Disturbing case of police spying on a citizens cell phone without a warrant
The Fourth Circuit Court of Appeals is currently considering a case that could be pivotal in determining whether the government needs a warrant to track your cell phone.
Today the ACLU, together with the ACLU of Maryland, Center for Democracy & Technology, Electronic Frontier Foundation, and National Association of Criminal Defense Lawyers, filed an amicus brief arguing that the Fourth Amendment requires the government get a warrant to find out everywhere a person has been for the past seven months. In the case, United States v. Graham, the government obtained a staggering 221 days of historical cell site location information for two suspects. For one suspect, Aaron Graham, this timespan allowed the government to sweep up his location at 29,659 specific points. (You can see our brief here, and see here a document we filed that shows all of Sprint's cell sites in the Baltimore area.)
Generally the cell phone location records obtained by a law enforcement agency are never seen by the public or even the person being tracked. In this rare instance, with Mr. Graham's assistance and permission, we received and analyzed the data that the police obtained from his cell phone carrier. We found that:
Mr. Graham's wife was pregnant during the records period. 29 calls during business hours began or ended in the sector where Mr. Graham's wife's OB/GYN's office is located, allowing the inference that they were at the doctor's office at these times.
The most frequently occurring cell site and sector in Mr. Graham's records is the closest sector and tower to his home – nearly a third of all of his calls were placed or received in this sector. Of those 4,917 calls, 77 started in his home sector and ended elsewhere and 226 started elsewhere and ended when he was at home, providing information about his patterns of movements to and from home.
From July 10 to July 15, 2010, Mr. Graham's last call of the night and first call of the morning were either or both placed from his home sector, allowing the inference that he slept at home those evenings. However, on July 9, Mr. Graham's last call of the night and first call of the next morning were placed from a cell sector 30 minutes from his house. Although we have no reason to believe it to be the case here, this information could reveal private information about the status of a person's relationships and any infidelities.
In the recent Supreme Court case U. S. v. Jones, five justices concluded that an investigative subject's "reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove."
While Jones involved attachment of a GPS device to a car, its reasoning applies with even greater force to cell phone tracking. People carry their cell phones with them all the time. Each time a cell phone makes or receives a call or text message, the wireless provider logs the cell towers the phone connected to during that communication. Cell phone tracking therefore allows the government to reach back into the past and pull up a record of where we have been on any given day. And if the Supreme Court found that 28 days of location tracking violated a reasonable person's expectation of privacy, then surely the 221 days of tracking in this case is beyond the pale.
The only other appellate court to rule on the issue is the 3rd U.S. Circuit Court of Appeals, which said in 2010 that the lower courts have the option to demand a warrant for cell-site data. The court covers Delaware, New Jersey and Pennsylvania.
Given its sensitivity, cell phone location data is not the sort of information that law enforcement agents should be obtaining without the safeguard of a warrant from a judge. In the Graham case, the Fourth Circuit has an opportunity to make clear that a warrant is the constitutional minimum. Our brief urges it to do just that. Today technology makes it easier for the government to track each and every one of us than ever before. But no matter how invasive technology becomes, Americans are still entitled to the protections of the Fourth Amendment.
http://www.aclu.org/blog/technology-and-liberty-national-security/fighting-striking-case-warrantless-cell-phone-tracking
Courts can’t agree on whether cops can track your cell without a warrant:
http://www.wired.com/threatlevel/2013/07/cell-site-data-crossroads/
Embarrassed Director of National Intelligence James Clapper apologizes for lying about spying on Americans:
Washington, D.C.- Director of National Intelligence James Clapper has apologized for telling Congress earlier this year that the National Security Agency does not collect data on millions of Americans, a response he now says was "clearly erroneous."
In early June, after the NSA leaks had brought renewed attention to Clapper's "No, sir," comment. Clapper cited the difficulty of answering a question about a classified program and said in an interview on NBC News that he had responded in the "least most untruthful manner."
He made a new attempt to explain the exchange in his June 21 correspondence, which included a hand-written note to Wyden saying that an attached letter was addressed to the committee chairman but that he "wanted Wyden to see this first."
Clapper said he thought Wyden was referring to NSA surveillance of e-mail traffic involving overseas targets, not the separate program in which the agency is authorized to collect records of Americans' phone calls that include the numbers and duration of calls but not individuals' names or the contents of their calls.
Referring to his appearances before Congress over several decades, Clapper concluded by saying that "mistakes will happen, and when I make one, I correct it." This is unbelievable on a variety of levels. First off, as Wyden made clear, his office had sent Clapper the question a day before the hearing so that he knew the question was coming. To argue that he was confused about the question is quite unbelievable.
Furthermore, Senator Wyden claimed that: "after the hearing was over my staff and I gave his office a chance to amend his answer." Clapper now says that his staff "acknowledged the error to Senator Wyden soon after the hearing," but if that's the case, it doesn't appear that anyone else seems to know about this. Furthermore, if this were true, then wouldn't Clapper have said this back in early June when people first started asking about those statements? But he did not. This sounds like after-the-fact rationalizations for lying to Congress and being called on it.
On top of that, we're talking about perjury, in lying to Congress. If other people perjure themselves, do they get to -- many months later -- go back and say "whoops, my bad" and get away with it?
Finally, when looked at in the context of Clapper's previous answer that he gave the "least untruthful" answer to Wyden, in which he suggested that he fully understood the question, would that now compound the lies? Did he give the least untruthful answer to a complex question, or did he not understand the question. He's now claimed both, and under either case, he seems to be continuing to lie, rather than answer honestly.
Unfortunately, it appears that Clapper is likely to get away with blatant lying to Congress as well, as experts are saying there's almost no chance of prosecution in this case. Why? Well, in part because apparently everyone seems to accuse everyone else of lying to Congress so frequently that no one pays any attention to when it actually happens.
An outstanding Washington Post article by Greg Miller this week documented:
"Details that have emerged from the exposure of hundreds of pages of previously classified NSA documents indicate that public assertions about these programs by senior US officials have also often been misleading, erroneous or simply false."
Please re-read that sentence. It's not just Clapper, but multiple "senior US officials", whose statements have been proven false by our reporting and Edward Snowden's disclosures.
Clapper apologized in a letter to Senate Intelligence Committee Chairwoman Dianne Feinstein. His agency posted the letter Tuesday on its website.
Leaks by former NSA systems analyst Edward Snowden have revealed the NSA's sweeping data collection of U.S. phone records and some Internet traffic every day, though U.S. intelligence officials have said the programs are aimed at targeting foreigners and terrorist suspects mostly overseas.
Clapper was asked during a hearing in March by Sen. Ron Wyden, an Oregon Democrat on the Intelligence Committee, if the NSA gathered "any type of data at all on millions or hundreds of millions of Americans."
At first, Clapper answered definitively: "No."
Pressed by Wyden, Clapper changed his answer. "Not wittingly," he said. "There are cases where they could inadvertently perhaps collect, but not wittingly."
Last month, in an interview with NBC News after revelations about the program, Clapper said: "I responded in what I thought was the most truthful, or least untruthful, manner" – because the program was classified.
In his letter to Feinstein, Clapper wrote that he was thinking about whether the NSA gathered the content of emails, rather than the metadata of the phone records – the record of calls to and from U.S. citizens and the length of those phone calls.
"I realized later Senator Wyden was asking about ... metadata collection, rather than content collection," Clapper wrote. "Thus, my response was clearly erroneous, for which I apologize."
"Sen. Wyden is deeply troubled by a number of misleading statements senior officials have made about domestic surveillance in the past several years. He will continue pushing for an open and honest debate," Caiazza said.
http://www.huffingtonpost.com/2013/07/02/james-clapper-nsa_n_3536483.html
http://www.techdirt.com/articles/20130701/12494623683/james-clapper-admits-he-lied-to-congress-even-his-excuse-is-misleading.shtml