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. If you want to get really freaky about this stuff, start looking into RFIDs. If your pal gets a minor operation at the wrong hospital, BarkingDog, you’re going to have to drown him in the pond as well as his cell phone to protect him from whichever of a dozen or so agencies are now tracking people who frown the wrong way..

  2. While you guys were arguing I got the gist of the danger of cell phones and took my pal’s cell phone and swam out in the pond and dropped it. I am a guide dog and my pal (none dare call him an owner) dont need no CIA following him round the red light district.

  3. Gene H: Amen. (and I have read your comments in other threads).

    Bigfatmike, Having said that, I think he is very much a politician. If that is true, then why not give him his ‘ata-boys’ and let him know how much we appreciate what he is doing on this issue.

    That seems like a very reasonable suggestion and I would have welcomed it even five or ten years ago. But now I feel we are simply going down in flames and don’t have the luxury of tossing a pol a bone for one or two good tricks. Is he actually making a difference or is he just sounding good? If we give him the “ata-boy”, do we not send the message that the usual speech in front of an empty chamber (but above all else in front of at least a reporter with video) will do just fine? Indeed, it’s understandable as a reaction, but personally it’s just no longer adequate.

  4. BB,

    I did not mean to imply that your statements were inappropriate and if you took that away from my comments, that was not what I was saying in the slightest. If you’ve read enough of my posts, you’ll find that I am as non-partisan as it gets in assigning blame to politicians where blame is due. The reporting of Franken’s good act in addressing the issue of follow up with the DOJ in the wake of Jones I think reflects on this one man for this one act, but is not the sum or even key in judging the man’s character overall. It is a snapshot in an album of photos. A good picture to be only judged in the context of the whole.

    And this action, to my mind and just to be clear, does not reflect upon the DNC in the slightest. The only thing that could get me to send even the remotest accolade to the DNC would be if they – as one – demanded the immediate revocation of the Patriot Act and the prosecution of both the domestic war criminals from the Bush Administration (from Bush to Wolfowitz, every single one of them as well as the industries that aided them in violating our civil rights like the telecommunications industry) and demand the break up of the big banks and the prosecution of the white collar criminals behind the CDS debacle that nearly wrecked the global economy.

    If you want to call blame to where blame is due? I have no issue with that. I loathe both parties albeit for different reasons and to varying degrees.

  5. @Brooklin Bridge “Franken’s record of voting is at best a mixed bag, ”

    There are some on the site who seem to think of Franken as a statesman with high ideals. They are entitled to their opinion.

    But the little that I know of him after SNL comes from his AirAmerican program. To me, he seemed doctrinaire with mundane text book positions on many issues.

    Having said that, I think he is very much a politician. If that is true, then why not give him his ‘ata-boys’ and let him know how much we appreciate what he is doing on this issue.

    Of course, we ought to also let him know how reprehensible it is when he votes for things like surreptitious entry to your home on the basis of an agency issues pseudo-warrant.

    I hate sports analogies. But sometimes as citizens we have to act like coaches and work with the material we have. Right now Franken is one of the few in the game.

    Lets give him all the support and recognition we can on this issue – and hope he doesn’t sell us out for something like some kind of base or an extra interstate exit ramp near St Paul.

    Go! Franken!

  6. Anyway, it hardly seems inappropriate to examine someone’s voting record when evaluating the significance of their verbal convictions.

  7. …are they sufficient guard for your 4th Amendment and privacy rights?

    What 4th Amendment privacy rights do you think are actually left? Seriously. As it stands now, in a time when the executive can order your detention or even your death without charge or trial, when the NSA is sucking up every communication that passes over wire, fiber or through the air, when “national security letters” allow the FBI to demand your records from even your local library and make it a crime for the librarian to tell you about it, I’m not sure that any of the Bill of Rights is actually left in force.

    The rights? Yes, the rights exist. They are inherent and would exist even if the BoR had never been written. But are they in force in a time when a government can abridge them at will? That’s another question.

  8. To call out Republicans for behaving as Republicans is pretty thin gruel for a site where most readers are already quite aware of the fact.

    What is noteworthy is that Democrats, including Al Franken, are by in large voting for , or not getting in the way of, the same things as Republicans. Even so called liberal ones. And not one of them, not a single one, ever ever really digs in their heels for so called Democratic values.That’s news to many and hard to swallow for others. Unless, of course, you count speeches, or unfunded or de-fundable comissions that everyone knows in advance will produce nothing.

  9. Gene H. I was not taking issue with anything you said. I was taking issue with the post. I am well aware of the Republican pornographic wallowing romance with all forms of authoritarian behavior. It’s hardly a secret. That said, Republicans playing the monster is in no way an excuse for Democrats individually or as a party to do the same.

  10. Correction: In October of 2009 (not 2008), Franken voted to extend the Patriot act…

  11. BB,

    “Franken’s record of voting is at best a mixed bag, and as as is so often the case with Democrats, is accompanied by a constant slide towards authoritarianism.”

    I won’t argue this point, however if you wish to frame this as a partisan issue, there is no mixed bag on the part of the GOP. Their aggregate voting trends to authoritarianism without apology or hesitation. And to be clear, I wasn’t suggesting this was occasion to celebrate his courage for standing steadfast for what is right on the subject of civil rights, merely noting that he did the right thing in this instance regarding civil rights but implied that even then it is not enough remedial action to be an actual fix to the situation.

  12. In October of 2008, Al Franken voted to extend the Patriot act and he voted against the Durbin amendment that would have introduced modest reforms protecting privacy in certain situations.

    In 2011, Al Franken voted <emfor (in favor of) the Indefinite Detention act, but he also did indeed vote against extending the Partriot act citing lack of protections for American citizens. It was absolutely clear the bill would pass regardless.

    Franken’s record of voting is at best a mixed bag, and as as is so often the case with Democrats, is accompanied by a constant slide towards authoritarianism. I don’t see the occasion to celebrate his courage for standing steadfast for what is right on the subject of civil rights.

  13. anon,

    “In response to questions regarding if the feds can track you if your phone is turned off, you link to a site saying the feds can track you if your phone is turned on.”

    Really. Because this . . .

    “The government can even track some cell phones when they are powered down, unless you have also removed the battery.”

    Means they can do it with your phone powered down too. As in turned off. That is the exact language also on the site I linked to says.

    Also, the fact that you don’t realize a carrier can remotely download and execute code to your phone if they want to when it is on and without your knowledge is entirely your failing to understand the nature of the technology inherent in smart phones so I’m going to vote that your ignorance and naivety is greatest quantity on display. Please continue to display that you really don’t know how cell phones work. I don’t mind. Really. You feel free to continue to think safe from spying by your cell carrier because you use an Android phone.

    It’s hilarious.

  14. Regarding this “The government can even track some cell phones when they are powered down, unless you have also removed the battery.”

    Yeah, I even said that above. I said that was for once particular manufacturer (Nokia), and said it was certainly not true of Android phones. I said that seems to come from one courts document that is ambiguous at best and that Occam’s Razor suggests is not true.

    The last time we went around on this, you claimed of course it was true for Android phones, even though Android source is all available on the net, and no one in the millions of Android users and thousands of Android developers has ever noticed their phone is really on even or can turn back on when they have explicitly shut it down using either the power button options or the shutdown command, and even though such a capability would have to be kept hidden not just by one manufacturer, but by the tens of dozens of Android manufacturers and their employees.

  15. Thanks Matt,

    Sigh Gene,

    I can never figure out which is greater, your dishonesty or your stupidity.

    In response to questions regarding if the feds can track you if your phone is turned off, you link to a site saying the feds can track you if your phone is turned on.

    Gene which is it?

    Is your stupidity greater than your dishonesty, or the other way around?

  16. anon,

    You can’t turn on the cell phone surreptitiously when it’s turned off. But the cell phone constantly signals the various cell phone towers as you’re driving, even when the cell phone is turned off. The only way to prevent that is to take the battery out.


    “Defend Yourself Against Cell Phone Tracking

    As described earlier, the government can use information transmitted by your cellular telephone to track its location in real-time, whether based on what cell phone towers your cell phone is communicating with, or by using the GPS chip included in most cell phones.

    Many courts have required the government to obtain a warrant before conducting this type of surveillance, often thanks to briefing by EFF. (For more information on our work in this area, visit EFF’s cell tracking page.) However, many other courts have been happy to routinely authorize cell phone tracking without probable cause.

    Even more worrisome, the government has the capability to track cell phones without the cell phone provider’s assistance using a mobile tracking technology code-named “triggerfish”. This technology raises the possibility that the government might bypass the courts altogether. Even if the government does seek a court order before using “triggerfish,” though, it will only need to get an easy-to-get pen-trap order rather than a wiretap order based on probable cause.

    Put simply, cell phone location tracking is an incredibly powerful surveillance technology that is currently subject to weak technical and legal protections.

    Unfortunately, if you want to use your cell phone at all, avoiding the threat of this kind of real-time tracking is nearly impossible. That’s because the government can track your cell phone whenever it’s on, even if you aren’t making a call. The government can even track some cell phones when they are powered down, unless you have also removed the battery. So, once again, there is a security trade-off: the only way to eliminate the risk of location tracking is to leave the cell phone at home, or remove the battery.

    For more information about the privacy risks posed by cell phones, take a look at our article on mobile devices. You may also want to take a look at the advice offered by in its Primer on Mobile Surveillance.”

    [emphasis added]


    Yeah, I suppose those guys at the EFF are a bunch of dipshits too, aren’t they, anon.

  18. @bigfatmike,

    “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.”

    I traced that down a few weeks back in a post here, and it’s almost certainly a myth, and a misunderstanding from a trial transcript.

    It was sourced once by Declan Mccullagh from an ambiguous statement a judge wrote down that Occam’s razor suggests meant something different, and then every other reference to phones being able to be turned on or record you surreptitiously refers to McCullagh’s article or an article referring to it.

    It’s never been heard from since, though the myth is still there.

    If it was possible it was on one specific brand of phone (Nokia IIRC), it’s almost certainly not the case that it would work on Android phones.

    There is a danger your cheap batteries you buy on ebay have tracking devices/recording devices in them, or that the CIA/FBI could swap your OEM battery for a battery with recording abilities.

    So when you take the battery out, place it in a faraday cage.

    Gene Howington is a true dipshit btw. He’s listed as such by NIST and they use him to calibrate clowns, idiots, and bogometers.

  19. bigfatmike,

    The copper bars look completely harmless. There is a lot of heat in the engine room and the boiler room. When you’re working the switchboards hot, power on at sea, touch wrong and you’re dead. When you’re out in the middle of the ocean, somebody has to fix it. You’re not going to pull into the nearest repair shop.


    You’re correct about China and Iran.

  20. Matt Johnson,

    I took him to mean what Bamford means when he points to that kind of shift in the intelligence community: mistakes, lack of training and improper deployment of human assets. No one is perfect, sure, but mistakes in spycraft can get you killed much quicker than your average mistake. That the Italian incident didn’t result in arrests or death might have resulted in a totally different outcome from the same mistake had the agents been operating in say China or Iran.

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