By Mark Nelson

There are over 200 million cell phone subscribers in the United States. Each subscriber generates data, including transmissions to cell phone towers detailing the subscriber’s geographic location. Not surprisingly, how and by whom this information is accessed raises privacy concerns.

Location-tracking features on cell phones have the potential to invade privacy at a high level, although this is not always a bad thing. In 2005 the Federal Communications Commission “mandated that the majority of wireless providers be able to locate 911 calls within 100 feet of the originating cellular phone so that emergency services can find the callers.” This “E-911” feature requires carriers to “either provide the location information that resides in the cellular network (triangulation of location based on the distance of the cell phone’s signal to nearby cellular towers), or they can rely on satellite data from global positioning system (GPS) chips” on the phone. This feature has the potential to help people who are stranded or in accidents.

Location-tracking technology also creates the possibility for new kinds of targeted advertising—like texting drivers reviews of nearby restaurants before he arrives at the next freeway exit. Unfortunately, for this to be effective the company would need information about the driver’s interests and geographic location, which might disturb some users. Protective parents, on the other hand, are more likely to accept reduced privacy in order to track their child’s whereabouts. For example, a “parent would be able to turn on their computer and locate their child and even watch as the child travels from place to place.” Social networking sites are also planning to offer features to track friends, although this sounds like a feature that would be of more interest to stalkers than friends.

Most significantly, law enforcement is interested in using cell phones to track individuals. In 2005 Federal judges began deciding whether or not to allow “government investigators to track a citizen via cell phone in real time without agents showing probable cause.” Generally, the courts have held that cell phone tracking “reveals information about nonpublic places” and law enforcement needs to go “through the hoops necessary for getting a traditional search warrant.” The Justice Department argued that a cell phone subscriber “voluntarily transmits a signal to the cell phone company, and thereby ‘assumes the risk’ that the cell phone provider will reveal to law enforcement the cell-site information.” Following that reasoning, the Justice Department “commonly bundle[d] a request to track cell phones with orders to capture the dialing information of incoming and outgoing calls from landline or cell phones. Those orders only require investigators to certify that the information is likely relevant to an ongoing investigation.” But since “most of the orders are filed under seal to prevent targets from learning they will soon be tracked, little was known of the scope of, and legal justifications for, cell tracking orders.” The court’s rejection of the Justice Department’s reasoning has typically been critical, describing the Justice Department’s arguments as “contrived,” “unsupported,” “misleading,” and “perverse.”

However, since some legal uncertainty remains, the cell phone industry wants “clear, standardized rules governing cell-phone tracking.” Tracking cell phones enables the industry to help police in emergencies, but when the industry is faced with “daisy chain” orders, subpoenaing a cell phone user’s information, along with complete information of every person called from the phone or making calls to the phone, the industry does not think the orders should include everyone, like “the pizza guy.”

It is not surprising for technology to outpace legislation, but without clear legislation defining the limits of the Justice Department’s reach, “cell phones could be used for widespread tracking since it requires almost no manpower.” On the other hand, as the public becomes more comfortable with technology and understands that when they using such technology creates searchable data, public opinion may change and people may develop a lower expectancy of privacy. The users should be the one lowering the threshold, not the Justice Department overreaching the law.

In a recent alarming twist, “documents obtained by civil liberties groups suggest the feds can track cell phone locations without the help of providers.” The Justice Department allegedly instructs its investigators to use a “triggerfish” which poses as a cell phone tower in order to get information from nearby cell phones. One rationale put forward by the Justice Department for using this method is that they are gathering their own information, cutting out the need to go through the cell phone provider, which would require the same showing of cause need for a warrant. This “triggerfish” method prevents the subscriber and the provider from knowing that information has been gathered.

If the Justice Department is allowed to use “triggerfish” at their own discretion then they have no accountability before the courts, and they circumvent the case law which has been developed. Given the scathing rebukes by the courts, the Justice Department does not have a strong likelihood of respecting privacy rights in the future. Notably, the USA Patriot Act of 2001 already requires the Justice department to obtain a court order to use a “triggerfish” – how that standard will be enforced and the legitimacy of the Justice Department’s new efforts will be decided in the months to come.