EFF battles DOJ on real-time cell phone tracking

Fighting crime and the war on terror is often a difficult compromise between law enforcement, lawyers and judges. In a recent court order, Judge James Orenstein with the US District Court denied the Department of Justice’s (DOJ) request gather real-time locations of cellular telephones. Traditionally, law enforcement has been given a free ride on seeking phone warrants, but now some judges and the Electronic Frontier Foundation (EFF) are rising in opposition.

The DOJ, which contains dozens of agencies including the Drug Enforcement Agency and Federal Bureau of Investigation, regularly obtains court orders or warrants to collect telephone data. In the past, these "wiretaps" have been placed on traditional landline telephones, but today more and more warrants are being requested for cellular phones. Several different types of warrants can be granted depending on what the government wants to obtain.

One type of warrant allows the government to record conversions on the phone line. Then there are warrants for recording telephone numbers - outgoing numbers are recorded with a "pen register" while incoming numbers are recorded with a "trap and trace" warrant. The government can also request a warrant to track, in real-time, the location of a cellular phone.

While simple tapping of phone conversations has been nothing unusual in the past, the crux of arguments between the DOJ and the EFF is real-time tracking of cellphones, where, the EFF believes,the DOJ is overstepping its bounds.

According to Seth Schoen, Staff Technologist at the EFF, there are three ways of determining the location of a cellular phone. The easiest and probably most accurate is to ask it for the current GPS location. Many of the newer phones integrate a GPS chip to help comply with new E911 laws. Schoen says that the same technology that helps ambulances and police come to your rescue could be the same one that helps the police catch you. The other two ways are variations of a single technique. A device can ask the cell phone what towers it sees or it can ask a tower what cell phone it sees. With either technique, you can triangulate the position of the phone and be accurate to a few city blocks.

According to EFF attorneys, DOJ lawyers are "twisting" existing laws such as CALEA and the Wiretap Act to obtain these warrants. Kevin Bankston, Staff Attorney with the EFF, says, "They are wholly misrepresenting the law. Some judges are calling them Hail Mary arguments."

In his recent opinion, Judge Orenstein was not opposed to real-time location tracking, but wants DOJ to show greater probable cause before granting the warrant. EFF argues that a greater burden exists on law enforcement when asking for such warrants because real-time tracking is "invasive". "This is a threat to our privacy. We must establish strong legal protections for information about our location," Bankston said. He mentioned that the location information is being transmitted on a "control band" that cell phone users have no control over : "As soon as you turn on the phone, it starts talking with the nearest cell phone towers."

Bankston emphasizes that the EFF isn’t completely opposed to location tracking, but argues that "there should be stricter guidelines" that the technology "should only be used for the most serious crimes." Bankston believes that Congress needs to enact laws that are clearer on the proper standand for obtaining real-time location data to back up the DOJ’s actions : "Judges are operating in the dark and are approving hundreds of these warrants," says Bankston.

The DOJ obviously has a different take on the matter. To them wiretapping is an integral part of catching criminals. Paul Breffon, spokesman for the DOJ, told TG Daily that "wiretapping is an important tool to law enforcement and has been invaluable to catching criminals and thwarting acts of terror. Real-time information in some cases could mean the difference between life and death. We are not going to risk an error on the side of national security."

Breffon does not mind that the groups like the EFF oppose DOJ’s efforts to obtain wiretaps saying, "We expect that there will be groups or individuals that will disagree or see things in a different way - that will always be the case. We simply disagree with their opinion. Our obligation is enforcing the law and protecting national security."

But he also thinks it’s ironic that the very tool they are using to right some of the shortcomings in intelligence leading up to the 9-11 attacks is being attacked. "The 9-11 commission criticized law enforcement for failing to connect the dots. We need the ability to connect the dots and this is one area where it is critical," Breffon said.