Tuesday, September 11, 2012

Justice Department Avoids Decision On Warrantless Cell Phone Tracking

Justice Department Avoids Decision On Warrantless Cell Phone Tracking

By Catherine Crump, Staff Attorney, ACLU Speech, Privacy and Technology Project at 3:04pm

Federal law enforcement has used people’s cell phones to track their movements for at least a decade, but even today there is no clear answer to whether the government needs a warrant to do so. Why? In part because the U.S. Justice Department appears to be pursuing a conscious strategy of trying to avoid a ruling on this question by a court of appeals.

Here’s how that happens: Federal agents track people without a warrant, and in some instances, are slapped down by some district courts for this (in our view and in the view of these district courts) unlawful behavior. But they refrain from taking those losses to the Courts of Appeals, perhaps because a ruling that they need a warrant would then become the law of the land in the territory of that appeals court, and they want to be able to continue to engage in warrantless cell phone tracking whenever they can.

This is not how the system is supposed to work. It deprives the appeals courts of the opportunity to fulfill their role of setting uniform standards, which in turn deprives the American public of their right to know whether the government needs a warrant to access such sensitive information.

We were pleased when the government recently filed such an appeal—and disappointed when it withdrew the appeal shortly after the ACLU had been granted leave to participate in the case. The lower court had ruled that the Fourth Amendment required the government to get a warrant when it sought to obtain at least 113 days’ worth of a person’s past movements from his cell phone provider. That was the right call because where people go reveals a great deal about them, and the Fourth Amendment needs to keep pace with changing technology. As Judge Garaufis wrote:

The advent of technology collecting cell-site-location records has made continuous surveillance of a vast portion of the American populace possible: a level of Governmental intrusion previously inconceivable. It is natural for Fourth Amendment doctrine to evolve to meet these changes.

When the government appealed, the ACLU, the New York Civil Liberties Union and coalition partner the Electronic Frontier Foundation were granted permission to present the arguments in favor of privacy to the appeals court. We were ready to explain why the Fourth Amendment’s prohibition on unreasonable searches and seizures forbids the government from obtaining cell phone location information without a warrant.

Unfortunately, the government has now withdrawn its appeal. We don’t know why it did so, but we do know the consequence: the chaotic state of the law will not be clarified. Whether the government needs a warrant will depend on which judge is on duty. This is not how the justice system is supposed to work.

The Justice Department persists in its strategy of not appealing cell tracking losses even though lower court judges have practically begged for the government to do so. Way back in 2005, a judge expressed “the full expectation and hope that the government will seek appropriate review by higher courts so that authoritative guidance will be given the magistrate judges who are called upon to rule on these applications on a daily basis.” Other judges have issued similar calls more recently, but to no avail. (The sole time the government did appeal a loss, the results were decidedly mixed.)

The American people deserve better. The government tracks cell phones all the time and all over the country, and whether it can do so without a warrant is a crucial Fourth Amendment question. Fortunately, the Justice Department has another shot. It recently filed a notice of appeal of a loss in a cell tracking decision in Texas. Let’s hope this time that it doesn’t withdraw it, and that the court has a chance to weigh in on a question of great importance to every American who carries a cell phone.

You can learn more about our efforts to uncover how law enforcement is using cell phone location data to track Americans, and can take action by asking Congress to support pending legislation that would require law enforcement to get a probable cause warrant before accessing location information and would also regulate the use of this information by businesses.

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The Newest Threat to Your Privacy When You Travel


Automated License Plate Recognition: The Newest Threat to Your Privacy When You Travel

posted by Brian Alseth, ACLU-WA Technology and Liberty Program Director on Wednesday, May 26th, 2010 at 9:31 am

Law enforcement agencies around the country and across the state have a powerful new tool to effortlessly identify and track you while you drive, and it is a real threat to your privacy.

Automatic License Plate Recognition systems or "ALPR" consist of cameras that are either mounted on a vehicle or a pole. The cameras capture an image of the license plate of every passing vehicle, including cars travelling in the opposite direction and cars parked along the curb. Software then converts the license plate image into text and the system compares the license plate number against a hot list of stolen cars, outstanding warrants, amber alerts, parking violations, suspicious persons, or anything else (we have heard reports of tow truck operators using these devices to identify repos). The hot list database can either be loaded before each shift, or wireless and real time.

When the ALPR matches a license plate, the system notifies the officer, who can immediately pull over the identified vehicle. Regardless of whether there is a match, the system stores the image, license plate number, date, time, and GPS location of every passing vehicle. The newest systems can process one plate per second, or nearly 30,000 plates for every eight-hour shift. A large law enforcement agency with ALPRs installed on even a small percentage of its vehicles could effortlessly record tens of millions of license plates per year.

ALPRs raise serious concerns to your privacy because of the system's ability to monitor and track the movements of ALL vehicles, including those registered to people who are not suspected of any crime. Without restrictions, law enforcement agencies can and do store the data gathered by the license plate readers forever, allowing them to monitor where you have traveled and when you traveled there over an extended period of time. In fact, a key selling point for ALPR vendors is the system’s ability to track drivers. As explained by the Los Angeles Police Department Chief of Detectives, the “real value” of the ALPR “comes from the long-term investigative uses of being able to track vehicles—where they’ve been and what they’ve been doing.” In other words, the cops want to data-mine your driving habits.

ALPR technology has been around for several years, but law enforcement use of the devices has exploded in the past couple of years due to technological advances and significant federal grant money made available. At least 18 Washington law enforcement agencies are using the devices, including the Seattle, Kent and Medina police departments, and the Washington State Patrol currently uses ALPRs at the Seattle and Bainbridge Island ferry terminals, to scan every boarding vehicle.

Currently, Maine and New Hampshire are the only states with laws restricting or limiting ALPR and ALPR data usage. The ACLU of Washington is actively investigating ALPR use in Washington state and will be working to protect your privacy. If you have specific information on how your local police department is using this new technology, please let us know, and keep checking back here for the latest news.


NSA Lawyer Questioned Over Cell Phone Tracking

  • July 26, 2011, 11:35 AM

NSA Lawyer Questioned Over Cellphone Location Tracking of Americans

Digits HOME PAGE »
  • By Jennifer Valentino-DeVries
Is the government using cellular data to track Americans as they move around the U.S.?
According to the general counsel of the National Security Agency, it may have that authority. Matthew Olsen, who is currently at the NSA and has been nominated to lead the National Counterterrorism Center, discussed the possibility at a confirmation hearing Tuesday morning in the Senate Select Committee on Intelligence.
Jin Lee/Bloomberg
“There are certain circumstances where that authority may exist,” he said. His comments came after Sen. Ron Wyden (D., Ore.) asked him several times whether the government has the authority to “use cell site data to track the location of Americans inside the country.”
Although Olsen acknowledged the possibility, he also said “it is a very complicated question” and that the intelligence community is working on a memo that will provide a better answer for the committee.
Sen. Dianne Feinstein, the California Democrat who chairs the committee, asked that such a memo be prepared in time for the committee’s first hearing in September, after the August recess.
The questions come after Sens. Ron Wyden and Mark Udall (D., Colo.) wrote a letter to the Director of National Intelligence James Clapper asking whether the agencies he leads, including the NSA and the CIA, “have the authority to collect the geolocation information of American citizens for intelligence purposes.”

How is ALPR data used?

ACLU wants to know how license plate data is used

By BRIAN WITTE Associated Press News Fuze



ANNAPOLIS, Md.—The American Civil Liberties Union is asking police agencies nationwide for details on how they store data captured by automatic license plate readers, which authorities say help fight crime and terrorism and are not used to stockpile information on all drivers.

A top concern, the ACLU says, is how long the location and movements of people are kept on file after cameras mounted on patrol cars or along roads on telephone poles and bridges photograph license plates. ACLU affiliates in 38 states and the District of Columbia have joined in asking for the information.

"The American people have a right to know whether our police departments are using these tools in a limited and responsible manner, or whether they are keeping records of our movements for months or years for no good reason," said Catherine Crump, staff attorney with the ACLU's Speech, Privacy and Technology Project.

In Maryland, state police keep data from the license plate readers for 24 hours, said Greg Shipley, a police spokesman. Then, the information is forwarded to the Maryland Coordination and Analysis Center, or "fusion center," where local, state and federal authorities work side by side to root out terrorism plots. The data can be kept there for up to a year unless a law enforcement need has been demonstrated in a legal case, said Maryland Assistant U.S. Attorney Harvey Eisenberg, coordinator of the Maryland Anti-Terrorism Advisory Council, which oversees the fusion center.

Officials are trying to strike a legitimate balance in preserving information, and storing the data is no different than preserving evidence in other legal cases, Eisenberg said.

"It's just a much more efficient and effective way to do that," Eisenberg said.

The ACLU said that while the use of the technology is growing around the nation, too little is known about how long the data can be stored.

"The concern is about 'Big Brother' and police potentially maintaining large databases about where innocent citizens drive every day," said Dane Claussen, executive director the ACLU office in Las Vegas.

The ACLU of Nevada is filing requests seeking records from some of the state's largest law enforcement agencies, including Las Vegas Metropolitan, Reno and Henderson city police and the Washoe County sheriff, Claussen said.

In Henderson, outside Las Vegas, city police reported success shortly after installing mobile license plate scanners in several marked patrol vehicles in June 2011. The first case involved an officer driving on a busy boulevard identifying a Chevrolet pickup as having been reported stolen in Las Vegas.

Henderson police spokesman Keith Paul said Monday his agency had not yet been asked by the ACLU for information.

In New Mexico, license plate readers are installed at the five points of entry where commercial truckers stop when they pass through the state. The readers check the truck's license plate and tap into government crime, safety and tax databases.

State inspectors are provided with information on whether the license plate is wanted in connection with a crime, according to New Mexico State Police Chief Robert Shilling. Inspectors also get real-time reports on the safety records of the trucking company and the individual truck, and whether state road taxes have been paid. The information is retained by the Department of Public Safety for six months and then deleted, Shilling said.

"We don't use it except for criminal justice purposes," said Shilling.

Vernon Herron, a retired commander of the Maryland State Police, said law enforcement's focus is on solving crimes, not storing piles of data for the sake of compiling information. The cameras have been instrumental in significant reductions in auto thefts and locating missing children through Amber Alerts, said Herron, who is now a policy analyst for the Center for Health and Homeland Security at the University of Maryland, Baltimore.

"It has been very successful in returning kids to their families," said Herron, who worked for 27 years with the Maryland State Police and as public safety director for Prince George's County. In that county, auto thefts were cut by about 40 percent in two years with the help of the cameras.


Associated Press writers Ken Ritter, in Las Vegas, and Barry Massey, in Santa Fe, N.M., contributed to this report.

Cell Phone law suit

* ACLU questions tracking suspects by cellphone location

* Case is latest in privacy versus technology disputes

* Appeals court upholds ruling against Justice Department

By Jeremy Pelofsky and James Vicini

WASHINGTON, Sept 6 (Reuters) - The U.S. government must tell the public how it tracked suspects by cellphone without having given a judge detailed reasons for the tracking in some cases, an appeals court ruled on Tuesday, in a case pitting new technology against privacy rights.

A leading civil liberties group claimed victory in one of several cases making its way through the court system weighing privacy rights against law enforcement using data available through the proliferation of new technologies like the Global Positioning System (GPS), cellphones and laptop computers.

"I highly doubt that the 90 percent of Americans who carry cell phones thought that when they got cellphone service they were giving up their privacy in their movements," said Catherine Crump, a lawyer for the American Civil Liberties Union who argued the case.

The group has argued that prosecutors are getting information about a suspect's location with a judge's approval -- but without a warrant providing probable cause, which is typically needed in criminal cases for a warrant.

The ACLU questioned how often prosecutors have used applications for such information and sued to get details, a challenge the Justice Department said would violate the privacy of those under investigation or prosecuted.

A federal judge in 2010 ruled the Justice Department must reveal those cases that used such information in which the suspect was convicted, a decision upheld by a three-judge panel of the U.S. Court of Appeals for the District of Columbia.

"The disclosure sought by the plaintiffs would inform this ongoing public policy discussion by shedding light on the scope and effectiveness of cell phone tracking as a law enforcement tool," Judge Merrick Garland wrote in the unanimous decision.


Disclosure would, for example, provide information about the kinds of crimes the government uses cellphone tracking data to investigate, the appeals court said.

Citing privacy rights, the district court judge refused to order the government to reveal other cases in which such applications were used, such as the acquittal of a suspect or a sealed case.

The appeals court sent that issue back to the lower court for more proceedings to determine the extent of those cases.

The Justice Department could appeal the ruling to the full appeals court or to the Supreme Court, which already has agreed to consider another privacy case involving new technology.

Later this year the Supreme Court will hear arguments over whether law enforcement should have obtained a warrant before attaching a GPS device to a suspect's vehicle.

Justice Department spokesman Charles Miller said the agency was reviewing the decision and had not decided on its next step.

After surveying several U.S. Attorneys' offices, the Drug Enforcement Agency and the Justice Department, some 255 cases were identified in which an application for cellphone location information was used.

The government has offered to identify the nature of the charges as well as whether a motion to suppress that information was filed and the outcome. The ACLU said it was open to ideas on how to provide the public details of the information as a possible settlement. (Editing by Howard Goller and Eric Walsh)

How ALPR works

Top 5 Next-Gen Cop Car Gadgets November 2007.
> Here are the five:
> 1. Carbon Motors E7
> 2. Project54 Voice-Command System
> 3. Automatic License Plate Recognition Cameras
> 4. StarChase GPS Launcher
> 5. Rumbler Intersection Clearing System
> Popular Mechanics article


3. Automatic License Plate Recognition Cameras
In any appraisal of high-tech policing, you're bound to brush up against Big Brother-worthy technology. Case in point: Automatic License Plate Recognition (ALPR), which is essentially cameras that run every single plate they see. According to Brian Shockley, vice president of marketing for Tennessee-based PIPS Technology, the leading manufacturer of ALPR, the most common configuration is a three-camera system. All of the cameras have a fixed position and focal length, with two facing forward—one scanning the lane to the right of the car, the other scanning the lane to the left—and a side-mounted camera intended for parking lots. Each camera sends a constant stream of infrared and full-color images back to a processor in the trunk, which searches them against current warrant lists, Amber Alerts and other records that are updated daily. "The officer gets results in near real time," Shockley says, "or about 20 milliseconds."
The cameras work at high speeds, with 180-mph differentials. So whether a car blazes by a stationary police car at 140 mph, or passes in an oncoming lane while both cars are doing 80 mph, the system should pick up the suspect's plates.
But here's where things get creepy: Since each agency determines how long to keep the reams of data collected daily by each ALPR system, investigators could potentially search through thousands of drivers in a given area, during a given period, to help track down a hit-and-run driver. And PIPS sees the technology being installed on nonpatrol vehicles as well, such as street cleaners. Nothing, in fact, is sacred.
Short-Term Impact: PIPS hasn't provided exact numbers, but despite its relatively high price tag—a three-camera system costs around $25,000—ALPR systems are already in use across the United States, including agencies in California, Arizona, Texas and New Jersey.
Read more: Top 5 Next-Gen Cop Car Gadgets - Popular Mechanics


United States


In the United States, ANPR systems are more commonly referred to as ALPR (Automatic License Plate Reader/Recognition) technology, due to differences in language (i.e. "number plates" are referred to as "license plates" in American English)

Jurisdictions in the U.S. have stated a number of reasons for ALPR surveillance cameras, ranging from locating drivers with
  • suspended licenses or
  • no insurance, to
  • finding stolen vehicles and
  • "Amber Alerts".
With funding from the insurance lobby, Oklahoma introduced ALPR with the promise of eliminating uninsured motorists, by integrating it with its existing PikePass hybrid RFID/OCR toll collection system, and unmarked police vehicles used for intelligence gathering. [22] [23] Oklahoma replaced all license tags with ALPR-compatible plates in 2009. In Arizona, insurance companies are helping to fund the purchase of ALPR systems for their local law enforcement agencies to aid in the recovery of stolen vehicles.

Other ALPR uses include
  1. parking enforcement, and
  2. revenue collection from individuals who are delinquent on city or state taxes or fines.
The technology is often featured in the reality TV show Parking Wars featured on A&E Network. In the show, tow truck drivers and booting teams use the ALPR to find delinquint vehicles with high amounts of unpaid parking fines.

A recent initiative by New York State deployed ALPR systems to
  • catch car thieves by tracing suspect plates back to forged documents.
  • Police from Albany, New York also scan vehicles in their parking lots to check visitors for warrants.[24]
  • In addition to the real-time processing of license plate numbers, ALPR systems in the US collect (and can indefinitely store) data from each license plate capture. Images, dates, times and GPS coordinates can be stockpiled and can
  • help place a suspect at a scene,
  • aid in witness identification,
  • pattern recognition or the tracking of individuals.
  • Such data can be used to create specialized databases that can be shared among departments or individuals (such as insurers, banks or auto recovery "repo-men".[25])
  • Specialized databases can also be used to compile personal information on individuals such as journalists[26] suspected gang members, employees of a business, patrons of a bar, etc., and be shared by E-mail or portable flash media.

From time to time, states will make significant changes in their license plate protocol that will affect OCR accuracy. They may add a character or add a new license plate design. ALPR systems must adapt to these changes quickly in order to be effective. For the most part, however, the North American design will be based on a variation of the "Zurich Extra Condensed" font.[27]

Another challenge with ALPR systems is that some states have the same license plate protocol. For example more than one state uses the standard three letters followed by four numbers. So each time the ALPR systems alarms, it is the user’s responsibility to make sure that the plate which caused the alarm matches the state associated with the license plate listed on the in-car computer.