You may already know this, but your cell phone happens to be a miniature tracking device that can be used to monitor your location from afar.
There are times when knowing your exact location is useful, of course. It would be handy for a phone to help you find a gas station in a pinch, or bleep when you're about to take the wrong highway exit.
But the FBI and the U.S. Department of Justice have seized on the ability to locate a cellular customer and are using it to track Americans' whereabouts surreptitiously--even when there's no evidence of wrongdoing.
A pair of court decisions in the last few weeks shows that judges are split on whether this is legal. One federal magistrate judge in Wisconsin on Jan. 17 ruled it was unlawful, but another nine days later in Louisiana decided that it was perfectly OK.
This is an unfortunate outcome, not least because it shows that some judges are reluctant to hold federal agents and prosecutors to the letter of the law.
It's also unfortunate because it demonstrates that the FBI swore never to use a 1994 surveillance law to track cellular phones--but then, secretly, went ahead and did it, anyway.
When lobbying for that law, the Communications Assistance for Law Enforcement Act, then-FBI Director Louis Freeh assured the U.S. Senate that location surveillance would never take place unless there was evidence of wrongdoing.
"It does not include any information which might disclose the general location of a mobile facility or service, beyond that associated with the area code or exchange of the facility or service," Freeh testified. "There is no intent whatsoever, with reference to this term, to acquire anything that could properly be called 'tracking' information."
So much for promises from politicians.
This is an interesting issue.
Past promises from the FBI aside, I'm inclined to believe that Americans don't have an expectation to privacy in this matter. For a long time law enforcement, and the courts, have divided information that could be collected from communications into two groups: Message content and "on the envelope" information. Back before there were things like email and cell phones, or even land-line phones for that matter, there was only the mail.
In that era it was easy to divide the two types of information. Obviously what was written on the paper inside of the envelope was worthy of a different type of protection then what was written on the outside of the envelope. Your mailman, if he's paying attention, could testify to who you're sending letters to as well as the frequency of those letters and whether or not you're getting anything back from who you're sending them too. Thus collecting this sort of information, specifically by law enforcement, has not been considered a "violation of privacy."
This same thinking has survived into the modern age with telephones. Law enforcement routinely accesses "on the envelope" type information from phone companies without typically obtaining a warrant. This includes lists of who you're calling, who you're getting calls from, the length of the calls and how often they occur. The cell phone, given its mobility, has simply added another facet to all this by making it possible to also monitor a person's location in the world.
So is monitoring a person's location via their cell phone a violation of that person's privacy? Its hard to say. Certainly the line between "content" and "on the envelope" information is getting a little blurry, but I'm not sure we've crossed the line quite yet. For well over a decade now it has been common knowledge, for those paying attention, that cell companies can track your location via the communication between your cell phone and the various towers. Even with this information freely available millions upon millions of citizens have gone ahead and started using cell phones anyway. I think that active choice negates any expectation privacy a citizen may have. They've chosen to carry the phone around with them, that the phone's location can be monitored and that information provided to anyone the phone company choses is simply a consequence of that decision.
But despite all that, while this sort of monitoring may be legal now I do think it is high time our legislators kicked it in gear and put down some laws to better define who phone companies can provide this sort of information to and under what circumstances. Because it is clear that the laws currently on the books aren't quite cutting it.
As technology evolves it is looking more and more like we're all going to have cell phones. As the way we communicate evolves the laws that guard the privacy of that communication need to evolve as well.