If you carry a cellphone in your pocket you may as well be wearing an ankle bracelet. Think about it. Cell phones are convenient devices. They are handy for connecting us with loved ones, paying bills and accessing information. They are also silently and continuously reporting on our every move.
Even though the Supreme Court weighed in our government agencies insist they have the right to track you. They are pulling up that tracking data to see our whereabouts. If you carry a cellphone in your pocket, you may as well have a GPS beacon strapped to your ankle… constitution be damn, SCOTUS be damn.
If you want to cut the governmental tether… leave the gadget at home. The point is receiving emphasis in the wake of January 6th at the Capitol. The authorities pulled cell phone records to see who was present, where they were and when they were there. Oh, and if you used your phone they have that too.
The Intercept reported this week, “… The FBI relied in some cases on emergency orders that do not require court authorization in order to quickly secure actual communications from people who were identified at the crime scene… Investigators have also relied on data ‘dumps’ from cellphone towers in the area to provide a map of who was there, allowing them to trace call records — but not content — from the phones.”
Can the government buy the data from a private company?
The data from people’s phones and the apps they use has amazing detail. We know marketing firms compile it. An individual, “outraged by the events of Jan. 6” supplied data on participants in the day’s events to The New York Times. Imagine the surprise of the NYT writers upon receipt of the information.
“While there were no names or phone numbers in the data, we were once again able to connect dozens of devices to their owners, tying anonymous locations back to names, home addresses, social networks and phone numbers of people in attendance,” Charlie Warzel and Stuart A. Thompson wrote.
Marketing databases have become a favorite resource for government agencies. They purchase the information as an end-run of our Fourth Amendment protections. The theory is, since you provide the data “voluntarily” to a third party there’s no privacy from the government. That needs to change.
The federal government has bought access to a commercial database mapping the movements of millions of cellphones in America. It is using it for immigration and border enforcement according to a Wall Street Journal report. The location data extraction is from ordinary cellphone apps. The apps include: games, weather and e-commerce. The user grants permission to log the phone’s location.
Supreme Court. In Carpenter v. United States
The FBI also made use of phone location data which led to a legal challenge. It went all the way to the Supreme Court. In Carpenter v. United States (2018) the justices noted:
“A majority of the Court has already recognized that individuals have a reasonable expectation of privacy in the whole of their physical movements. Allowing government access to cell-site records … contravenes that expectation.” As a result, the court ruled in the opinion written by Chief Justice John Roberts, “the Government will generally need a warrant to access CSLI [cell-site location information].”
You might think this would be the end of it for government agencies. You’d be mistaken. Cell phones track us in two ways. They track through CSLI generated when phones contact cell towers. They also track through GPS data collected by the apps installed on phones.
CSLI isn’t yet as accurate as GPS location data. However it has the advantage of linkage to specific phone numbers. GPS data relates to mobile advertising IDs. They are supposedly, anonymous. It’s not directly connection to individuals. There is no specific mention in Carpenter.
Therefore, government agencies maintain they can still gather cell phone GPS data. That is not the spirit of the law or the spirit of the U.S. Constitution. It is the spirit of a socialist government bent on tracking and control.
The Internal Revenue Service (IRS) told the Treasury Inspector General for Tax Administration (TIGTA):
“[I]t is our understanding that the Carpenter decision concerned historical Cell Site Location Information which is distinct from the opt-in app data available on the Venntel platform…” The response came as a result of a query about the use of commercial databases such as Venntel.
An investigatory inquiry from bought access was the motive force behind the TIGTA query. They were looking into reports of the IRS engaging in warrantless tracking of suspects. Tax collectors, the FBI and immigration officials appreciate the use of third-party location data. For what it is worth the IRS argument didn’t convince the inspector general.
The Wall Street Journal reports the TIGTA letter noted:
“The Carpenter decision did not directly address the use of GPS data, but future courts may apply the same logic to limit the use of GPS data without a warrant… Our concern is that the Supreme Court rejected the Government’s argument in Carpenter that CSLI is truly voluntarily provided to the phone carriers. The Court’s rationale was that phone users do not truly voluntarily agree to share the information given the necessity of phones in our society. Courts may apply similar logic to GPS data sold by marketers, particularly if the Government identifies ways to translate the alphanumeric code to identify the phone’s owner or has other means of identifying the phone’s owner.”
Avoiding warrantless searches
That’s a well-placed concern as the report in The New York Times demonstrates. By comparison with other databases, one can secure the supposedly anonymous ID’s. Those databases contain the same ID. Having the ID allows us to add real names, addresses, phone numbers, email addresses. In seconds addition of other information about smartphone owners can is available. Face it; carry a cellphone you are on tracking and tracing.
You can disable advertising IDs. Theoretically this would make it harder to track a cell phone through GPS dataapp-gathering. But CSLI data pinpoints a phone’s location every time it pings a tower. That data is now subject to warrant requirements. But it exists; the FBI gathered it January 6th in the Capitol. GPS data will continue to be available without a warrant until the courts weigh in on the issue.
This means anyone wanting to participate in a protest, engage in untracked meetings, or travel unmonitored has to leave behind all cell phones and other modern electronic devices. They cannot carry a cellphone. Most electronic devices connect to your name and identity.
If you don’t want to be tracked; carry a cellphone… a burner phone purchased with cash and free of social media accounts is probably fine. That’s as far as it goes. The conveniences of the connected modern world comes with a steep price: our anonymity.