[Vision2020] Big Brother

[Art Deco]

  [image: The New York Times] <http://www.nytimes.com/>

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July 8, 2012
More Demands on Cell Carriers in Surveillance By ERIC
LICHTBLAU<http://topics.nytimes.com/top/reference/timestopics/people/l/eric_lichtblau/index.html>

WASHINGTON — In the first public accounting of its kind, cellphone carriers
reported that they responded to a startling 1.3 million demands for
subscriber information last year from law enforcement agencies seeking text
messages, caller locations and other information in the course of
investigations.

The cellphone carriers’ reports, which come in response to a Congressional
inquiry, document an explosion in cellphone surveillance in the last five
years, with the companies turning over records thousands of times a day in
response to police emergencies, court orders, law enforcement subpoenas and
other requests.

The reports also reveal a sometimes uneasy partnership with law enforcement
agencies, with the carriers frequently rejecting demands that they
considered legally questionable or unjustified. At least one carrier even
referred some inappropriate requests to the F.B.I.

The information represents the first time data have been collected
nationally on the frequency of cell surveillance by law enforcement. The
volume of the requests reported by the carriers — which most likely involve
several million subscribers — surprised even some officials who have
closely followed the growth of cell surveillance.

“I never expected it to be this massive,” said Representative Edward J.
Markey, a Massachusetts Democrat who requested the reports from nine
carriers, including AT&T, Sprint, T-Mobile and Verizon, in response to an
article in April<http://www.nytimes.com/2012/04/01/us/police-tracking-of-cellphones-raises-privacy-fears.html?_r=1&pagewanted=all>in
The New York Times on law enforcement’s expanded use of cell tracking.
Mr. Markey, who is the co-chairman of the Bipartisan Congressional Privacy
Caucus<http://markey.house.gov/issues/bipartisan-congressional-privacy-caucus-0>,
made the carriers’ responses available to The Times.

While the cell companies did not break down the types of law enforcement
agencies collecting the data, they made clear that the widened cell
surveillance cut across all levels of government — from run-of-the-mill
street crimes handled by local police departments to financial crimes and
intelligence investigations at the state and federal levels.

AT&T alone now responds to an average of more than 700 requests a day, with
about 230 of them regarded as emergencies that do not require the normal
court orders and subpoena. That is roughly triple the number it fielded in
2007, the company said. Law enforcement requests of all kinds have been
rising among the other carriers as well, with annual increases of between
12 percent and 16 percent in the last five years. Sprint, which did not
break down its figures in as much detail as other carriers, led all
companies last year in reporting what amounted to at least 1,500 data
requests on average a day.

With the rapid expansion of cell surveillance have come rising concerns —
including among carriers — about what legal safeguards are in place to
balance law enforcement agencies’ needs for quick data against the privacy
rights of consumers.

Legal conflicts between those competing needs have flared before, but
usually on national security matters. In 2006, phone companies that
cooperated in the Bush administration’s secret program of eavesdropping on
suspicious international communications without court warrants were sued,
and ultimately were given
immunity<http://www.nytimes.com/2009/06/04/us/politics/04nsa.html>by
Congress with the backing of the courts. The next year, the F.B.I. was
widely criticized for improperly using emergency letters to the phone
companies to gather records on thousands of phone numbers in
counterterrorism investigations that did not involve emergencies.

Under federal law, the carriers said they generally required a search
warrant, a court order or a formal subpoena to release information about a
subscriber. But in cases that law enforcement officials deem an emergency,
a less formal request is often enough. Moreover, rapid technological
changes in cellphones have blurred the lines on what is legally required to
get data — particularly the use of GPS systems to identify the location of
phones.

As cell surveillance becomes a seemingly routine part of police work, Mr.
Markey said in an interview that he worried that “digital dragnets”
threatened to compromise the privacy of many customers. “There’s a real
danger we’ve already crossed the line,” he said.

With the rising prevalence of cellphones, officials at all levels of law
enforcement say cell tracking represents a powerful tool to find suspects,
follow leads, identify associates and cull information on a wide range of
crimes.

“At every crime scene, there’s some type of mobile device,” said Peter
Modafferi, chief of detectives for the Rockland County district attorney’s
office in New York, who also works on investigative policies and operations
with the International Association of Chiefs of
Police<http://www.theiacp.org/>.
The need for the police to exploit that technology “has grown tremendously,
and it’s absolutely vital,” he said in an interview.

The surging use of cell surveillance was also reflected in the bills the
wireless carriers reported sending to law enforcement agencies to cover
their costs in some of the tracking operations. AT&T, for one, said it
collected $8.3 million last year compared with $2.8 million in 2007, and
other carriers reported similar increases in billings.

Federal law allows the companies to be reimbursed for “reasonable” costs
for providing a number of surveillance operations. Still, several companies
maintained that they lost money on the operations, and Cricket, a small
wireless carrier that received 42,500 law enforcement requests last year,
or an average of 116 a day, complained that it “is frequently not paid on
the invoices it submits.”

Because of incomplete record-keeping, the total number of law enforcement
requests last year was almost certainly much higher than the 1.3 million
the carriers reported to Mr. Markey. Also, the total number of people whose
customer information was turned over could be several times higher than the
number of requests because a single request often involves multiple
callers. For instance, when a police agency asks for a cell tower “dump”
for data on subscribers who were near a tower during a certain period of
time, it may get back hundreds or even thousands of names.

As cell surveillance increased, warrants for wiretapping by federal and
local officials — eavesdropping on conversations — declined 14 percent last
year to 2,732, according to a recent report from the Administrative Office
of the United States
Courts<http://www.uscourts.gov/FederalCourts/UnderstandingtheFederalCourts/AdministrativeOffice.aspx>.


The diverging numbers suggest that law enforcement officials are shifting
away from wiretaps in favor of other forms of cell tracking that are
generally less legally burdensome, less time consuming and less costly.
(Most carriers reported charging agencies between $50 and $75 an hour for
cellphone tower “dumps.”)

To handle the demands, most cell carriers reported employing large teams of
in-house lawyers, data technicians, phone “cloning specialists” and others
around the clock to take requests from law enforcement agencies, review the
legality and provide the data.

With the demands so voluminous and systematic, some carriers have resorted
to outsourcing the job. Cricket said it turned over its compliance duties
to a third party in April. The outside provider, Neustar, said it handled
law enforcement compliance for about 400 phone and Internet companies.

But a number of carriers reported that as they sought to balance legitimate
law enforcement needs against their customers’ privacy rights, they denied
some data demands because they were judged to be overreaching or
unauthorized under federal surveillance laws.

Sometimes, the carriers said, they determined that a true emergency did not
exist. At other times, police agencies neglected to get the required court
orders for surveillance measures, left subpoenas unsigned or failed to
submit formal requests.

C Spire Wireless, a small carrier, estimated that of about 12,500 law
enforcement demands it received in the last five years, it rejected 15
percent of them in whole or in part. (Most carriers did not provide figures
on rejections.)

At TracFone, another small carrier providing prepaid service, an executive
told Mr. Markey that the company “shares your concerns regarding the
unauthorized tracking of wireless phones by law enforcement with little or
no judicial oversight, and I assure you that TracFone does not participate
in or condone such unauthorized tracking.”

T-Mobile, meanwhile, said it had sent two law enforcement demands to the
F.B.I. because it considered them “inappropriate.” The company declined to
provide further details.

Requests from law enforcement officials to identify the location of a
particular cellphone using GPS technology have caused particular confusion,
carriers said. A Supreme Court ruling in January further muddled the issue
when it found that the authorities should have obtained a search warrant
before tracking a suspect’s movements by attaching a GPS unit to his car.

Law enforcement officials say the GPS technology built into many phones has
proved particularly critical in responding to kidnappings, attempted
suicides, shootings, cases of missing people and other emergencies. But
Sprint and other carriers called on Congress to set clearer legal standards
for turning over location data, particularly to resolve contradictions in
the law.

While the carriers said they always required proper legal orders before
turning over nonemergency information, their assurances were somewhat at
odds with anecdotal evidence recently gathered by the American Civil
Liberties Union from more than 200 law enforcement agencies nationwide.

The reports provided to the A.C.L.U. showed that many local and state
police agencies claimed broad discretion to obtain cell records without
court orders, and that some departments specifically warned officers about
the past misuse of cellphone surveillance in nonemergency situations.

Chris Calabrese, a lawyer for the A.C.L.U., said he was concerned not only
about officials gathering phone data on people with no real connection to
crimes but also about the agencies then keeping those records indefinitely
in internal databases.

“The standards really are all over the place,” Mr. Calabrese said. “Nobody
is saying don’t use these tools. What we’re saying is do it with consistent
standards and in a way that recognizes that these are tools that really can
impact people’s privacy.”


-- 
Art Deco (Wayne A. Fox)
art.deco.studios at gmail.com
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