Explosive increase in mobile data requests means Congress needs to act now on digital privacy

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Mobile phone providers responded to at least 1.3 million government requests for user data last year alone, reports the New York Times' Eric Lichtblau. The figures reflect data released to Congressman Ed Markey by AT&T, Verizon, Sprint, MetroPCS, Cricket, U.S. Cellular, Tracfone and C Spire.

The 1.3 million figure is an estimate; the total number of requests is likely significantly higher because so-called "emergency requests" are made informally and are therefore difficult to track. Furthermore, T-Mobile refused to provide Congress with figures, adding another likely hundreds of thousands of requests — though it did report that about half of all requests the company receives are oversight-free subpoenas, and that the number of requests it fields has risen steadily each year.

The actual number of people swept up in the cell phone surveillance could be ten, twenty or thirty times higher than 1.3 million because many of the law enforcement requests for data were for "tower dumps" — meaning police received subscriber information for all people who were in a cell phone tower's range of reception during the time period for which they sought records. In urban areas that could be thousands or tens of thousands of people per targeted request, meaning the real number of people affected by this often warrantless surveillance could easily reach into the tens of millions.

One measure of how rapidly police departments and federal law enforcement agencies have come to depend on (often warrantless) mobile subscriber information is the explosive growth in the amount of money it costs telecoms to respond to government data requests. AT&T reported collecting $8.3 million from government agencies to reimburse the cost of responding to surveillance requests last year; in 2007, just four years prior, that number was just $2.8 million.

That's likely in part because subscriber information can be obtained without going to a judge, and subscriber information increasingly reveals much more about us than does the spoken content of our telephone conversations. (See exactly what data the phone companies give police here.)

After all, why would the police waste time, energy and resources going to a judge to get a warrant to listen to your conversation if it could simply submit a subpoena to AT&T to find out exactly where you are right now, and the phone numbers of everyone you've communicated with this month?

The released records suggest police departments increasingly don't bother with meddlesome warrants or judges. Sprint alone reported that it received 500,000 subpoenas for subscriber information in 2011. Half a million! Again, those subpoenas require absolutely zero judicial oversight. And that's just one company.

The Sprint report also suggests that the intelligence community has been less than honest with the public about how many wiretaps the government has requested over the past five years. As Julian Sanchez points out, the government reported only 21,498 wiretaps over the past five years. That's funny, because Sprint says it alone has received 52,029 such requests.

We only began to get a sense of how big the warrantless mobile surveillance problem is after a 2011 nationally coordinated public records request by ACLU affiliates revealed that police nationwide were regularly skirting judicial oversight to obtain subscriber information from cell phone companies.

The Times' Lichtblau filed a story in March 2012 describing the crisis and its local manifestations, using documents provided by the ACLU. He cited a number of troubling examples from police departments nationwide:

In cities in Nevada, North Carolina and other states, police departments have gotten wireless carriers to track cellphone signals back to cell towers as part of nonemergency investigations to identify all the callers using a particular tower, records show.

In California, state prosecutors advised local police departments on ways to get carriers to “clone” a phone and download text messages while it is turned off.

In Ogden, Utah, when the Sheriff’s Department wants information on a cellphone, it leaves it up to the carrier to determine what the sheriff must provide. “Some companies ask that when we have time to do so, we obtain court approval for the tracking request,” the Sheriff’s Department said in a written response to the A.C.L.U.

And in Arizona, even small police departments found cell surveillance so valuable that they acquired their own tracking equipment to avoid the time and expense of having the phone companies carry out the operations for them. The police in the town of Gilbert, for one, spent $244,000 on such equipment.

Therefore police departments and federal law enforcement are regularly accessing our location information and other details about us from our mobile companies, much of it absent any court oversight whatsoever. And sometimes police don't even bother to go to the phone companies, opting to use tricky IMSI catchers to track you and your mobile data themselves.

Now that we know, we need to act

Unfortunately, the law governing our electronic communications privacy hasn't been updated since 1986, so naturally the police are making the most out of a government-friendly regulatory climate. Furthermore, in the decade after 9/11 a number of bad laws have been passed allowing prosecutors and police wide latitude to access our private information absent judicial oversight. Instead of clamping down on this free for all, Congress has enabled it by reauthorizing terrible laws like the Patriot Act and the FISA Amendments Act.

But the Supreme Court has now spoken on warrantless GPS tracking, and made it clear that we need to update the law to reflect our changing technology. It's time for us to heed Justice Sotomayor's warning and bring Fourth Amendment-inspired statutory protections into the digital era.

GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. … Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse.

There's a way you can take action right now to let your representatives know that they need to deal with this issue immediately. Tell your Congresspeople and Senators to co-sponsor and support the GPS Act.

If the police want to track your physical location using your mobile phone data, they need to get a warrant. It's simple. Unfortunately, as these records reveal — thanks largely to the ACLU and Congressman Markey — warrants are often the last thing on the government's mind when it wants to track your physical location.

Let's change that.