ACLU: Police Tracking Cellphones as a 'Routine Tool'

The American Civil Liberties Union (ACLU) has released results from an investigation they did into how law enforcement agencies use cellphone tracking. The results, they concluded, are troubling. While virtually all 200 police agencies that were contacted by the ACLU said they used cellphone tracking, very few obtained warrants to do so, the report said.

"The government's location tracking policies should be clear, uniform, and protective of privacy, but instead are in a state of chaos, with agencies in different towns following different rules -- or in some cases, having no rules at all. It is time for Americans to take back their privacy. Courts should require a warrant based upon probable cause when law enforcement agencies wish to track cell phones," the ACLU reported.

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ACLU: Cell Phone Location Tracking Public Records Request

In August 2011, 35 ACLU affiliates filed over 380 public records requests with state and local law enforcement agencies to ask about their policies, procedures and practices for tracking cell phones.

What we have learned is disturbing. While virtually all of the over 200 police departments that responded to our request said they track cell phones, only a tiny minority reported consistently obtaining a warrant and demonstrating probable cause to do so. While that result is of great concern, it also shows that a warrant requirement is a completely reasonable and workable policy.

The government's location tracking policies should be clear, uniform, and protective of privacy, but instead are in a state of chaos, with agencies in different towns following different rules -- or in some cases, having no rules at all. It is time for Americans to take back their privacy. Courts should require a warrant based upon probable cause when law enforcement agencies wish to track cell phones. State legislatures and Congress should update obsolete electronic privacy laws to make clear that law enforcement agents should track cell phones only with a warrant.

Below is an overview of our findings and recommendations.

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The ACLU received over 5,500 pages of documents from over 200 local law enforcement agencies regarding cell phone tracking. The responses show that while cell phone tracking is routine, few agencies consistently obtain warrants. Importantly, however, some agencies do obtain warrants, showing that law enforcement agencies can protect Americans' privacy while also meeting law enforcement needs.

The government responses varied widely, and many agencies did not respond at all. The documents included statements of policy, memos, police requests to cell phone companies (sometimes in the form of a subpoena or warrant), and invoices and manuals from cell phone companies explaining their procedures and prices for turning over the location data.

The overwhelming majority of the over 200 law enforcement agencies that provided documents engaged in at least some cell phone tracking -- and many track cell phones quite frequently. Most law enforcement agencies explained that they track cell phones to investigate crimes. Some said they tracked cell phones only in emergencies, for example to locate a missing person. Only 10 said they have never tracked cell phones.

Many law enforcement agencies track cell phones quite frequently. For example, based on invoices from cell phone companies, it appears that Raleigh, N.C. tracks hundreds of cell phones a year. The practice is so common that cell phone companies have manuals for police explaining what data the companies store, how much they charge police to access that data, and what officers need to do to get it.

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New York Times: Police Are Using Phone Tracking as a Routine Tool

Law enforcement tracking of cellphones, once the province mainly of federal agents, has become a powerful and widely used surveillance tool for local police officials, with hundreds of departments, large and small, often using it aggressively with little or no court oversight, documents show.

The practice has become big business for cellphone companies, too, with a handful of carriers marketing a catalog of "surveillance fees" to police departments to determine a suspect's location, trace phone calls and texts or provide other services. Some departments log dozens of traces a month for both emergencies and routine investigations.

With cellphones ubiquitous, the police call phone tracing a valuable weapon in emergencies like child abductions and suicide calls and investigations in drug cases and murders. One police training manual describes cellphones as "the virtual biographer of our daily activities," providing a hunting ground for learning contacts and travels.

But civil liberties advocates say the wider use of cell tracking raises legal and constitutional questions, particularly when the police act without judicial orders. While many departments require warrants to use phone tracking in nonemergencies, others claim broad discretion to get the records on their own, according to 5,500 pages of internal records obtained by the American Civil Liberties Union from 205 police departments nationwide.

The internal documents, which were provided to The New York Times, open a window into a cloak-and-dagger practice that police officials are wary about discussing publicly. While cell tracking by local police departments has received some limited public attention in the last few years, the A.C.L.U. documents show that the practice is in much wider use -- with far looser safeguards -- than officials have previously acknowledged.

The issue has taken on new legal urgency in light of a Supreme Court ruling in January finding that a Global Positioning System tracking device placed on a drug suspect's car violated his Fourth Amendment rights against unreasonable searches. While the ruling did not directly involve cellphones -- many of which also include GPS locators -- it raised questions about the standards for cellphone tracking, lawyers say.

The police records show many departments struggling to understand and abide by the legal complexities of cellphone tracking, even as they work to exploit the technology.

In cities in Nevada, North Carolina and other states, police departments have gotten wireless carriers to track cellphone signals back to cell towers as part of nonemergency investigations to identify all the callers using a particular tower, records show.

In California, state prosecutors advised local police departments on ways to get carriers to "clone" a phone and download text messages while it is turned off.

In Ogden, Utah, when the Sheriff's Department wants information on a cellphone, it leaves it up to the carrier to determine what the sheriff must provide. "Some companies ask that when we have time to do so, we obtain court approval for the tracking request," the Sheriff's Department said in a written response to the A.C.L.U.

And in Arizona, even small police departments found cell surveillance so valuable that they acquired their own tracking equipment to avoid the time and expense of having the phone companies carry out the operations for them. The police in the town of Gilbert, for one, spent $244,000 on such equipment.

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