Privacy SOS

Today in location tracking: secrecy, outlandish federal obstruction, and the possibility of tracking on a mass scale

Photo credit: Ed Schipul

A lot happened in the world of privacy and technology today.

First off, my colleagues in Florida and at the national ACLU succeeded in convincing a court to release previously sealed records pertaining to the Tallahassee police department’s use of a cell phone sniffer, also known as a stingray. The information revealed is astonishing. Police used the stingray device about once every five days between the spring of 2007 and August 2010, the new information shows. And check out how they’re using it, as relayed by ACLU attorney Nate Wessler:

In this case, police used two versions of the stingray — one mounted on a police vehicle, and the other carried by hand. Police drove through the area using the vehicle-based device until they found the apartment complex in which the target phone was located, and then they walked around with the handheld device and stood “at every door and every window in that complex” until they figured out which apartment the phone was located in. In other words, police were lurking outside people’s windows and sending powerful electronic signals into their private homes in order to collect information from within.

It’s really excellent news that a court ordered the public disclosure of this information about government stingray deployment, especially in light of the federal government’s absolutely outlandish efforts to keep such information secret from public view.

We’ve known for some time that the federal government’s obsession with secrecy has been trickling down to the state and local level. But what happened in Florida this week boggles the mind.

When the ACLU filed a public records request to the Sarasota police department seeking records about its use of stingray cell phone sniffers, the department replied that it possessed responsive documents. You won’t believe what happened next.

Again, Nate Wessler explains:

The Sarasota Police set up an appointment for us to inspect the [stingray surveillance] applications and orders, as required by Florida law. But a few hours before that appointment, an assistant city attorney sent an email cancelling the meeting on the basis that the U.S. Marshals Service was claiming the records as their own and instructing the local cops not to release them. Their explanation: the Marshals Service had deputized the local officer, and therefore the records were actually the property of the federal government.

We emphatically disagree, since the Sarasota detective created the applications, brought them to court, and retained the applications and orders in his files. Merely giving him a second title (“Special Deputy U.S. Marshal”) does not change these facts. But regardless, once the Sarasota Police Department received our records request, state law required them to hold onto the records for at least 30 days, to give us an opportunity to go to court and seek an order for release of the documents.

Instead of complying with that clear legal obligation, the local police allowed the records to disappear by letting the U.S. Marshals drive down from their office in Tampa, seize the physical files, and move them to an unknown location. We’ve seen our fair share of federal government attempts to keep records about stingrays secret, but we’ve never seen an actual physical raid on state records in order to conceal them from public view.

In short, the federal government intervened to obstruct a local police agency from complying with Florida state law. Apparently the feds are terrified of transparency.

But what’s the government got to hide? A lot, according to this excellent review of the secrecy regime surrounding electronic surveillance orders nationwide.

One particular thing the federal government has to hide is that it may be conducting mass, warrantless location tracking of our cell phones—at least according to a federal judge who just ruled on the NSA’s phone records program.

Idaho’s Anna Smith lost her challenge to the NSA’s collection of her phone records, Smith v Obama. But while U.S. District Judge Lynn Winmill ruled that Supreme Court precedent in Smith v Maryland holds that we have no privacy interest in the numbers we dial on our phones, there’s no such precedent to say we don’t have privacy interest in other information the NSA collects or may collect on hundreds of millions of Americans—including Ms. Smith—as a matter of course.

Winmill [citations stripped]:

…the data collected by the NSA goes beyond the telephone numbers that Smith dials, and reaches into her personal information. For example, the NSA’s collection of the time and duration of phone calls is revealing: Would most citizens want to keep private the fact that they called someone at one in the morning and talked for an hour or two?

And what about location? Would most phone users expect to keep private (1) their location at any moment and (2) their travel path over time? The NSA collects “trunk identifier” data that shows the location where a cell-phone call enters the “trunk” system to be relayed eventually to the number being called. While this would not pinpoint a phone user’s precise location, it would narrow it down considerably. Moreover, the data also includes “comprehensive communications routing information.” While this phrase is ambiguous, it may mean that for a single call, all the trunk identifiers are collected by the NSA, allowing the agency to track “how a cell phone user moves from one cell phone tower to another while traveling.” The speed with which the phone moves from tower to tower could indicate, for example, whether the device is being used in a car or while walking down the street.

While the NSA denies hoovering up location records as part of the call detail information it collects from telecommunications companies, it’s not at all certain that this representation reflects reality. Judge Winmill doesn’t rule either way. But he does suggest that if the NSA is tracking the trunk ID and therefore the location of all our phone calls, Smith v Maryland doesn’t provide guidance. So if someone could prove that the NSA in fact does collect location records domestically on a mass scale, such collection might be ripe for a constitutional challenge.

© 2021 ACLU of Massachusetts.