Can You Hear Find Me Now?

Sen. Al Franken (D-Minn.)

by Gene Howington, Guest Blogger

In these days of ever eroding civil rights, it is important to recognize those in Congress willing to stand up for your rights.  This is especially true given the ever increasing domestic surveillance of citizens without warrant by government agencies in cooperation with the telecommunications industry; a clear abuse of citizen’s 4th Amendment rights “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”   Love him or loathe him, this week the Congressman willing to fight the good fight for your rights is Senator Al Franken (D-Minn.).

The open letter to AG Holder reads (in full):

May 10,2012
The Honorable Eric Holder
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001

Dear Attorney General Holder:
In January, the Supreme Court unanimously decided in United States v. Jones that the tracking of an individual’s movements through the use of a GPS tracking device was a search subject to Fourth Amendment scrutiny. I applaud the Court’s decision and believe that it was a watershed for Americans’ privacy and civil liberties.

I was very concerned to read recent reports suggesting that state and local law enforcement agencies may be working around the protections of Jones by requesting the location records of individuals directly from their wireless carriers instead of tracking the individuals through stand-alone GPS devices installed on their vehicles. I was further concerned to learn that in many cases, these agencies appear to be obtaining precise records of individuals’ past and current movements from carriers without first obtaining a warrant for this information. I think that these actions may violate the spirit if not the letter of the Jones decision.

I am writing to ask you about the Department of Justice’s own practices in requesting location information from wireless carriers. I am eager to learn about how frequently the Department requests location information and what legal standard the Department believes it must meet to obtain it. I would also like to know how the Department practices may have changed these since the Jones decision.

I therefore request that you or your staff provide answers the following questions:
(1) How many requests for location information has the Department of Justice filed with wireless carriers in each of the past five calendar years and from January to April of this year? How many individuals’ location information was asked for in these requests?
(2) How many of these requests were complied with partially or entirely? How many individuals’ location information did the Department receive as a result of these requests?
(3) What historical and prospective (i.e. real-time) location information do you request from wireless carriers (e.g., cell site data, GPS data)?
(4) What legal standard does the Department of Justice believe applies to a request for historical location data (e.g., subpoena, court order, warrant, etc.)?
(5) Is this standard different or the same for prospective data?
(6) Is the standard different or the same for GPS data as opposed to cell-site data?
(7) Have these standards changed since the Jones decision? If so, how?
(8) Have any of the Department’s practices with respect to location information requests from wireless carriers changed since the Jones decision?
(9) How much money has the Department of Justice paid wireless carriers to offset expenses for their retrieval of this data in each of the past five years and from January to April of this year?

I respectfully request that you or your staff provide responses to these questions by June 11, a month from the date of this letter. I believe that this is an urgent matter and one that will provide critical information for policymakers and privacy advocates alike.

Thank you for your prompt attention to this matter.

Al Franken
Chairman, Subcommittee on Privacy, Technology and the Law

For those not familiar with the Jones decision mentioned in the letter, Senator Franken is referring to U.S. v. Jones, No. 10-1259, decided by the Supreme Court on January 12, 2012 and previously discussed on this blog here and here.  In summary, the government sought in Jones to create a precedent stating that they did not need a showing of probable cause to follow citizens with Global Positioning Devices such as cell phones.  In an increasingly rare victory for civil rights, the Supreme Court decided unanimously against the government.

Given that telecommunications companies have a history of turning over your records without subpoena and simply at the request of the government and that they were given retroactive immunity for such violations of law and your civil rights, Senator Franken’s letter is more than just functionary window dressing but is rather a necessary follow up to find out if the DOJ is complying with the law in the wake of Jones.

While Senator Franken’s actions are laudable,  are they sufficient guard for your 4th Amendment and privacy rights?  Or does Congress as a whole need to take more aggressive action to protect citizens over corporations who collude with government to usurp your Constitutional rights?

What do you think?

Source(s):  Letter dated May 10, 2012 from Sen. Al Franken (in his role as Chairman of the Senate Committee on the Judiciary Subcommittee on Privacy, Technology and the Law) to Attorney General Eric Holder (.pdf), threat post 1 and 2 (from The Kapersky Lab Security News Service), The Wall Street Journal, U.S. v. Jones, No. 10-1259, January 12, 2012 (.pdf).

~submitted by Gene Howington, Guest Blogger

88 thoughts on “Can You <strike>Hear</strike> Find Me Now?”

  1. Great topic, Gene. Despite Sen. Franken’s efforts, I sense that there is a general lack of public concern over government monitoring. I believe that one of the principal reasons for this is that traditional notions of privacy have almost disappeared in the world of social networks. Younger people have embraced the ability to make their private lives public, down to the most trivial of details. And older people have become so frightened by the constant reminder that the guy next to them at Starbucks could be a terrorist that the thought of widespread monitoring is consoling.

  2. Bron,

    Yeah, those po’ ol’ businessmen mindin’ their own business paying out graft by the handful so they can get exemptions from the law or laws to their benefit.

    No matter how many times you try to sell your Libertarian de-regulation bullshit, graft is still a crime that requires at a minimum two participants: the graftor and the graftee. One of those two is a businessman and on is a pol, no matter how many times you try to apologize for the businessmen. Ending regulation would do only one thing: result in a windfall for businessmen who no longer have to pay graft to get what they want since they would already be above the law.

  3. I don’t understand the demand for perfection. If I lived that way I would never have married, I would have thrown a child or two out of the house, I wouldn’t have had that wonderful chemistry teacher, I would never have played the piano, I wouldn’t have gone to my second choice college, I wouldn’t admire O’Connor’s fight against election of judges, HH wouldn’t be my best friend, I’d never sing in church, I wouldn’t work for a corporation, I wouldn’t have a bank, I’d never had had sex for a second time, I’d never go to a hospital, I’d never read the NYT, I’d never vote, I’d never have finished Moby Dick, I’d never get beyond Genesis, I’d never camp out, I’d never visit India, I’d never play tennis…

  4. What Swarthmore Mom said! I am a big fan of Franken. No politician is perfect, but Franken is a Senator trying to make a difference. Great article Gene, notwithstanding what anon says.

  5. “Or does Congress as a whole need to take more aggressive action to protect citizens over corporations who collude with government to usurp your Constitutional rights?”

    Or does Congress, as a whole, need to take more aggressive action to protect citizens from over-reaching government bureaucrats who blackmail corporations with monetary and regulatory penalties if they dont submit to government force in the process of smashing your Constitutional rights.

    There, now it is correct.

  6. I havent read any comments yet but what about red light cameras and the cameras that are all over the country and are used in conjunction with facial recognition software?

    Red light cameras are causing accidents instead of preventing them.

  7. And don’t get me started on John Kerry, who was too stupid to keep his rich Portuguese wife locked up.

  8. Mike,

    How do you overthrow the Corporatocracy? It might help to stop voting for people who are helped to power by the likes of Karl Rove. I saw one debate between John McCain and George W. Bush where McCain was expressing visible discontent. Bush Jr. said “it’s just politics, John.”

    Too bad John McCain was too stupid to choose someone who actually has some competency as his running mate.

  9. Indeed, to give Franken praise without scrutinizing his votes over the last three years strikes me as being the more puzzling.

  10. Mike Spindel: You are right, there is little difference between us politically, but what there is on the subject of solutions, is quite significant. You should indeed criticize my constant negativity and my or Gene H.’s unwillingness to vote for the lesser of two evils and we (assuming Gene H. shares that position) should just as actively criticize your stance that real change comes from careful responsible long term effort working from what you have and adding to it when possible (etc.).

    Good as that position sounds (and I realize I’m almost certainly putting words in your mouth), it has significant weaknesses at this time as I have touched upon above. When we finally get to the voting booth, I know we will both defend to our dying breath, DiBold’s absolute right to do what ever it will do :-).

    As to Al Franken, I think it matters whether the froth coming from the fox’s mouth is from enthusiasm for the subject or from egg-yokes and hence the scrutiny based on his voting records.

    1. BB,

      Voting for the lesser of two evils is not a solution by any means, merely a holding action until those who believe as we do can get it together to begin a real mass movement for change, without repeating the egotism and mistakes made in the 60’s, when there was an opportunity that we blew in our arrogance.

  11. “Also, one should not have to have a solution, near term or other, to examine, criticize or otherwise comment on politicians regardless of stripe, friend or foe. If that was indeed a required criteria for making a comment or post, there would be no discussion forums.”


    You are absolutely correct in your statement above. However, from my perspective, people should explore all options for ridding ourselves of the corporate tyranny ruling America and take particular care to continue what meager protection exists for the 99%. Having developed a political consciousness in the early 50’s I have long despaired over the terrible excesses of American foreign policy of the last 67 years and have learned that these inhumanities have plagued our country’s existence.

    Having spent a career as a social worker, psychotherapist and social services executive, I know first hand the misery that many live in under our system of
    corporate governance/deference. Indeed during my time in the field I’ve watched things get worse for the underclass and the middle-class. Perhaps I
    am too emotional in empathizing with the pain of ordinary people, but then since I’m one also, I have a sense of what having to struggle financially is all about.

    I took part in the Movement for social justice and peace in the 60’s and I believe that we only partially succeeded in our objectives of ending the war and racism. My sense of the failure back then was that we came from a position of moral superiority, rather than trying to win over and convince the majority of people of the truth of our cause. We assumed that having logic on our side people couldn’t fail to join us. I see these same flaws in the nascent movement today and an intolerance for those who don’t share what we think are our “enlightened” views.

    Effective movements, social revolutions if you will, require building coalitions among people with a broad spectrum of beliefs. Not everyone will be on the same page, but one doesn’t elicit new members of a movement by having litmus tests of their purity. Al Franken in my opinion, with his flaws, stands above most in the Senate. To fail to acknowledge this, is in my opinion self-defeating, but others who I consider on the same side as me see it differently.

    This is written not as an attack upon you or your views, which from your writing seem politically close to mine. This is also not written to get you to vote for anyone who you feel morally unable to support. Gene and I for instance share many political perspectives, but he for years has clearly stated he would not vote for Obama, I have never criticized him for his position and in fact acknowledge his logic in making that choice. I see it differently and I am bound to follow my logic and sense of the right moral choices.

    As far as solutions you don’t have to offer any, but it is not unfair of me to ask what your strategy for overthrowing the Corporatocracy might be, as it is fair for you to refuse to opine.

  12. On balance, Franken is a force for good in US politics. While he is not Paul Wellstone, he is a better heir to that seat than the true sleazebag Norm Coleman that he defeated. Minnesota is not as liberal as it once was. I sent him money, and have been a fan of both him and his wife since I met him in 1976 which is a very long time ago.

  13. There’s an interesting discussion on this subject with Christopher Calabrese of ACLU on C-SPAN’s Washington Journal at the moment.

  14. Franken’s voting record, like that of any politician, is a legitimate part of any post about any particular act or speech or inquiry he gives.

    Also, one should not have to have a solution, near term or other, to examine, criticize or otherwise comment on politicians regardless of stripe, friend or foe. If that was indeed a required criteria for making a comment or post, there would be no discussion forums.

    I am not sure whether Al Franken is moving the discussion in the right direction or whether he is reflecting what he hears loud and clear from his constituents or simply from reading blogs like this one. But I am sure that the discussion has been “moved in the right direction” for over 40 years and I think at this point considerable negativity and/or skepticism is warranted if not critical.

  15. Dear Senator Franken:

    If you will kindly consult the Internet website SCOTUSblog here, you will find that the Supreme Court’s ruling in United States vs Jones pertains solely to (1) “attaching a GPS device to a vehicle” and (2) “using the device to monitor the vehicle’s movements.” Nowhere in your nine (9) requests for information does the word “vehicle” occur even once, therefore the Justice Department neither confirms nor denies having any information to give you relevant to either the letter or the spirit of the Supreme Court’s decision in United States vs Jones.

    Respectfully yours,

    Eric Holder, Attorney General of the United States

  16. Yo, Mike Spindell: we are forming a Dog Party. This will be a real party, not some asterik for the RepubliCon Party like the Tea Party. To join you must just say that Dog Spelled Backwards is the party of the people. Or four legged critters. Four legs good, two legs baaaaad. That last phrase was from Animal Farm. But it is a good campaign slogan. You see, most humans think that just having their two feet on the ground gives them stability and a view of life. But if they get down on all fours then they will see the true world. Vote for me for President: BarkinDog.

    1. BarkinDog,

      As much as I hold you in esteem, I’m interested in a party that can make a difference now. You seem fine as far as dogs go, but I’m a Lhasa Apso kind of dog friend and need to be assured that those in the party are as brave and intelligent.

  17. Al Franken is moving the issue in the right direction and hopefully others will acknowledge that and work with him. I support him.

    1. I would posit that few politicians in American history would gain the approval from many here after scrutiny of their careers and I’d be among them. However in the spirit of BFM I would ask those vociferous in their disdain of the political class what do you recommend that will avert the disaster of complete corporate control? There is no groundswell for Revolution. No viable third party movement and despite the deprecation of of both parties the distinct probabilty that Romney will ruin many more lives in his presidency than has Obama exists. Got a viable alternative that works near term?

  18. In line with my previous comment, please see this segment with Thomas Drake on Elliot Spitzer’s Current TV show, Viewpoint. Link: NSA Whistleblower: Justice Department Covers Up Crimes of Obama, Bush Administrations

    Listen to the segment. (Would link a transcript if I could find one.) It becomes apparent that everything is being sucked up and stored for later use. Everything. As Thomas Drake said “Not only did I discover the wheels had come off the existing vehicle, we were in an entirely new vehicle — in absolute violation of the Constitution.”

    So…like I said…what 4th Amendment right to privacy do you actually think is left? Any appearance of privacy is but illusion.

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