All right, y'all, welcome back to the show.
Our next guest is Allie Bohm from the ACLU.
She is an advocacy and policy strategist there.
Welcome to the show, Allie.
How are you doing?
Good, how are you?
I'm doing great.
I really appreciate you joining us today.
No worries.
Thanks for having me.
All right, so here's a horrifying article from the other day, two days ago.
Police are using phone tracking as a routine tool.
Eric Lickblau in the New York Times, the headline could be, huh, it turns out Scott wasn't a paranoiac after all, since that's what I've been saying since 1994.
That's all you got to do is triangulate you and then you just have a big map on the wall and have everybody identified by their phone number, no problem, and connected to their bill.
And they can just, you know, track us all down.
We have our own tracking device we carry with us on purpose.
Yeah, I mean, in some ways your anticipation was prescient, and it's true.
Our cell phones do track our location.
They register our location every approximately seven seconds with the nearest cell phone tower so that our calls can go through.
If you have a smartphone, you've also got a GPS tracker on you.
And, you know, the information that they're registering is very, very personal.
Your location might reveal whether you are going to the gym, but also whether you're going to a reproductive health clinic, or the church, or the mosque, or your psychologist's office, or any number of things.
So we think that information is very, very personal, and we believe that law enforcement should obtain a probable cause warrant in order to access that information.
Unfortunately, what we found, and we queried about 383 law enforcement agencies across the country about what their cell phone location tracking practices are, we found that most of them are tracking location, the vast majority are, and that the legal rubric they're using really varies across the board tremendously.
On the upside, there are some folks out there who are getting probable cause warrants, and I want to say that because that means that it's possible to do sort of effective law enforcement and to reach their goals and still protect people's privacy and only be going after that information where there's good reason to believe that a search is going to turn up evidence of a crime.
But the vast majority of agencies out there are tracking this information on lower standards, or the rules aren't quite clear, or they're following more than one standard, or my personal favorite is Weber County, Utah, which informed us that each provider has a different system for authorizing police use of location information, and we comply with whatever that cell phone provider requests.
If your cell phone provider is like, give us a warrant, they'll get a warrant.
But if your cell phone provider is like, hey, buddy, sure, I'll give you this, you know, the cell phone companies do have...
Well, you got to hand to them, the cell phone or the telecommunications companies did write the law, so it makes sense.
Well, you know, the cell phone company, I do think that, you know, the law needs updating at the time that the Electronic Communications Privacy Act, which governs, you know, our sort of online and other electronic communications was written.
It was in 1986.
Most of us were not carrying cell phones in those days, and those cell phones were certainly not getting as precise location information.
There were way fewer cell towers.
They didn't have GPSs.
And so it's really time for Congress and the state legislatures to revisit these laws, either by updating ECPA, the Electronic Communications Privacy Act, or by passing the Geolocation Privacy and Surveillance Act, which would specifically require law enforcement to obtain a warrant in order to access cell phone location information and GPS location information.
There are similar bills pending in state legislatures across the country.
There are at least 11 states considering some bill having to do with some facet of location tracking.
If you go to our Action Center, which is aclu.org/action, you can encourage Congress to take action on the Geolocation Privacy and Surveillance Act, which we affectionately call the GPS Act, and also to update ECPA.
So there's definitely room for lawmakers to step in and give the cell phone companies a little more guidance about what to do.
OK, well, sometimes it's funny to me how naive I still am.
I realize just now that there was somewhere in my head thought that a judge would have said that you can't do that a long time ago or something that would have been binding.
You know, just having cops apparently having access to not who they're looking for, even, but just anybody.
Well, there are there are judges who stepped in and said that.
And there there's been several courts in New York, in Texas, and there are a few others who, you know, the magistrate judges or sort of lower courts that are, you know, individual judges who are authorizing warrants whose decisions are not binding on their entire circuit have said you need a warrant in order to get this information.
You need a probable cause warrant.
However, their decisions, again, aren't binding on their entire circuit.
And what we're seeing is that the federal government is and the state government are choosing which ones which cases they're appealing when they get unfavorable decisions.
First of all, there's a circuit that some judges say one thing, some judges say another.
And the law enforcement agencies are only appealing where they think they're going to get a favorable decision.
That said, we just had the Supreme Court case on GPS location tracking.
This is the Jones case.
It was about attaching a GPS device to a car, and that was done without a warrant.
And all nine of the Supreme Court justices came out and said that attaching a GPS device to a car is a search under the Fourth Amendment and requires some sort of protection.
But what five of them said, which is interesting here, is that at least prolonged location tracking is a search under the Fourth Amendment.
And that could apply to cell phone location tracking, not just to attaching a GPS device to a car.
So what we're saying now is, you know, this really gives Congress and the state legislatures the opportunity to act and say, OK, look, we've got this.
You know, if this is challenged, it's going to be a problem.
So we need to have a state law saying our law enforcement agents need to get a warrant, or we need a federal law that says that.
And if I were a law enforcement agent, I'd be saying, hey, you know, I don't really know if this went up to the Supreme Court what the Supreme Court would be saying.
So I better go get a warrant just to be safe.
Right.
Well, they're working to eliminate the exclusionary rule all the time anyway, but I guess that's a different subject.
All right.
Now, so here's a couple of things real quick.
We got about two and a half minutes before we go out to break here.
First of all, you went around talk to all these law enforcement agencies and so forth.
Did you talk to regular people?
And I wonder, do you have any measure of their belief that the companies that they contract with for their cell phone service, for example, keep their information private?
I mean, unless the cops have some sort of a reasonable belief or probable cause or something that, you know, that their information is being kept secure.
So first of all, you know, the standard that we would call for is probable cause, which is a higher standard than reasonable belief.
You know, we think that there needs to be good reason to believe that a search will turn up evidence of a crime.
That's really important to us.
But, you know, we had what we have found, you know, one of the documents that we received was a chart that the Department of Justice put together that shows how long different companies are keeping information, you know, are keeping cell phone location information.
And at least one company has been tracking location information and sort of hanging on to it since 2008, which, you know, leads us to believe that they're actually hanging on to it indefinitely.
The shortest time folks are hanging on to it is a year.
And when we got this chart, which has been publicized on our website, and you can go to aclu.org/location tracking and get sort of detailed information and more information there.
You know, I went through all of these cell phone companies who are in the charts privacy policies, and it actually doesn't say how long they're holding on to your information or under what rubrics they're sharing it.
They do have manuals for law enforcement that say, you know, here's what information we keep, here's how long, you know, here's how you get it, here's what you need to give us to get it, here's what it costs, here's what number you should call and who you should contact.
And those manuals also, again, go to aclu.org/location tracking, and you can see those manuals yourself.
But no, I think that people, you know, we haven't talked to a lot of people.
We've been sort of querying law enforcement agencies and putting it out there, but I think a lot of people should be disturbed and probably are disturbed that this information is just getting to the government under any number of standards.
My personal favorite is Lexington, Kentucky, where local local police, I'm sorry, hold it right there.
We'll get to Lexington and the different standards on the other side of this break with Allie Baum from the ACLU.
All right, y'all.
Welcome back to the show.
It's anti-war radio.
We're talking with Allie Baum from the ACLU about the cops using your cell phone to track you and the recent Supreme Court case about the GPS transmitters attached to people's cars.
They all ruled unanimously against that.
So the ACLU wants to say, hey, that's the same as using our cell phones against us when that's not why we have cell phones, you know, kind of thing, and see if they can make some headway, even getting laws passed rather than just a court decision.
Get some laws passed limiting the power of the police to do things like this.
I was hoping, well, you were going to say something about a different standard that Kentucky uses that's particularly hilarious.
But then I also wanted to get you to clarify exactly whether we're talking about, you know, the cops have one computer that's just running all day, keeping track of everybody in town, or this is just if they're looking for Dave, then they type in Dave's cell phone number and he comes up.
They use this for fishing expeditions, looking for cars that are driving around in circles for suspicious reasons, or just if they have some kind of reason to begin looking, these kinds of technicalities.
Could you please elaborate?
Sure.
So what I was going to tell you about Kentucky, because I think this is fabulous, is if you're in Lexington, Kentucky, your local police are getting a warrant in order to track your location information, which is what we think they should be doing.
But if Kentucky State Police are looking for you, then they're not getting a warrant.
You know, I guess I want to emphasize that there are places across the country, and they're pretty diverse, Hawaii, Kansas, Kentucky, Nevada, New Jersey, you can see this is not a geographic cluster anywhere, where law enforcement agents in, you know, particular cities in those states are getting probable cause warrants in order to access cell phone location information.
So we know that law enforcement can do that and still sort of do effective policing.
And I would say, you know, for those cities, they really are saying, hey, a crime was committed, we have probable cause to believe that if we search for this person's cell phone location information, it's going to give us evidence of a crime.
What we're seeing in other places really runs the gamut.
There are folks who are getting location information based on saying, you know, hey, this is relevant to a crime.
It might just, you know, we might find out by looking at it that this person had nothing to do with the crime.
So in some places, folks are, you know, getting the information of a particular cell phone.
In some places, folks are saying, hey, we want the location information of every cell phone that has called this individual cell phone.
Or we want the information for every cell phone that was near this particular tower at this particular time.
So we've seen that in Tucson, Arizona, and in Cary, North Carolina, to name a couple of examples, but there have been some others.
There are also folks...
The most common way of getting cell phone location information is by communicating with the cell phone company and getting it from them.
There are, however, some law enforcement agencies, Gilbert, Arizona is one of them, who've purchased their own cell phone tracking technology.
And I sort of, I think about it like, you know, that game you play when you're a child where someone hides something in a room and your room goes, okay, you're getting hotter, you're getting hotter as you get closer to it.
You're getting colder, they've actually got a device that they can sort of drive around with, and as they get closer to the number they're trying to ping, it sort of beeps louder, which is an interesting device.
It's called a Triggerfish or a Stingray.
There's a bunch of different names for it.
So there are some law enforcement agencies that are buying those, and so they're actually bypassing the cell phone company and not going through the cell phone company at all to get location information.
All right.
But now, do you know whether they actually have systems where they're just kind of keeping track of everybody or, you know, looking, maybe just fishing around, looking for something to go do, that kind of stuff?
And I think, you know, you certainly look at like the article that I think Wired put out about the data center that the federal government is putting up in Utah, and I think that that might be worth looking at.
I think, by and large, you know, we're getting a lot, a lot of, we received a lot, a lot of invoices and a lot, a lot of, you know, cell phone companies' policies.
Probably local law enforcement agencies are not doing a whole lot of, you know, there are definitely a few who are getting all of the cell phones that ping off of a particular caller.
They're not quite good enough at it yet, really, right?
But I don't think they're doing, you know, the Utah data center yet, just because, you know, capacity-wise, they don't have the capacity for that.
Yeah.
All right.
Now, I was going to ask you, oh, I know what it was, I'm sorry, about the Patriot Act and the Freedom of Information Act stuff.
I'm not sure if everybody's familiar, but maybe they've heard by now there's a couple of senators who have come out saying that there's a giant scandal, a secret scandal the American people don't know about yet, but there is one, and it's about the way that the Justice Department is interpreting the Patriot Act, and specifically Section 215.
I was wondering if you could elaborate on that story for us.
So, you know, the answer is that we don't have a lot of answers yet.
You know, Senators Wyden and Udall have been writing letters to the Department of Justice and reaching out and saying, you know, look, when the public finds out about your interpretation of Section 215, they're going to be horrified.
There's this whole category of secret law.
You should tell us what it is.
This should be open to the public.
There should be a public debate on this.
And, you know, they've gotten some of their colleagues in Congress interested.
We ACLU have done a Freedom of Information Act request to try to get that secret interpretation, but so far that interpretation isn't out there in the world.
So, we can speculate about what it's about, and there are certainly people who think it pertains to location information or pertains to data mining of some persuasion.
But, you know, the truth is we don't have that information yet.
We have the Senators' warnings that there is this secret interpretation out there that would horrify us.
And, you know, we're doing our best and they're doing their best to try to bring that to public light.
Yeah, our previous guest, a retired Rear Admiral, was remarking about how each new overreach simply becomes the norm after no time at all.
So, all of a sudden we have to take off our shoes?
Fine.
We all just take off our shoes from now on.
That's just the kind of thing, the way it is.
The cameras go up.
They just stay up.
And that's the situation with the Patriot Act here where everybody thought, oh, wow, the Patriot Act, well, it was a terrible crisis, you know, the terrorist attack.
So, maybe, you know, but it was seen as a big deal at the time.
And, in fact, Congressman Bob Barr voted for it.
But he said he was promised that it would be the absolute ceiling on the FBI's powers from now on.
And, of course, in his words, it just became the new floor.
And so, it can only, I mean, and that was years ago now.
So, how far have they interpreted it now?
How many?
Well, maybe you could answer how far from terrorism have they been able to apply it?
What kind of other cases and what percentage of the cases under the Patriot Act aren't even about terrorism at all?
Well, you know, we have an infographic out on our website that I'm attempting to pull up.
We'll see how quickly I can get it here.
But the truth is that the Patriot Act powers have been used on a whole host of cases.
And the vast majority of them don't pertain to terrorism.
If you look just at the National Security Letter provision, there were between 2003 and 2005, the FBI made 53 reported criminal referrals to prosecutors as a result of 143,074 National Security Letters.
And just to give you a sense of what these prosecutions were, 17 were for money laundering, 17 were related to immigration, 19 involved fraud, and zero were for terrorism.
So, you know, there is no doubt that the Patriot Act powers are being used for more than just terrorism cases.
But obviously, you know, as this little statistic shows, actually.
Well, and that's only like the felony crimes outlining, but it also mandates all kinds of things where all sorts of private institutions have to turn over all sorts of information kind of preemptively on everyone, right?
It's not a not really a matter of statute, like the different ways that banks and major corporations have to keep their books, that kind of stuff.
But they have to disclose, not as a matter of criminal law, but like regulations.
That may be, you know, we focused mostly on the, you know, Section 215 National Security Letters, the spying powers more than we focused on, you know, the bank regulations that come with it.
But I will say for folks who are concerned about what government is turning over, or what government is requiring private companies to turn over about, you know, about individuals, keep an eye on the cybersecurity bills that are moving in Congress, you know, in the coming weeks, because a lot of those have information sharing policies that are very, very scary.
Well, we just had a tremendous victory along those lines, right against the last one or two that they tried to pass.
You think we can keep that up?
Sure, hope so.
I'm hoping that, you know, your listeners will, you know, keep up with us and keep up with the other groups who are doing great work.
You can go to aclu.org/action.
And, you know, both encourage Congress to protect our information when they're considering cybersecurity legislation.
And, you know, sort of more pertinent to this topic, to pass the Geolocation Privacy and Surveillance Act and require law enforcement to obtain a warrant in order to access cell phone location and GPS location information.
Great.
All right.
Well, thank you very much for your time on the show today, Allie.
I really appreciate it.
Thank you.
Everybody, that's Allie Bohm from the ACLU.
She is an advocacy and policy strategist there.
And check out their Action Center.
That's it for the show today.
See you all tomorrow.
Thanks.
