special to Drug War Chronicle by investigative journalist Clarence Walker, [email protected]

In the wake of the US Supreme Court's January decision in United States v. Jones, in which the high court forbade the warrantless use of GPS tracking devices to surveil people's movements, law enforcement and the Obama administration are scrambling -- not to find ways to comply with the spirit of the ruling, but to find ways around it.

Police in many states have switched tactics by obtaining mobile data to zero in on someone's prior movement and by tracking them through their cell phones, usually without a warrant. Whenever a cell phone is used, it "pings" an electronic signal to the nearest cell phone tower, allowing law enforcement to use the cell phone to find or track people. And cell phones containing GPS devices, which are increasingly common, "ping" constantly.

In April, the  American Civil Liberties Union (ACLU) released an extensive study of state, federal, and local law enforcement's surveillance practices that illustrate how police track citizens through their cell phones. The findings were staggering. Warrantless cell phone tracking "has become a powerful and widely used surveillance tool for police officials, with hundreds of departments, large and small, often using it aggressively with little or no court oversight," the report found.

After poring over 5,500 pages of records in responses from over 200 local law enforcement agencies, the ACLU researchers reported that "only a tiny minority" -- 10 agencies total -- had obtained a warrant before tracking someone through his or her cell phone.

"What we have learned is disturbing," said ACLU staff attorney Catherine Crump, who helped file public information requests with some 385 law enforcement agencies. "The government should have to get a warrant before tracking a cell phone. Instead, what we found was that the cops track people with no supervision, or in some cases, mostly drug cases, the cop will go to court and only show that it would be relevant to an investigation, which is a lower standard."

The ACLU is calling for law enforcement agencies to desist from using cell phone tracking without a warrant, and is calling on state and federal lawmakers to pass legislation requiring a warrant before police use location tracking in non-emergency situations.

A bill to address the problem is pending in Congress. Senate Bill 1212, the Geolocation Privacy and Surveillance (GPS) Act, is sponsored in the Senate by Senators Ron Wyden (D-OR) and Mark Kirk (R-IL). Companion legislation in the House, House Resolution 2168, is sponsored by Reps. Jason Chaffetz (R-UT), Peter Welch (D-VT) and Jim Sensenbrenner (R-WI.). The bills would require law enforcement agents to obtain a warrant in order to access location information.

Another Senate effort, Judiciary Committee chair Senator Patrick Leahy's (D-VT) Electronic Communications Privacy Act Amendments Act, Senate Bill 2011, offers a partial repair of the problem. It includes a warrant requirement for real-time tracking, but not for historical location information.

The Obama administration disagrees that any action is needed. At a State of the Mobile Net conference held in May, Justice Department Deputy Assistant Attorney Jason Weinstein argued, "[t]he need for such warrantless cell phone tracking is important so it won't cripple the government and law enforcement."

The administration's lawyers insist that when a person turns on a cell phone, the information from the phone is transmitted through a third-party, such as the wireless carrier, and the user thus has no "expectation of privacy."

Warrantless cell phone tracking "should be illegal," said Washington, DC, appellate attorney Stephan Leckar, who successfully represented DC nightclub owner Antoine Jones in the case cited above.

In that case, the Supreme Court reversed Jones' conviction and sentence of life without parole in a cocaine trafficking case after they found substantial evidence that the FBI placed a GPS device on Jones vehicle for 28 days without a search warrant. When police monitored Jones vehicle without a warrant, the court said, "This violated his Fourth Amendment right against unreasonable search and seizure."

According to Leckar, the "third-party" doctrine is a means for law enforcement to get around the Fourth Amendment. "As the law reads," he said, the 'third-party' doctrine doesn't violate the Fourth Amendment. To change this, people will have to petition Congress to change that doctrine."

While privacy advocates like the ACLU's Crump argue that cell phone users should get the same protections against warrantless tracking as people subjected to GPS devices being surreptitiously placed on their vehicles, the Justice Department disagrees.

"There is no trespass or physical intrusion on a citizen's cell phone when the government obtains historical cell-site records from a provider," Justice Department attorneys argued in a brief in an appeals court case in February, adding that cell phone data are not as precise as GPS tracking data.

Most, but not all, recent state and federal court decisions in major drug cases have upheld the right of police to either track cell phones or search them for evidence in an investigation. In March, the US 7th Circuit Court of Appeals upheld a warrantless search of a cell phone by Indiana police, a phone belonging to a  meth dealer identified as Abel Flores Lopez. Flores was given ten years in federal prison. His co-defendant Alberto Santana Cabrera received the toughest punishment. Santana got 75 years after failing to assist the government with valuable information on other drug dealers.

But federal judicial opinion isn't unanimous. Last year, in a blistering one-page ruling, US District Court Judge Lynn Hughes of the Southern District of Texas in Houston declared "that the law allowing the government to obtain cell phone records without a warrant is unconstitutional."

In that case, federal prosecutors had subpoenaed MetroPCS and T-Mobile to hand over sixty days of cell phone location data belonging to drug suspects. "The records would show the date, time, called number, and location of the telephone when the call was made," Hughes noted.

As the law now stands, cell phone customers who value their privacy are at the mercy of law enforcement and their wireless service providers. And the wireless service providers are all too happy to work with law enforcement voluntarily, and turn a tidy profit doing it.

Our favorite carriers, including AT&T, Verizon, T-Mobile and Sprint, are in on the action by selling information to police about a person's whereabouts, including the sale of private text messages and cell tower data, which pinpoint the location where someone is using a cell, the New York Times reported in March. Some companies are marketing surveillance fees to law enforcement to spy on targets even though wireless carriers declare that they don't sell their customers' information to police.

The Times found that T-Mobile charges law enforcement $150 per-hour for cell phone data that shows the approximate location of the tower that a cell phone "pings" off of when the user makes a call. It found that Alltel provides a faxed listing of an electronic "Tower Dump" for specific times and dates. The listing is "no charge," but the company charges a flat rate of $500 for those searches.

Verizon Wireless, on the other hand, charges  $30-$60 for 15 minutes' worth of tower data, while AT&T charges $75 hourly (a minimum of two to four hours per tower) for a Cell Tower Dump or Cell Site Usage Report. Cell Site Usage also includes subscriber information for the location, date and time when a phone was used.

The Times also found that Sprint once billed the Raleigh, North Carolina, Police Department at a "reduced rate" of $50 for an historic tower search and added $30 more for a search of "L-Site GPS pings," while the ACLU reported that Sprint had billed the Phoenix Police Department $460 for the GPS "pings" over a two-day period in 2009.

"The bottom line is that our mobile phone companies should be working for us, their customers, not the police, says Nicole Ozer, an ACLU staff attorney.

Not only are the wireless providers profiting from your privacy by working with the police, they are lobbying to be able to continue to do so. Even as the debate rages over warrantless cell phone tracking, cell carriers are geared up to oppose legislation that would force the companies to publicly report the number of times their employees provide cell phone location information to police and federal agents.

One important proposal is California Senate Bill 1434, introduced by Sen. Mark Leno (D-San Francisco), which would prohibit carriers from revealing data to police without a warrant. Wireless providers are joining together to fight it.

"These reporting mandates would unduly prevent us from insuring the public's safety and saving lives," AT&T, Sprint, and T-Mobile said in a joint statement.

The battle continues. Motivated by the ACLU research and news reports on the controversy surrounding  warrantless cell phone tracking, US Senator Al Franken (D-Minnesota) recently convened a Senate Judiciary Committee hearing to gather support for the GPS Act. At the hearing, Franken unveiled a letter he had written to Attorney General Holder seeking information on Justice Department cell phone tracking activity, what the department's stance on the standard for requests for historical location data (cell sites, GPS data), and whether the department had changed its practices in the light of the Jones decision.

He is still awaiting a response from Justice.

On the legal front, with state and federal courts split in their decisions on whether warrantless phone tracking violates the Fourth Amendment, the tens of millions of Americans who use cell phones and smart phones will have to wait for the Supreme Court to be the final arbiter. In the meantime, they could just be tracking you -- warrant or not.