The Government is Collecting Geolocation Data from Your Cellphone

Just a warning. Reliable sources indicate that the information the U.S. Government is collecting mobile phone geolocation data under a secret interpretation of Section 215 of the Patriot Act. From Reason's blog:

. . . [Senators] Wyden and Udall, both members of the Senate Intelligence Committee, have been warning that the Obama administration relies on a "secret interpretation" of the PATRIOT Act to justify surveillance that the general public does not realize is happening. The interpretation involves Section 215 of the law, which authorizes the FBI to demands business records or any other "tangible things" it deems useful "for an authorized investigation. . .

Of course that miserable hack at DOJ is part of the fun. Wyden and Udall condemn Justice's denial of a secret interpretation as "extremely misleading."

Why do some think that this has to do with geolocation? From the Cato Institute' Julian Sanchez:

Department of Justice has developed a novel legal theory, known as the “hybrid theory,” according to which law enforcement may do some types of geolocation tracking of suspects’ cellular phones without obtaining a full-blown probable cause warrant. The “hybrid theory” involves fusing two very different types of surveillance authority. “Pen registers” allow the monitoring, in real time, of the communications “metadata” from phones or other communications devices (phone numbers dialed, IP addresses connected to). For cellular phones, that “metadata” would often make it possible to pinpoint at least approximately—and, increasingly, with a good deal of precision, especially in urban areas—the location of the user. Federal law, however, prohibits carriers from disclosing location information “solely” pursuant to a pen register order. Another type of authority, known as a 2703(d) order, is a bit like Patriot’s business records authority (though only for telecommunications providers), and is used to compel the production of historical (as opposed to real-time/prospective) records, without any exclusion on location information. The Justice Department’s novel theory—which I discussed at a recent Cato event with Sen. Wyden on geolocation tracking—is that by bundling these two authorities in a new kind of combination order, they can do real-time geolocation tracking without the need to obtain a full Fourth Amendment warrant based on probable cause.

Further, there is reason to believe that the information isn't being used in any particular investigation. From the Campaign for Liberty, more from Wyden and Udall:

Section 215 authorities are not interpreted in the same way that grand jury subpoena authorities are, and we are concerned that when Justice Department officials suggest that the two authorities are ‘analogous’ they provide the public with a false understanding of how surveillance law is interpreted in practice.

Why the discussion of grand jury rules? The U.S. Attorney's manual provides that:

It is improper to utilize the grand jury solely as an investigative aid in the search for a fugitive in whose testimony the grand jury has no interest.

Wyden and Udall conclude that:

...locating subjects for the benefit of law enforcement (rather than as a means of securing their testimony before the grand jury) is one of the few things so expressly and specifically excluded.

From this we might conclude that the government is making use of geolocation data for other than ongoing criminal investigations. I could be wrong, but I have to trust my instincts on this one.

I would like to thank this man, Julian Sanchez, for working diligently to work on the behalf of all citizens in the arena of electronic freedom.

Patriot Act Debate - Gingrich vs Paul

Well this is unfortunate. Ron Paul and Newt Gingrich debate the Patriot Act in tonight's debate. I agree with Paul's position, but Gingrich gets the best of him, in my opinion. The use of Timothy McVeigh undermines Paul's argument, but the Patriot Act would not have prevented the Oklahoma City bombing. If we are serious about the War on Terror, we will pay for the judicial oversight to issue warrants and supervise the executive branch's prosecution. This doesn't have to be an either/or proposition. My objection to the Patriot Act is the unsupervised powers given to the executive branch. Some of the powers granted were already available, they just required warrants, so the Act seemed like a sneaky way to expand government power.

Susan Davis Flips on Patriot Act

Dean has had a great series of articles, titled WW()D? comparing Obama's administration to Bush's, and failing to find significant differences. On this theme, the President wants a re-authorization of the Patriot Act. Today, the House of Representatives narrowly voted not to reauthorize some provisions on an emergency basis, but it will certainly pass in the normal manner. From Wired Magazine, (H/T Dave Maass) here are the expiring provisions of the act.

• The "roving wiretap” provision allows the FBI to obtain wiretaps from a secret intelligence court, known as the FISA court, without identifying what method of communication is to be tapped.

• The “lone wolf” measure allows FISA court warrants for the electronic monitoring of a person for whatever reason — even without showing that the suspect is an agent of a foreign power or a terrorist. The government has said it has never invoked that provision, but the Obama administration said it wanted to retain the authority to do so.

• The “business records” provision allows FISA court warrants for any type of record, from banking to library to medical, without the government having to declare that the information sought is connected to a terrorism or espionage investigation.

With proper oversight, the first measure is probably needed in today's environment of multiple devices and forms of electronic communications. But, the last two appear to be unconstitutional to my admittedly untrained eye. The relevant quote you were looking for:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

I think it's fair to say that one's email is the modern equivalent of one's papers?

But notice how Democrats now sound like Republicans. Here is Susan Davis' (D-CA and my congressperson) on why she voted to reauthorize:

“I have faith that President Bush Obama will responsibly use the tools contained in the legislation needed to help prevent terrorist attacks, and not to spy on average Americans. The law also requires a significant level of court and congressional oversight.”

[Strike-through mine.] This sounds suspiciously like the arguments made by Republicans in the Bush era, who argued that the President would use the power wisely. At the time, I asked my conservative friends how a potential President Hillary Clinton might use these powers. That got some traction. Why is the bill so great now, when Susan Davis voted against it in 2006. Mere change of administration? Fabulous logic.