it allows the police to maintain--with triangulation, they can get within 50 or 100 yards of where the particular cell phone user happens to be or where the particular cell phone happens to be. By the way--which is a standard which the Supreme Court held, you know, way back about 20 years ago does not require a search warrant or anything else.
Mr. RICHTEL: Clifford...
Prof. FISHMAN: As long as the information does not reveal what's going on inside a private premises, the use of tracking devices does not implicate the Fourth Amendment, according to the Supreme Court.
CONAN: And, Matt, I heard you trying to get in there...
Mr. RICHTEL: Yeah, I...
CONAN: ...and we're running out of time in the segment, so hold your question till we come back from the break, OK? All right. Matt Richtel is there at the studios if KQED in San Francisco. Clifford Fishman on the line with us from his home in Maryland, as we're continuing to discuss the use of cell phones as tracking devices by law enforcement. We're taking your calls as well: (800) 989-8255, (800) 989-TALK. Our e-mail address is firstname.lastname@example.org.
We'll be back after the break. I'm Neal Conan. It's TALK OF THE NATION from NPR News.
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CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington.
Millions of Americans carry cell phones. Many may not realize the convenient communication tool can also be a tracking device, and that the government, with a court order, can follow your cell phone around anywhere. We're talking about cell phone tracking today. Our guests are Matt Richtel of The New York Times and Clifford Fishman, a law professor at Catholic University here in Washington, DC, a former New York City prosecutor. If you'd like to join us, (800) 989-8255. Our e-mail address is email@example.com.
And, Matt, just before the break you wanted to ask Clifford a question.
Mr. RICHTEL: I did. Clifford, pardon me for interrupting.
Prof. FISHMAN: Not at all, Matt.
Mr. RICHTEL: My question is this: One of the checks against widespread use of surveillance in an analogue world was that it took time and resources to put a tracking device on someone, to follow someone, to listen to their phone conversations. In a digital world, what balance must we have against the possibility that, in theory at least, you could create huge databases of where someone has been and where they are going in real time without any real human interaction. Meaning, as the legislature considers what to do, as the courts consider what to do, there is a possibility that this takes less time and resources than it once did, and therefore the protections must be higher.
Prof. FISHMAN: Well, Matt, I think the scenario you portray is a realistic thing that we have to worry about. I'm not advocating that the police should always be able to do whatever they want to with these things with no checks, no balances and no oversight. What I'm pointing out is that at this particular time in the development of the technology, the information that the trail--that the cell phone tracking reveals is within the parameters of what the Supreme Court said does not constitute a search. That doesn't mean that's what the law should be. That's what the law is, though, and I think the fact that judges are beginning to look at this issue critically is useful, it's good. I think the legislature, ultimately, is the body that should make these very nuanced policy judgments and decisions, but in the absence of legislative action the courts understandably feel compelled to step in.
What I want to point out, though, is that the more difficult we make it for the police to use this technology, the greater the likelihood that some cases will not be made, some prosecutions will be unsuccessful, and God forbid some people will be killed or some terrorist acts might succeed because the government was not able to meet the higher standard that the judges are now requiring for this sort of surveillance.
CONAN: You could make that same argument, Clifford Fishman, about search warrants.
Prof. FISHMAN: Sure.
CONAN: If they were easier to get, we might have solved this case or somebody might be alive, we might have prevented that bomb.
Prof. FISHMAN: Absolutely. And what we're in engaged in now is the inevitable and invariable and never-ending trade-off between improving police efficiency, which increases their ability to protect us, at the cost of individual privacy and liberty, and here, as in throughout the entire spectrum of surveillance, the question is where to draw the line and how to draw the line.
Mr. RICHTEL: But I think it's worth pointing out that even though we face this question over and over again, there are some really fundamental differences between this technology and technological changes that have come before, notably that everything could be automated at some point. Our movements, our blips could appear on a screen with very little effort once the infrastructure's in place. Though in fairness to the prosecutors who have their viewpoint on this, families are also addressing this very same question internally because this very same technology soon--already permits overseas and soon will permit here parents to get a Web reading of where their children are based on where their children's cell phone are, and that same privacy protection debate will be undertaken in the home at dinner tables.
Prof. FISHMAN: Well, I can give you a more, to me, frightening scenario, that this information may also be publicly and commercially available as companies who can basically hook into the cell phone technology can commercially sell to marketers information about people's whereabouts.
Mr. RICHTEL: So you...
Prof. FISHMAN: As an aside. I'm much more afraid of invasions of privacy by private industry than I am from the government, but that's a topic, I assume, for another conversation.
CONAN: And we should also point out that this same technology, if you call 911, allows emergency police services to find you faster, so...
Prof. FISHMAN: Yeah.
CONAN: ...there's that aspect of it as well.
Prof. FISHMAN: I will agree with Matt to this extent. I don't--I would not be in favor of allowing the agents to use a triggerfish technology, the kind that Bill, one of your callers, was talking about...
Prof. FISHMAN: ...to automatically allow, you know, the FBI to ring up any cell phone in the company and paint a precise location of it. I would certainly want, at the very least, that a court order is required with an emergency provision that allows surveillance before a court order in particular circumstances, so that a federal agent has to go on record saying at the very least, you know, `We have specific information which suggests that finding out where this particular cell phone is right--at various times,' will be very useful to an investigation. That way, at least there is a record made of each time a particular phone is targeted for surveillance. These records could be checked, Congress could require annual reports by the Justice Department as to how often this was used and what sort of circumstances. And so some sort of oversight definitely should be maintained.
CONAN: Well, let's get some listeners in on the conversation. Let's talk with Andy, Andy calling us from Santa Cruz in California.
ANDY (Caller): Hello, Neal.
CONAN: Hi, Andy.
ANDY: My cell phone has a feature, it's called location indicator, and I can actually turn it on or off, and I'm wondering, if it's off--except for 911 calls--they can actually trace where I'm at. How many people are aware of this feature, and if it's kind of redundant if this network can still detect my location.
CONAN: Matt Richtel?
Mr. RICHTEL: I don't know about that feature per se. I'm wondering if that refers to some sort of navigation service. But I think any time you're hooked into the network, by definition your carrier knows where you are. Think of it this way. They need to know if you're roaming in order to bill you extra, so they have a vested interest in all mo--at every moment in knowing what cell phone tower you're connected to. I'm not sure you could tell them you could turn that off and say, `Yes, I may be in the back roads of Wisconsin right now, but I'm not--but my phone doesn't know I'm roaming.' I don't think they'd allow you to do that.
ANDY: Yeah. Thank you.
CONAN: Andy, good luck. Bye-bye.
Let's go with Todd, and Todd's calling us from Oklahoma City. Hello, Todd. Are you there?
Mr. TODD RASMUSSEN(ph) (Caller): Hello. Yeah. Hi, Neal.
CONAN: Go ahead. You're on the air.
Mr. RASMUSSEN: Todd Rasmussen from Oklahoma City.
Mr. RASMUSSEN: Yesterday we had a citywide election that was heavily promoted to add 50 cents to everyone's cell phone bill to create a system to track cell phone calls to 911. And frankly, I don't know if--or not. But I wanted to know if that same system, once it's in place, can be used by law enforcement or anybody else wanted to use it for whatever else they might want to use it for.
CONAN: Well, Matt Richtel, if they can locate your phone, they can locate your phone.
Mr. RICHTEL: Yeah. I think that technology already exists. I'm not sure the law would affect that one way or the other.
Prof. FISHMAN: Yeah, if the technology exists, the capacity is there, it's a question of what the law allows, who the law allows to use the information or the technology and under what circumstances.
Mr. RICHTEL: And it's worth noting that while three magistrate judges have asked the government to hit a higher standard, those--and, Clifford, correct me if I'm wrong--those are not binding to any other magistrate. What it does suggest, though, since magistrates often, in these cases, don't submit longer opinions and in these cases they have, it suggests that they put a lot of thought into it, and other magistrates will probably be aware of these opinions and read them, but they're not binding in any way. So other courts may decide otherwise.
Prof. FISHMAN: That's correct, Matt, and in fact, I'm surprised that a judge has not already written an opinion disagreeing with the three. But certainly the fact the three judges have now issued opinions which have been publicized requiring probable cause has grabbed everybody's notice, not just ours on this radio program. You can expect that other judges at least are going to be thinking about whether or not to apply the probable cause standard when the government comes to them with an application like this.
CONAN: And, Mr. Fishman, let me wind up with you by asking if you think Congress should readdress this question and come up with--obviously if the law that addresses this was written in 1986, and I think there's an amendment passed in 1984, things have changed a lot since then.
Prof. FISHMAN: Oh, clearly the time is well past that Congress should have taken another good, hard look at the entire issue of surveillance technology, both in terms of when the government can use it and also in terms of when private industry should be allowed to use surveillance technology information. Congress has a wide range priorities, obviously, but this one ought to be fairly high.
CONAN: Thank you very much for being with us today, Clifford Fishman.
Prof. FISHMAN: My pleasure.
CONAN: Clifford Fishman was a former prosecutor in New York City. He's now a law professor at Catholic University here in Washington, DC. He joined us by phone from his home in Maryland.
And let's bring another voice on, someone also quoted in Matt Richtel's piece on Saturday. This is Marc Rotenberg, the president of the Electronic Privacy Information Center. He joins us now from his office here in Washington, DC.
Good to have you on the program again.
Mr. MARC ROTENBERG (Electronic Privacy Information Center): Hello, Neal.
CONAN: I wonder, this is an issue that has come up with this new technology. Why is it so important to protect privacy if there could be these emergency type situations that we've been talking about, that prosecutors have been talking about?
Mr. ROTENBERG: Well, I think we understand that there are circumstances under which law enforcement agents may need to get access to location information. The debate is really about what legal standard should apply. I think the view of the three magistrates who have issued opinions on this, as well as the view of many people, of course, is that this is not information that should be that easy to get to. It's private information, it's where someone happens to be at a point in time, and if the government needs access to the information, they should have a good reason. The traditional standard in the Fourth Amendment is probable cause, which is a higher standard than the standard that the police have been trying to use.
CONAN: I've also heard arguments that since these are your personal, private phones and you take them into places like your home or your office, there would be an expectation of privacy.
Mr. ROTENBERG: Well, that's a very interesting issue. It turns in part on what the actual capability is to pinpoint someone's location. If it is the case that the accuracy is 50 or 100 yards, we couldn't say for certain that someone was within a home, but we might reasonably expect over time that as this tracking technology improves, that capability will become available, and at that point I don't think there'd be much doubt that under a traditional Fourth Amendment analysis, if the government was trying to seek information that would reveal someone's presence in a home, that would certainly be covered under the Fourth Amendment.
CONAN: Let's get another caller in on the line. This is Gail, Gail with us from Phoenix, Arizona.
Ms. GAIL THACKERY (Caller): Hi. This is Gail.
Ms. THACKERY: I'm with the Arizona Attorney General's Office, and we do do wire taps under court supervision, and one of the reasons--I've been arguing with Marc for years over this. Hi, Marc.
Mr. ROTENBERG: That must be Gail Thackery.
Ms. THACKERY: Yes. One of the reasons that the standard is less than probable cause for this technology, as Marc well knows, is that somewhere the police have to begin an investigation, and for everybody's privacy sake, you want them to have a graduated series of--starting with the least intrusive method of investigating a suspicious activity, and then graduate, under court supervision, to ever-more intrusive. You don't want them to have--if everything is probable cause, the police can never start. They have to build an investigation to the point where they get probable cause. Getting...
Mr. ROTENBERG: Can I...
Ms. THACKERY: Getting an order for limited information about cell mapping, as this is called, is much less intrusive than a wire tap or actually a search warrant or even following someone physically around for days. We had bank robbers here a few years ago, and the only link we had to them was a cell phone, and that's how they were finally caught. They were becoming progressively more and more violent, and it was real-time cell mapping that allowed us to catch them.
CONAN: We're talking about cell phone technology and surveillance. You're listening to TALK OF THE NATION from NPR News.
And, Matt Richtel, we heard you trying to get in again.
Mr. RICHTEL: Yes. I'm sorry. I've done it again...
CONAN: That's all right. Go ahead.
Mr. RICHTEL: ...but it's a good point, and I wanted to ask Marc to address this notion that people don't use landline phones anymore, for the most part. They don't use pay phones. Criminals may have a cell phone and be on the move constantly. To the caller's point, do we need a place to start an investigation in a digital era where the phones and the (technical difficulties) on the move?
Mr. ROTENBERG: I think it's certainly a reasonable point that Gail is making and that you're asking about, Matt, and traditionally, it is the case that the police could get access, for example, to telephone numbers dialed under the PEN Register or tap and trace provisions of the Federal Wiretap Act, which are basically--that's the lower standard that they're trying to apply now to the cell phone, tracking information. So there's certainly something to be said for that graduated approach, but I think we've also learned over time, by looking at the use of those provisions, that there's very little oversight. It really opens the door to the kind of fishing expeditions that the Fourth Amendment and the federal wiretap law tries to discourage. And as this technology makes so much information available in this digital communications network, you really do get the sense that these investigations would basically become unbounded.
So my sense is that clearly, law enforcement is going to have new tracking techniques going forward as technology advances, but those techniques need to be counterbalanced by means of oversight, and that's about the role of the courts, it's about public reporting, and it's about the kind of accountability that really is the cornerstone of the Fourth Amendment.
CONAN: And, Gail...
Ms. THACKERY: I'd like to point out that Congress already made this decision, and those three judges have essentially overruled the decision of our national Legislature. Marc made those same arguments in 1994, and in 1994, Congress said, `OK, we're going to make this standard a little tougher than a PEN Register,' which is just who did you call, or a tap and trace, which is who called you. `We're going to make it a little more tough. We're going to make the judge ask you, or you tell the judge in your affidavit: Why is this relevant?' Just don't say it. Explain it to the court. And if the court agrees with you, then the court orders it. But Congress understood that this is exactly the kind of minimally intrusive investigative technique that police use to develop probable cause, if there is reason to go forward and become more intrusive.
Mr. ROTENBERG: You know, Gail, I just have to disagree with you. I don't think people would think of this as being minimally intrusive. It clearly reveals more information than the telephone numbers dialed. And as you know also, since the 1994 act, Congress also passed in 1999 the E911 Act, and that's the law that mandated the telephone companies to make the location information available for the emergency 911 service, and there was a great deal of concern in Congress in 1999 following the law that you're referring to earlier about the protection of privacy, and there was explicit safeguards put into that act to try to give consumers better protections. We actually went to the FCC afterward and asked the FCC to go even further, because we're aware that people are very much concerned about this issue.
Mr. RICHTEL: I would also add that the thing that Gail states as fact here, that Congress addressed this, is very much in question, according to a number of people that I spoke to, including Mr. Fischman, a former prosecutor, so I'm not sure that it's a matter of fact that Congress had this intent. I think it's very much a matter of debate right now.
Ms. THACKERY: ...(Unintelligible) US Code 2703 specifically changed the standard and made it this intermediate level between the PEN Register standard and the probable cause search warrant standard, and it was exactly the cell phone situation that I recall Marc himself raising as being the kind of digital information that various widgets collect that needed a higher level of scrutiny from the court.
CONAN: Gail, I...
Mr. RICHTEL: That is...
CONAN: Gail, thank you very much for that. We appreciate it. This is going to be a subject that will certainly be interpreted by more courts in the future, but we thank you very much for your call today. Thank you.
We've got a couple of other interesting calls on--questions on this, so we're going to ask, can you guys stay over to the other side of the break?
Mr. ROTENBERG: Sure.
CONAN: All right. Matt Richtel of The New York Times, technology correspondent in San Francisco, and Marc Rotenberg, president of the Electronic Privacy Information Center. We're talking about cell phone and surveillance. When we come back from a break, also, a State Department official reveals his relationship with a Taiwanese spy. And the oldest Mayan mural. Details on both those stories after a break.
It's the TALK OF THE NATION from NPR News.
CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington.
And here are the headlines from a couple of the other stories we're following here today at NPR News. Earlier today, President Bush gave the last in a series of speeches on the war in Iraq. The president accepted responsibility for the decision to go to war, despite faulty intelligence. However, he said the decision to oust Saddam Hussein was still the right one.
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Right now, we're wrapping up our conversation with Matt Richtel of The New York Times and Marc Rotenberg of the Electronic Privacy Information Center. We're discussing cell phones and surveillance.
Let's get another caller on the line. This is Dan. Dan calling us from Grand Rapids, Michigan.
DAN (Caller): Oh, hey, thanks for taking my call.
DAN: I have a perspective on this that I think perhaps people haven't thought of in its full entirety. When you consider the use of cell phone tracking for surveillance as--what I would consider myself to be a law-abiding citizen, I'm having a very difficult time envisioning how that could invade my privacy in any way that I wouldn't want. But I can think of dozens and dozens of ways why--how using that tracking information could benefit me, such as in emergency EMS situations, you know, you're lost, you know, tracking where my kids are. And I can't help but also think how real-time use would be incredibly beneficial. There's been a lot of media attention about, for instance, high-speed chases, whether that's good. Could the police back off from a high-speed chase? You get the license plate. You get the name. You get the phone number. You lock in with a real-time tracking situation. You back off. I envision that as a situation where you could save lives that potentially could be lost in crashes due to high-speed chases.
CONAN: Well, you've given a couple of examples. Marc Rotenberg.
DAN: Well, there's one other important concept, though; is I think that the people--the natural reaction is that, oh, well, this would be an invasion of my privacy. But they haven't necessarily thought about how it could potentially benefit them. And the comparison I'd like to make is HIPAA, the health information privacy act, which was passed some years ago, supposedly to improve people's privacy with their medical records. The natural reaction, of course, is, well, yes, we should protect those medical records because that's an invasion of privacy. But I work in an emergency department, and the net effect of that law has been, in my opinion, negative because...
CONAN: Well, Dan, I think you're going to have to accept, for this conversation's purposes, that HIPAA and its effects are another conversation, but getting back to your point about cell phone surveillance, can I put that to Marc Rotenberg?
CONAN: OK, go ahead.
Mr. ROTENBERG: Sure. I mean, I think, you know, Dan raises reasonable example,s but at the same time, it's important to understand that privacy laws aren't intended to prohibit useful activity or choices that people might wish to pursue. What privacy laws typically do is try to maximize the benefits associated with new technologies, while minimizing the risks and ensuring some safeguards where there are legal concerns about the use of personal information. And there's a particular reason with regard to law enforcement use of new technologies for tracking that we have these laws, and that is because we have a Fourth Amendment in the United States that basically says we don't want to have a country where all information that might be obtained about individuals is simply passed to the government and used for whatever purpose they wish to make of it. We would rather have procedures that ensure that when information is collected, it's based on reason to believe, or more precisely, probable cause that someone is doing something that poses a threat to public safety or may be a crime.
And so you see, privacy laws really follow from that premise. They say, for example, if the government is going to need the information to investigate a crime, go to the judge, get the order, and you can get the information. And I'm concerned about Dan's approach to all this, because it really says, in effect, you know, what's ever out there should be freely available and used by the government for whatever purpose they might choose.
DAN: Well, that's not exactly my opinion. You know, I don't think that whatever information out there should be freely available. I think that, for instance, there's been a lot of loss of rights involved with enactment of the Patriot Act that I definitely do not agree with. But certain information I just have a hard time envisioning what a law-abiding citizen would have to lose from tracking their position. It...
CONAN: Well, could you...
Mr. RICHTEL: Can I take a crack at that?
CONAN: Go ahead, Matt.
Mr. RICHTEL: You know, it's--Dan, it's like where you go is a kind of freedom of expression. If you consort with a certain political group, with a certain, you know, you name it in a McCarthy era, it was--you could have gotten yourself into enormous trouble visiting a certain meeting. We need to guard against a time when your movements signify who you are, which they very much do, and you're asking for specific examples. On the whole, where most people go is fairly innocuous. But our laws are meant to protect the minority who might get themselves into trouble in a situation where we look down upon a certain activity. That's what privacy is meant to guard against. So where you go becomes who you are.
DAN: All right.
CONAN: Dan, thanks very much for the call. I'm afraid we're going to have to cut it off here.
CONAN: Appreciate it.
DAN: Thank you.
CONAN: Dan calling us from Grand Rapids. And I'd like to thank our guests who are staying a little longer than they expected. Matt Richtel, a technology correspondent for The New York Times, who's with us from the studios of member station KQED in San Francisco. Thanks very much.
Mr. RICHTEL: Thank you.
CONAN: And Marc Rotenberg, president of the Electronic Privacy Information Center, joined us on the line from his home--from his office here in Washington, DC. Thank you, Marc.
Mr. ROTENBERG: Nice speaking with you, Neal.
CONAN: When we come back, we'll be talking about Taiwan and spies.
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