Do you give up a reasonable expectation of privacy by carrying a cell phone?

As seen at a secret conference open only to law enforcement and intelligence agencies, vendors offered cell phone capturing equipment and lessons about location tracking via mobile phones. Does it, however, violate the Fourth Amendment? Do you give up a reasonable expectation of privacy and freedom from being tracked by carrying a cell phone?

Tracking via mobile devices continues to be a popular, yet extremely invasive means of electronic location surveillance with law enforcement. We looked at secret sessions that teach government and law enforcement how to hack and conduct surveillance on the masses. At that same ISS World Americas conference, there were several teaching sessions devoted to mobile devices and vendors promoting surveillance tech and cell phone capturing equipment. TeleStrategies taught a session that included, "Transforming cell records and location data into actionable intelligence, Smart Phone intercept and wireless provider business model, Apple iPhone, Google Android and LTE Challenges." Utimaco LIMS presented "SMS, the forgotten source of intelligence!" VASTech, whose tech was used by Gadhafi’s security agents to record "between 30 and 40 million minutes per month from both landline and mobile phone conversations," demonstrated "Satellite Signal Analyzer" Discover de Sky. And Berkeley Varitronics Systems, which puts out technology like the Squid as seen on the right, taught Handheld Tools for Cell Phone Direction Finding and Location. Septier, which offers solutions like in the video below, taught Mobile Location Tracking that is based on a Integration of an in network GMLC and Tactical Cellular Location Direction Finders.

If the government knows your location and knows who you are via cell phone tracking, CNN reported it can "reveal our private associations and relationships with one another. The government could make note of whenever people being tracked crossed paths or spent time together, showing who our friends, associates and lovers are." Does it, however, violate the Fourth Amendment?

On The Volokh Conspiracy, Orin Kerr wrote about the oral arguments in the United States v. Jones GPS case. "Justice Sotomayor and Ginsburg were both very worried about the Big Brother implication of using GPS devices: I counted 5 or so references to Orwell's 1984." David Kravets at Wired also mentioned that SCOTUS saw shades of 1984 in the case. According to Reuters, Justice Sotomayor wanted to know "how far the government could go, questioning whether the police could put a computer chip in a person's overcoat or could monitor and track everyone through their cell phones. 'That's really the bottom line'." Justice Stephen Breyer told the government's attorney, "If you win this case, there is nothing to prevent the police or government from monitoring 24 hours a day every citizen of the United States. The real issue here is whether this is reasonable."

So what is a reasonable expectation of privacy? Do you automatically give up a reasonable expectation of privacy by carrying a cell phone? Whether you are using your smartphone or not, it continues to ping towers if it is on and to register your location. Senator Mark Udall said of the 'secret law' of the Patriot Act, "When the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry." Then Julian Sanchez for Cato @ Liberty reported that it "most likely includes unfettered government access to geolocation data from your smartphone. That might mean cell phone records for all of us that may be turned over in mass quantities by wireless phone service providers."

The ACLU has been looking into how, why and when law enforcement can use mobile phone location data to track Americans, and then obtained 2010 records for how long your cell phone provider stores that data for law enforcement access. There is very little oversight on how authorities secretly track the movements of Americans via cell phones.

The Wall Street Journal noted, "The use of cellphone tracking by authorities is among the most common types of electronic surveillance, exceeding wiretaps and the use of GPS tracking, according to a survey of local, state and federal authorities." WSJ has been following the use of 'stingrays' which can "locate a mobile phone even when it's not being used." These stingrays spoof cell phone towers, snag and record the unique ID numbers, traffic data and the location of the device before sending it on to a real cell phone tower. Authorities drive around, gathering the signal strength from a target's mobile device to connect the dots for an accurate location. Wired reported the feds said they are "perfectly within their rights" to fake a "Verizon cellphone tower to zero in" on the location of a suspect without needing a warrant.

In "we don't need no stinking warrant," Mobile Privacy pointed out, "The reason for using tools such as this is to circumvent the need to get information from carriers directly, which requires a subpoena, and a court order and possibly even a search warrant depending on the information requested. By intercepting the signals with these devices, law enforcement is able to essentially cut out the middle man."

While governments may not want info leaked about such systems, The Guardian reported that UK police are using Datong plc as a "covert surveillance technology that can masquerade as a mobile phone network, transmitting a signal that allows authorities to shut off phones remotely, intercept communications and gather data about thousands of users in a targeted area." It is a "suitcase-sized device that can remotely disable phones, intercept communications, record unique IDs and track you in real time." CNET got confirmation that the U.S. Secret Service has also done business with Datong plc in the past. Richi Jennings wrote, "This is all being justified on the grounds of fighting terrorism -- specifically, preventing bombs being triggered by an text-message received by a disposable mobile phone. We're also 'assured' that use of such equipment for interception requires government authorization."

So in the name of fighting that terrorism and other crime, at ISS World Americas, Geocell, LLC presented Cell Phone Intelligence Training and "why we can't keep ignoring this extremely valuable data!" This session included:

Introduction to Law Enforcement Surveillance Capabilities Regarding: Cell phones, Landlines, and the Internet, including, traps and traces/pen registers [Communications Assistance for Law Enforcement Act (CALEA) deliveries], geolocations, field cell phone locations, "target developments", and communications intercepts ("wiretaps"); and, capabilities that are required to conduct real-time surveillances.

How can you use the data in your cases? Including activation and subscriber information, payment information, communications("call") detail records (CDRs) (with, and without, geographic data), stored communications such as the content of text messages, voicemails, and emails, and, surveillance options: traps and traces/pen registers (CALEA deliveries), geolocations, cell phone locations, "target developments", communications intercepts ("wiretaps"), and, the prepaid cell phone myth, including what are Mobile Virtual Network Operators (MVNOs)?

The surveillance technology to track the locations of Americans via their mobile devices is certainly not going away. We are unlikely to stop carrying our cell phones, so the upcoming SCOTUS ruling on GPS tracking and a "reasonable expectation of privacy" will deeply affect us all. As the ACLU's Catherine Crump wrote, "The genius of the Constitution is that its limits on the government can still be applied in a modern world that the framers could scarcely have imagined. Anyone who values privacy should hope that the Court ensures the government cannot use technological advances to undermine the liberties this country was founded on."

Fair Use image by Berkeley Varitronics Systems

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