Big Brother May be Tracking You

Posted April 11, 2012 in Consumer Law by Courtney Sherwood

The government could be tracking your every move, and there’s little you can do to stop it – or even to find out who is watching – according to a recent investigation by the American Civil Liberties Union.

The ACLU reviewed 200 law enforcement agencies across the U.S., and found that nearly all have tracked down individuals’ private cell phone records, many times without a warrant or court order. Only 10 police departments surveyed said they had never tracked cell phones.

The kinds of data police have been obtaining can be used to see where you are and where you’ve been – whether you’re going a church, a strip club, or you’re fleeing the country to avoid prosecution. In many cases, cops have been keeping their use of this kind of information a secret, in part to avoid a public backlash about privacy violations and possible missteps against the Constitution. And cell phone providers appear to be complicit, often providing information even without a court order, and staying mum about it afterward.

In Nevada, where training manuals say that warrantless cell data should only be obtained without a warrant in an emergency, police acknowledge that they’ve sometimes crossed the line. The Reno Police Department released a document in which it described some of its requests to cell carriers as “outside the scope of the law,” and said “Continued misuse by law enforcement agencies will undoubtedly backfire.” The Las Vegas Sun reported that police in that city only sometimes obtain warrants before they start to track people.

Allen Lichtenstein

“Technology advances at a far faster rate than the laws required to regulate the use of that technology,” said Allen Lichtenstein, general counsel for ACLU of Nevada. The rapid spread of smartphones, in particular, has created privacy concerns that have not yet been definitively decided by courts or legislators, he said.

The Fourth Amendment to the U.S. Constitution guards against unreasonable searches and seizures, and generally requires cops to get a search warrant before searching a person’s property or files. In January, the Supreme Court ruled that police need a warrant before placing a GPS tracking unit on a person’s car – suggesting that finding other ways to track movements might require a warrant as well.

But the Supreme Court has not ruled specifically on cell phone tracking, and lower courts have issued contradictory rulings, resulting in a confusing legal situation that many police departments appear willing to exploit. The U.S. Congress, as well as legislators in about a dozen states, are considering proposals to more explicitly limit cell phone tracking, according to the New York Times.


What can you do?

With the law seemingly in flux, there’s little that most consumers can do to prevent their movements from being tracked.

As long as your cell phone is on, there’s no guaranteed way to prevent the government from tracking your movements, according to the Electronic Frontier Foundation, a nonprofit digital rights and civil liberties advocacy group. Turning the phone off may help, but even then some phones can be tracked. The only way to guarantee privacy is to remove a phone’s battery or leave the device behind, the Electronic Frontier Foundation says.

Finding out if your cell records have been tracked in the past is easier – but not by much, according to Lichtenstein of the ACLU of Nevada. If you submit a public records request, also known as a freedom of information request, your local police department should tell you if it’s tracked your movements, Lichtenstein said. But to be truly thorough, you’d need to submit separate public records requests with local police, the county sheriff’s office, state police, federal law enforcement and any other agencies that might have accessed your cell phone records.

And don’t expect phone companies to stop sharing with the government until they get clearer guidance under the law.

“If your phone company is giving out information when it’s not authorized you can contact them and express your outrage,” Lichtenstein said. “But that is going to be insufficient, because there are new laws that need to be made to clarify what tracking is allowed.”

Read more about cell phone privacy and the law.

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