Can You Hear Find Me Now?

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