The government’s ability to track 316 million Americans without a warrant rests on a flimsy premise upheld Tuesday by the 5th U.S. Circuit Court of Appeals. The judges, intentionally or not, move us into the shadow of the total surveillance society.
Throughout history, totalitarian regimes dreamed of tracking at will the exact whereabouts of enemies of the state. This power is now reality; police officers and bureaucrats can tap into the GPS-style location technology built into every cellphone, with no warrant required.
Judges and lawyers say it’s OK to dispense with the inconvenience of warrants if a third party, a company such as Verizon or AT&T, holds the records of the calls. The doctrine survives from the days of only one telephone company when touch-tone dialing on pink Princess telephones was a novelty. A device called a pen register physically recorded each number as a suspect dialed it. Since it was only a number, and not the actual conversation, the Supreme Court in 1979 said it unworthy of constitutional protection.
That was then, and now calling devices convey far more information than in those distant days. Mobile phones signal their whereabouts at regular intervals to the cell network, and the courts treat this “personal location information” as if it were no more revealing than a series of random digits.
“We understand that cellphone users may reasonably want their location information to remain private, just as they may want their trash, placed curbside in opaque bags,” Judge Edith Brown Cook wrote for the three-judge panel, sounding as if a man in her house has the task of taking out the trash. “But the recourse for these desires is in the market or the political process.”
The government, however, long ago foreclosed a free-market solution. The Federal Communications Commission requires the transmission of GPS location data as part of the 911 emergency system, and, once sent, data is collected by the National Security Agency.
Gen. Keith B. Alexander, the spy agency’s director, defended the third-party records-collection doctrine at the Black Hat private security conference in Las Vegas on Wednesday. “Fifteen judges have approved that 34 times,” he said. “Congress, the courts and the administrations have looked at it.” He told the gathering of skeptical and occasionally hostile, even heckling, computer-security experts that government spying is essential because it catches terrorists. “Systems” are in place, he insisted, that make it impossible for the data to be misused.
He said “auditing” would catch even an attempt to read his daughter’s emails because an analyst must demonstrate a foreign-intelligence purpose before being allowed to snoop. The London Guardian has published documents explaining that such purposes are established with a drop-down menu and the mere click of a computer mouse. There’s enough protection already. “Our people have to take courses and pass exams to use this data,” he said.
Those are the same tests that Edward J. Snowden passed to become an intelligence analyst. Whether hero or a rogue, he demonstrated that the intelligence community’s audits, access controls and training courses are insufficient to protect us.
The Founding Fathers bequeathed a more effective safeguard: The government is forbidden even to ask for someone’s “papers,” like an officious gendarme on the Champs Elysees, without probable cause and a warrant. The 5th Circuit correctly noted that a political solution is preferable.
The good news is that the surveillance edifice around the third-party record doctrine invites a simple legislative fix. Congress can, and should, revise the law to recognize the importance of location data by ending the third-party charade, and should do it now.
The Washington Times