Privacy SOS

Executive branch needs to sit down with this “you have no privacy rights” business

When Senator Ron Wyden speaks about surveillance programs, listen. That's the lesson from the latest NSA leak story, revealing a global cell phone location person tracking and relationship mapping dragnet.

After the first Snowden leaks in June 2013, Wyden began making noise about bulk location tracking. He couldn't say explicitly what he knew or he'd lose his clearance, but he could ask very specific and sometimes leading questions. Particular Wyden comments led many surveillance watchers, me included, to assume the government operates a cell phone location tracking dragnet.

Listen to the Wyden code.

From the Washington Post's Barton Gellman and Ashkan Soltani: "NSA tracking cellphone locations worldwide, Snowden documents show."

One senior collection manager, speaking on condition of anonymity but with permission from the NSA, said “we are getting vast volumes” of location data from around the world by tapping into the cables that connect mobile networks globally and that serve U.S. cellphones as well as foreign ones.

The NSA has no reason to suspect that the movements of the overwhelming majority of cellphone users would be relevant to national security. Rather, it collects locations in bulk because its most powerful analytic tools — known collectively as CO-TRAVELER — allow it to look for unknown associates of known intelligence targets by tracking people whose movements intersect.

Still, location data, especially when aggregated over time, is widely regarded among privacy advocates as uniquely sensitive. Sophisticated mathematical techniques enable NSA analysts to map cellphone owners’ relationships by correlating their patterns of movement over time with thousands or millions of other phone users who cross their paths. Cellphones broadcast their locations even when they are not being used to place a call or send a text.

The Department of Justice's stated position on Americans' cell phone location privacy is that we have none. Unfortunately, in July 2013 the Fifth Circuit Court of Appeals agreed.

And it's not just the NSA doing it. All levels of law enforcement obtain cell phone location data for surveillance and investigative purposes, often without warrants or judicial oversight. Challenges to warrantless location tracking are working themselves through the courts, resulting in a patchwork of laws nationwide. In June 2013 Montana became the first state in the nation to require a warrant for cell phone tracking; Maine soon after joined it. We need to do the same in every state — if you live in Massachusetts take action to pass the Electronic Privacy Act now.

At the federal level, there's currently a big push to modernize the Electronic Communications Privacy Act, to require a warrant for all content. As my colleague Chris Calabrese puts it, believe it or not, "the privacy of many of your electronic communications has a six-month expiration date." ECPA reform ensures that local police and prosecutors aren't going through much of your inbox and text history without a warrant.

The USA Freedom Act, meanwhile, will ban bulk phone spying nationwide when we get it passed and signed into law.

Both of these pieces of reform are critical to get the ball rolling for a deeper undoing of the surveillance apparatus. If we want to see anything resembling a free future, these measures must pass. We need to send a strong message to both courts and the executive that warrantless bulk spying and tracking is unacceptable and won't be tolerated in our society. We want freedom, and that ain't it.

It's a good thing that we have people like Senator Wyden to drop us hints about what's going on in the shadowy surveillance state, but now, thanks in large part to Edward Snowden, we know more than enough to act. The time is now.

© 2021 ACLU of Massachusetts.