Justin Elliott at Talking Points Memo published this post yesterday entitled "Police Tapped Sprint Customer GPS Data 8 Million Times in a Year." Just how private is GPS data?
Elliott reports that Paul Taylor, Sprint's Manager of Electronic surveillance, revealed that Sprint "turned on" a feature allowing police to access GPS data, and that the tool has "caught fire" with law enforcement. Taylor reportedly said:
We turned it on the web interface for law enforcement about one year ago last month, and we just passed 8 million requests. So there is no way on earth my team could have handled 8 million requests from law enforcement, just for GPS alone. So the tool has just really caught on fire with law enforcement. They also love that it is extremely inexpensive to operate and easy.
Sprint's response, from Rich Pesce of Social Media and Digital Communications at Sprint, essentially constitutes an admission of the practice. Pesce's full statement is as follows:
The comments made by a Sprint corporate security officer during a recent conference have been taken out of context by this blogger. Specifically, the “8 million” figure, which the blogger highlights in his email and blog post, has been grossly misrepresented. The figure does not represent the number of customers whose location information was provided to law enforcement, as this blogger suggests.
Instead, the figure represents the number of individual “pings” for specific location information, made to the Sprint network as part of a series of law enforcement investigations and public safety assistance requests during the past year. It’s critical to note that a single case or investigation may generate thousands of individual pings to the network as the law enforcement or public safety agency attempts to track or locate an individual.
Instances where law enforcement agencies seek customer location information include exigent or emergency circumstances such as Amber Alert events, criminal investigations, or cases where a Sprint customer consents to sharing location information.
Sprint takes our customers’ privacy extremely seriously and all law enforcement and public safety requests for customer location information are processed in accordance with applicable state and federal laws.
Sooooo – law enforcement agencies may obtain customer location information in "exigent or emergency circumstances" such as "criminal investigations." Well I should hope it was not for personal reasons ("Where were you this afternoon, honey?")!
According to a post on the Sprint website another Sprint spokesman, John Taylor, states that GPS data is made available to law enforcement officials only in four circumstances:
There are four circumstances under which law enforcement agents can use the Sprint website and obtain GPS data: 1) under the authority of a court order; 2) to track the location of a customer who has made a 911 call; 3) in an emergency situation, such as tracking someone lost in the wilderness or trying to locate an abducted child or hostage; 4) with a customer’s consent.
This is simply one part of a larger problem, which is that, as usual, technological change is outstripping the law.
The Fourth Amendment states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
It is quite clear that the police may not search our homes without a warrant for items such as phone records, credit card bills, or even to seize information from our computers. In the modern age, though, they don't need to. Much of that information is stored by banks, phone companies, and internet service providers. In the past, as part of an investigation the police could always go to a store or a restaurant or a hotel and ask, "Has this person been here recently? When? What did that person purchase?" Nowadays all of that information can be obtained with a keystroke online. It used to be that to track a suspect's movements the police would have to wear out shoe leather to either follow the suspect or to turn up witnesses who had seen the person. Today they can access traffic light cameras or better still just ask the phone company to turn on the GPS tracker in the person's cell phone. These aren't "houses, papers, and effects," folks – the Fourth Amendment does not literally apply, and it may not apply even by analogy. The police are not invading our homes and our personal papers to gather this information. Instead, this information is stored at other sites by companies with whom we have chosen to do business. Our actions and our movements are more public because because the technology that keeps track of us has improved and grown so rapidly.
If the police place a GPS unit on a vehicle to track its movements that is likely a "search" or "seizure" of the vehicle, and thus requires a warrant issued upon probable cause. On the other hand, it can be argued that even this is merely an enhancement of a visual tracking of a vehicle. Here is an article posted October 28, 2009, by attorney David R. Yannity regarding the Massachusetts case of Commonwealth v. Connally on this point. Here is another article on this subject posted May 19, 2009 by attorney Kip Wainscott on the website of the American Constitution Society, describing a number of decisions on either side of the question and referring to ongoing litigation over the matter. But many cars come equipped with GPS units, like the one that allowed police to quickly find the carjackers who had stolen the automobile from Senator Corker's daughter in Washington D.C., according to this report two days ago from Paul Duggan of the Washington Post. If I voluntarily share my vehicle's location with Onstar or some other company, do I still have a "reasonable expectation of privacy" as is required for protection under the Fourth Amendment?
You could avoid all this, of course. Pay and receive payment only in cash. Don't use a computer. Don't use a cell phone. Keep your medical records in your personal possession. Oh, and don't drive a car.
UPDATE (December 9, 2009): Justin Elliott at TPM posted an informative article setting forth some of the legal standards governing police access to GPS data.
Professor Huhn has taught Constitutional Law at The University of Akron School of Law for over 25 years. You may access his website on constitutional law for materials relating to his course as well as links to other sources of information on constitutional law.
{ 3 comments… read them below or add one }
I consider myself a "law and order guy." But I have become increasingly concerned about invasions of privacy.
A few years ago, I read an article about the concept of placing bar codes on the roof of cars. The next step is to put bar code readers on the bottom of traffic lights. On a positive note, they suggested that a car could no longer be used in the commission of a crime. On a negative side, they suggested that people would likely not put up with this. I thought the idea was a bit far-fetched, but at least we would know that it was happening and have a discussion about it at that time.
Within the last year, the ABJ published an article about the city of Norton having a camera that reads license plates. A computer checks the plates for wants and warrants. Oops, we never did have the discussion.
It is not a seizure, but it certainly borders upon a search, at least. I know the courts have decided that we have fewer rights when we are on the roads.
There are also instances of law enforcement checking in car GPS units for recent activity. It is a bit of a stretch, I suppose, but I am not happy with echeck reading the cars computer. This strikes me as proving myself innocent.
The stuff of tin foil hat wearing, overnight talk radio is fast becoming possible and easy. We should have the discussion, and soon.
I have even heard complaints about phone companies turning over batch, non-customer specific, location data in an attempt to identify traffic problems. You could see a slowdown of traffic on I-77, and dispatch assistance, before the curses stopped echoing. I don't see this as a problem, but maybe it is just the tip of the axe.
I missed that on the sprint 'now network' commercials, now big brother is watching your route home from work.
I get the impression this is a service that law enforcement pays for. I am unaware of law enforcement paying other people to comply with court orders. We should watch for more about this.
As someone who is married to a dispatcher, I can tell you that "to track the location of a customer who has made a 911 call" has to be a huge part of those numbers. You can call 911 even on a disabled cell phone, which happens when kids get their hands on their parents' old phones. People call 911 on their cellphones all the time, especially now when people are relying on cell phones as their primary phones.
Unfortunately, the GPS is actually pretty terrible at finding 911 cell phone calls. All it does is tell the dispatcher where the closest cell phone tower is.
I am also concerned about privacy (Google, anyone?), but I think there's a less ominous story hidden in there.
I wonder if young people have different values regarding privacy than my generation does. Looking at Facebook, people seem comfortable sharing their image and some fairly intimate information with others. They enter chat rooms, create discussion groups, and spend all day texting and IM'ing each other. This is how they communicate with each other, and they love it. My parents didn't even like talking on the phone! And if you back a few generations, it was pretty easy and very common for Americans to leave their past behind – to move away and start over after a divorce or a bankruptcy or a criminal conviction or just because of wandering feet! There weren't any social security numbers or drivers licenses, people paid and were paid in cash, and people understood – particularly out west – that they should mind their own business.
We are also driven in the direction of less privacy by market forces – information is made more "shareable" in order to reduce the cost of providing medical care and reduce the likelihood of medical mistakes, to create more accurate acturarial models for the insurance industry, and to improve risk assessment in the extension of credit. And who among us would be willing to repeal the laws identifying where sex offenders live? As "Johnny Five" said, "More input, please!"
It leaves me wondering whether people will just adjust their attitudes about privacy. Unlike old fogies like me, they will just accept the fact that everyone knows everything about everybody else, and go from there.
Nice to hear from you both!