Justice Department to defend warrantless cell phone tracking

Many of these difficult legal questions could be avoided if Congress would simply pass legislation governing this method of investigation.<p>Right now, all over the country, the FBI obtains sealed (secret) court orders to obtain <i>real time</i> cell site data under a "hybrid theory" combining the Pen/Trap Statute (law for obtaining incoming and outgoing phone numbers) and Stored Communications Act (law for obtaining stored subscriber information from ISPs). However, Pen/Trap says location data cannot be obtained through its operation and the SCA only permits disclosure of "historical" not real time information.<p>The result is, the FBI obtains information to track individuals under a standard well below probable cause from a magistrate judge. The orders are sealed, and because the order applications are made ex parte, their legality has never been litigated in court or given meaningful judicial review.<p>Magistrate Judges Stephen Wm. Smith in Texas and Orenstein in New York were the first judges to question the government's theory and deny applications. An application Smith denied in 2010 is the subject of this appeal.<p>This is Smith's Congressional testimony from 2010 which gives a good (and readable) overview of the problems in the current system: <a href="http://or.fd.org/Sady/Judge%20Smith%20testimony.pdf" rel="nofollow">http://or.fd.org/Sady/Judge%20Smith%20testimony.pdf</a><p>And here is a law review article that deals with highly convoluted legal issues: <a href="http://www.arizonalawreview.org/pdf/53-2/53arizlrev663.pdf" rel="nofollow">http://www.arizonalawreview.org/pdf/53-2/53arizlrev663.pdf</a>

If a cell phone company really had balls, they'd make a website where you can see realtime and historical location data for every cellphone owned by every elected official and federal judge. They have "no privacy interest", after all, so I guess that would be no big deal...

If we're innocent, why do we need to be tracked? If they have no suspicion of guilt, then for what reason do they need data about us?<p>I want the protection of 'requiring a judge's approval' before police are allowed to track me. The risk of having my self or my information at the mercy of either corrupt, or easily hacked, law enforcement is too great.

This is a difficult issue. For most of us, our cell phone is where our body is, so you're tracking the person. It is easy to imagine ways that this data could be abused.<p>On the other hand turn it around. Suppose that there was a rash of burglaries and you were the investigating officer. Wouldn't you want to be able to find all cell phones that were in proximity to a significant number of the burglaries at the time that they happened? This kind of speculative data mining could be a good source of leads, but you can't engage in it unless you have a lot of data on a lot of innocent people. (And, as always with data mining, until you have the data, you don't know what questions you want to ask of it.)<p>But the problem is that if the data is centralized and accessible, the minority who would abuse it will access it as well. And the worse abusers are people like Hoover and Nixon - people who will use this data to try to push political aims.

I hope this goes to the Supreme Court. I doubt it will be declared constitutional. Most people aren't even aware the Government is doing this, or at best they think it's just a silly conspiracy theory they've heard from their friends, but don't really believe it. When that's the situation, it should definitely be declared unconstitutional.

Are phones as crackable as they used to be?<p>I remember reading stories about how if you leave your bluetooth on, you're basically leaving your phone wide open. These days though, most phones require four digit passcodes and what I assume are fail2ban-like features. Am I wrong to assume that, or does it not matter for other reasons?<p>I know TV shows like Person of Interest use technology more as a plot device than as a display of possibility, but the idea of forced pairing was a thing at <i>some</i> point, wasn't it?