After dodging the question for months and flat out refusing to answer the ACLU's public records requests seeking clarity on it, the FBI has finally ‘fessed up and admitted that it does not obtain a probable cause warrant to demand our location information from cell phone companies. While Director James Comey’s admission yesterday doesn’t provide a complete answer to questions about how the FBI interprets its legal obligations with respect to location tracking (it doesn't deal with the question of Triggerfish or Stingray spying, for example), it provides a bleak—although totally predictable—window into the shadowy world of FBI surveillance. When it comes to FBI powers, the motto seems to be, "If judges or legislatures haven't explicitly required we get a warrant, then we won't!"
During yesterday’s 'Global Threats' hearing before the Senate Intelligence Committee, Senator Wyden returned to a subject the spies probably wish he would stop harping on: the government’s legal authority for domestic location tracking. Specifically, Wyden wanted an answer to a question he’s been asking for months now: Does the FBI need a probable cause warrant before it tracks our cell phone locations? In an answer that will not surprise the followers of Wyden’s Code, the answer is no.
Here’s the relevant exchange:
Senator Wyden: “I’d like to ask you about the government’s authority to track individuals using things like cell site location information and smartphone applications. Last fall the NSA director testified that ‘we, the NSA, identify a number, we can give that to the FBI. When they get their probable cause, then they can get the locational information they need.’ I’ve been asking the NSA to publicly clarify these remarks but it hasn’t happened yet. So. Is the FBI required to have probable cause in order to acquire Americans’ cell site location information for intelligence purposes?”
FBI Director Comey: “I don’t believe so, Senator. In almost all circumstances we have to obtain a court order, but the showing is a reasonable basis to believe it’s relevant to the investigation.”
Wyden: “So you don’t have to show probable cause. You have cited another standard. Is that standard different if the government is collecting the location information from a smartphone app rather than a cell phone tower?”
Comey: “I don’t think I know—uh—I probably oughta ask someone who’s a little smarter, on what the standard is that governs those. I—uh—I don’t know the answer sitting here.”
Wyden: “My time is up. Can I have an answer to that within a week?”
Comey: “You sure can.”
While it's not surprising, Director Comey's declaration that his agents do not acquire probable cause warrants before tracking our physical locations through our cell phones should spark immediate alarm nationwide—and not just because the government doesn't get warrants for this invasive surveillance. What's arguably even more troubling is how the Director described the legal standard his agents apply before conducting cell phone location tracking. The key word is "relevant."
When officials from the NSA and FBI defend their dragnet phone surveillance program, which they claim is authorized under Section 215 of the USA Patriot Act, they say that they need access to records of every single call made in the United States because every single call made in the United States may be or is relevant to investigating terrorism. That's a pretty ridiculous claim, but it's the claim the entire dragnet rests upon.
Consider James Comey's comments about location tracking authority within the context of the government's definition of relevance. If records of every phone call are relevant, isn't every piece of cell site location information also relevant? If relevance is the standard by which the government can obtain our location information via our cell phones, what's to stop the government from collecting our cell site data in bulk, like it does with our phone records?
Various officials have publicly denied that a dragnet location tracking program exists, at least under 215 authority. But what if the administration is using a different authority to conduct bulk location tracking? What if the FBI, say, after a terrorist attack in Boston, temporarily extends this relevance standard to location data, sucking up millions of people's location data over weeks or months because of one crime?
There's perhaps no surveillance nightmare so inimical to a free society as the possibility that the FBI has ready access to information showing where we are every moment of the day, and the power to turn back the clock to determine where we were last week, last month, or last year, down to the minute. But according to the Director of the FBI, there's nothing stopping the bureau from doing that, as long as agents deem it 'relevant' to an investigation.
If the government extends its definition of relevance from 215 to cell phone tracking, that means the entire country is effectively wearing a GPS tracking bracelet. Is that possible? According to Ron Wyden, "The government's authority is limitless."