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. Gene,

    What does bfm mean by degenerating human intel infrastructure and spy craft? Simple mistake under pressure? Nobody got arrested in Italy, but they might not want to go there on vacation.

    1. Matt, forgetting to take the batteries out is a mistake, possibly cause by pressure. Not knowing to take the batteries out is a decline in spycraft.

      Some might argue that making a mistake of that magnitude also indicates a decline in spycraft. I don’t know anyone who is offering a complete definition of spycraft. But I would think any reasonable meaning would have to include both knowledge and the ability to execute on the basis of knowledge.

      You ought to know better than I, mistakes count. Mistakes can get you killed.

  2. Matt Johnson,

    That’s hardcore.

    However, it think bfm’s point about degenerating human intel infrastructure and spycraft is a good one. James Bamford (who writes a lot about the intelligence community) has long been pointing to human intelligence failures based on the over reliance on signal intelligence. It’s only natural that the one set of skills and support infrastructure would atrophy in such an unbalanced situation.

  3. bigfatmike,

    I really do know how to use emergency power generators. I know how to wire switchboards, too. Three stage, 480 volts at sea. Try that with the ship moving and electricity not secured. The worst part is when you can’t find out which fuse is blown. Safety check was a guy standing behind me with a section of rubber garden hose to pull me out if I got stuck.

    The CIA guys know now. They weren’t amateur contractors. They were in the process of kidnapping some Mullah, and the Italians knew where they were because they didn’t take the batteries out of their cell phones. Caused an international incident.

  4. “And how come our CIA guys didn’t know that anyway? Has human intel and spy craft fallen that low in this country or were these just amateur contractors, or (conspiracy theory alert!) sacrificed for political expediency?”

    I would suggest the answer to that is “yes” in varying degrees. bfm.

  5. czardonic,

    Thanks! And that’s a great handle you’ve got there.

  6. bigfatmike,

    Italian authorities were able to track CIA agents by their cell phone signals even though the cell phones were turned off. Take the battery out of your cell phone.

    1. Your are the man Matt.

      And when my emergency power generator fails, I’m calling you first. Assuming I can figure how to get a call out.

      And how come our CIA guys didn’t know that anyway? Has human intel and spy craft fallen that low in this country or were these just amateur contractors, or (conspiracy theory alert!) sacrificed for political expediency?

  7. Try harder, anon.

    If you are unable to stop yourself from reading what I write even if you don’t want to? That’s called a compulsion. Seek professional psychiatric help.

    As to the rest of it?

    1) This is neither your blog nor are you an editorial contributor. The readership is not your concern.
    2) I am not the complaint department.
    3) If you have a problem, address it to Professor Turley.

    1. Some readers might not realize it, but these two are really the best of friends. And when not hurling faux insults at each other over the internet, they are usually at the local tavern buying each other rounds and regaling each other with old time war stories.

      Right guys? I mean that is reasonably accurate… right? Well there is some truth to that … isn’t there?

  8. There is a reason I use a phone registered to a different address, with the name registered to a fictitious character, and turned on only when I have reason to believe someone might call me. Privacy is simple. If it is stored digitally, in any capacity, it is not private. Period. You may have a legal expectation of privacy, but a factual expectation of privacy is something altogether different. I’m not the largest fan of Mr. Franken, but I may have to revise my opinion of him if he keeps supporting rights to privacy.

    1. Be sure to take the battery out when you turn the phone off. Some phones can be surreptitiously turned on to monitor near by conversations, not to mention the possibility of GPS tracking. Or so I have been told.

      Good luck.

  9. “If you don’t like what I write, don’t read it.”

    Well, I already said I try not to since it’s such a huge time suck of incompetence.

    I thought I would step in and politely point out to you the numerous transcription errors in your post and the disservice that does to Senator Franken, Professor Turley and readers of his blog.

    But I know how sensitive you are counselor, to admitting even flagrant and egregious errors, and how you must insist it was other people that caused them, not anything you did.

  10. “The answer to the question Gene poses is that obviously elected officials must once again establish full control over the actions of the American intelligence community. My suspicion is that will be a difficult and highly dangerous task.”

    Exactly where my thinking was going with this, Mike. That’s why I phrased the questions as I did about Congressional action – safety in numbers. The question remains is are there enough Congressmen (and women) of good conscience brave enough to step forward on these matters (and others).

    1. “The question remains is are there enough Congressmen (and women) of good conscience brave enough to step forward on these matters (and others).”


      I do believe this is the heart of the problem. Forgetting individual political viewpoints, so many of us who write/comment here do understand that this is not the America we were taught about in school. There is almost universal agreement here that the current wars were wrong and immoral. There is also a large consensus that believes that money and the power it bestows rules our politics. Why then is it so hard to take the next logical step and agree that taking certain stands, by even a President, puts them and their families at physical risk? Were there no physical risk in America politics than JFK would have served two terms, RFK may have become President and MLK may have really led us all to the other side of the mountain.

      I understand that some may ask why people as smart as those three didn’t rein themselves in in the face of these dangers. My guess is that JFK didn’t believe that the system was so bad as to think he could be killed for his positions. RFK didn’t believe they could kill him after killing his brother. MLK on the other hand had no illusions about the threat posed, but was willing to die for his cause and suspected it was coming soon. i.e. His last prophetic speech. As many here know, I discussed my apocalyptic views in a blog some time back.

  11. Getting back to the topic at hand, despite the inane interjections, when will people understand and/or accept that there is no real “checklist” and/or “scorecard” to be used to grade politicians. More specifically, if you agree with every specific position or vote taken by a politician, then you would probably be a tea bagger adoringly regarding the aspect of Rick Santorum.
    Why is it that so many of us here are so skeptical about the fact that we are really living in a democracy and yet so loath to accept that it isn’t always easy for a politician to do the right thing, possibly it is even deadly to act on conscience. Al Franken has been a great Senator and has kept his promise to carry on in the tradition of his friend Paul Wellstone. To me Wellstone’s death remains suspicious and the fact that Franken brings up this issue with the intelligence community is alone proof of his courage.

    The answer to the question Gene poses is that obviously elected officials must once again establish full control over the actions of the American intelligence community. My suspicion is that will be a difficult and highly dangerous task.

  12. Mike,

    Don’t forget “up yours”. The boy obviously has something on his mind.

  13. “I have two different readers, they copied out the text just perfectly (sans formatting).”

    Well goody for you, Mr. Irrelevant!

    If you don’t like what I write, don’t read it.

  14. “and regret the time I spent thinking maybe you had something to say for once, and could say it without soiling yourself.”

    Considering what an asshole you are Anon, it is obvious why you would use “soiling” in the course of inane deprecations.

  15. Sides which, shouldn’t kill ya to proofread your spittle, or to listen to commenters that suggest there are errors in your droppings.

  16. I have two different readers, they copied out the text just perfectly (sans formatting).

    That’s why I told you to up your game.

    Now I’m just saying, up yours.

  17. If you want to be technical about the matter, the encoding error that caused the problem with the copy paste originated the pdf document released by Senator Franken’s office so actually they did write the crap I attributed to them. Word for miscoded word.

    On the other hand, your ramblings have brought to mind the perfect word to describe what I think of you, anon.


    Just like all of your comments.

Comments are closed.