WASHINGTON - Federal officials routinely have been asking courts to order cellphone companies to furnish real-time tracking data so they can pinpoint the whereabouts of drug traffickers, fugitives, and other criminal suspects, according to judges and industry lawyers.
In some cases, judges have granted the requests without requiring the government to demonstrate that there is probable cause to believe that a crime is taking place or that the inquiry will yield evidence of a crime. Privacy advocates fear that such a practice may expose average Americans to a new level of government scrutiny of their daily lives.
Such requests run counter to the Justice Department's internal recommendation that federal prosecutors seek warrants based on probable cause to obtain precise location data in private areas. The requests and orders are sealed at the government's request, so it is difficult to know how often the orders are issued or denied.
The issue is taking on greater relevance as wireless carriers are racing to offer sleek services that allow cellphone users to know with the touch of a button where their friends or families are. The companies are hoping to recoup investments they have made to meet a federal mandate to provide enhanced 911, or E-911, location tracking.
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"Most people don't realize it, but they're carrying a tracking device in their pocket," said Kevin Bankston of the privacy advocacy group, Electronic Frontier Foundation. "Cellphones can reveal very precise information about your location, and yet legal protections are very much up in the air."
In a stinging opinion this month, a federal judge in Texas denied a request by a Drug Enforcement Administration agent for data that would identify a drug trafficker's phone location by using the carrier's E-911 tracking capability. E-911 tracking systems read signals sent to satellites from a phone's Global Positioning System chip or triangulated radio signals sent from phones to cell towers.
Magistrate Judge Brian Owsley of the Corpus Christi division of the Southern District of Texas said the agent's affidavit failed to focus on "specifics necessary to establish probable cause, such as relevant dates, names, and places."
Owsley decided to publish his opinion, which explained that the agent failed to provide "sufficient specific information to support the assertion" that the phone was being used in "criminal" activity.
Instead, Owsley wrote, the agent simply alleged that the subject trafficked in narcotics and used the phone to do so.
