The ACLU wants to know when and how federal agents are convincing courts to let them get real-time tracking information from U.S. citizens' cell phones without actually proving probable cause to a judge.
The civil rights group filed a government sunshine request Friday asking for information on how often federal investigators asked for real-time updates on the locations of Americans by simply telling a court the subscriber was relevant to an investigation. This lower evidentiary standard that can be used to get call records – but not the contents of calls.
The issue first gained attention in 2005 after a handful of lower court judges published opinions denying such requests and questioning the legal reasoning behind them. The full extent of such requests is unknown since approved orders are kept secret so as not to tip off the targets.
The ACLU sent Freedom of Infromation Act requests both to U.S. Attorney's office and the Drug Enforcement Agency Friday, asking the former (.pdf) for the number of times the lower standard was used and the case names of people who were prosecuted using such data.
The ACLU's interest was piqued when the Washington Post revisited the issue last week,
Proponents of the lower standard say that since cell users choose to carry the device in their pocket and let the device tell their mobile carrier where they are in order to send and receive calls, they shouldn't be any expectation of privacy.
Opponents of the practice argue that low standards let the police follow innocent Americans. The mobile industry also wants clearer and higher standards.
For instance, industry lawyer Michael Sussmann told panelists at a computer privacy conference last year that investigators would get records on one person and then come back asking for more.
"Some orders we see are daisy chains, where we get a subpoena for information on one person and then they want all the information on the persons calling or called by them," Sussman said. "We don't think these orders should include the pizza guy."
Most requests go to federal magistrate judges, who are largely on their own in deciding what the standards are. Federal prosecutors often wield a complicated argument that stictches together two different statutes to make the case that they don't have to meet the standard necessary to install a typical tracking device.
And when a judge does turn them down, prosecutors haven't taken the decision to an appeals court, whose ruling would then bind all the courts underneath them.
All taken that creates a large veil of secrecy around how often the feds are actually tracking Americans without proving probable cause. Hopefully, the ACLU request will pull back that veil, at least a little bit.
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