According to the American Civil Liberties Union (“ACLU”), cell phone carriers disclosed that approximately 1.3 million requests for customer records were made last year by law enforcement officials. Despite this already alarmingly high figure, investigative reporters insist that the 1.3 million understates the true number as a result of inaccurate reporting and tracking by cell phone carriers. Research has revealed that innocent people’s information is being collected in large masses, but does not solely include subscriber billing history. It may also include geolocation information, content of text messages, wiretaps, and others. The majority of these records request, however, are made without a valid warrant or court order, clearly raising legal, constitutional and human rights concerns regarding the expectation to privacy.
Currently, federal, state, county and city law enforcement officials send emergency and non-emergency record requests to cell phone carriers. Emergency requests, known as “exigent tracking requests” is generally defined as a circumstance where a time delay to obtain a subpeona or court order may pose imminent danger of death or serious bodily injury to a person(s). Thus, companies such as MetroPCS and AT&T require the government agency to complete and return an exigent request form, signed and approved by a senior level government official. All other requests are considered “non-exigent” and require either a valid subpoena, warrant or court order before fulfilling the request.
Despite the advantages of allowing law enforcement access to cell phone records during emergency situations, the amount of requests to cell phone providers is unprecedented. To illustrate, AT&T processes approximately 700 requests, with 230 of them characterized as emergency requests, per day. In 2007, over 90,000 requests, made with either a warrant, court order or subpoena, were processed by AT&T. By 2011, AT&T processed over 130,000 alone; however, include exigent requests and that same number jumps to approximately 206,000 records requests. As a result, these law enforcement requests impacted approximately 0.25% of AT&T’s 103 million customers. Equally important, AT&T failed to mention to their coveted customers that they received over $8 million in collected fees for processing government’s records request.
Unfortunately, some records requests include “cell tower dumps” in which the cell phone carrier provides law enforcement all the phone numbers of service subscribers that connected with a tower during a specific period of time. This information often includes information on innocent individuals, since the “cell tower dumps” include all persons connected to that tower at the specified time.
In regards to this unparalleled 21st Century 4th Amendment violation, the Department of Justice has already argued that when using cell phones as location tracking devices, a search warrant or court order is not necessary and “records provide only a very general indication of a user’s whereabouts at certain times in the past, the requested cell-site records do not implicate a Fourth Amendment privacy interest.”
Notwithstanding, in U.S. v. Jones (2012) the U.S. Supreme Court held that the government’s installation of a GPS system on defendant’s vehicle constituted a search under the Fourth Amendment. In her joining concurring opinion, Justice Sotomayor explained the growing concern of law enforcement abusing their policing powers and infringing Fourth Amendment rights through modern technology: ”With increasing regularity the Government will be capable of duplicating the monitoring undertaken in this case by enlisting factory-or owner-installed vehicle tracking devices or GPS-enabled smartphones….I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain…their political and religious beliefs, sexual habits, and so on.”
U.S. Representative Ed Markey (D-Massachusettes) is conducting an investigation into these unknown – but long feared – privacy violations by law enforcement agencies. A bi-partisan legislation, known as the GPS Act, has been introduced by U.S. Senator Ron Wyder (D-Oregon), in an attempt to limit the government’s police powers when making when using GPS systems and mobile devices for surveillance purposes.
Below is a video of MSNBC’s Lawrence O’Donnell conducting a segment on “Invasion of Privacy: Secrets your Cell Phone can Reveal About You.”