No Warrant, No Problem: How the Government Can Get Your Digital Data b4in.org/r5Lb By Theodoric Meyer, ProPublica The government isn’t allowed to wiretap American citizens without a warrant from a judge. But there are plenty of legal ways for law enforcement, from the local sheriff to the FBI to the Internal Revenue Service, to snoop on the digital trails you create every day. Authorities can often obtain your emails and texts by going to Google or AT&T with a court order that doesn’t require showing probable cause of a crime. These powers are entirely separate from the National Security Agency’s collection of Americans’ phone records en masse, which the House of Representatives voted to end last month. Here’s a look at what the government can get from you and the legal framework behind its power: Stuff They Can Get: • PHONE RECORDS — Who You Called, When You Called How They Get It Listening to your phone calls without a judge’s warrant is illegal if you’re a U.S. citizen. But police don’t need a warrant — which requires showing “probable cause” of a crime— to monitor the numbers for incoming and outgoing calls in real time, as well as the duration of the calls. Instead, they can get a court to sign off on an order that only requires the data they’re after is “relevant to an ongoing criminal investigation“— a lesser standard of evidence.The government can also get historical phone records with an administrative subpoena, which doesn’t require a judge’s approval. What the Law Says Police can get phone records without a warrant thanks to a 1979 Supreme Court case, Smith v. Maryland, which found that the Constitution’s Fourth Amendment protection against unreasonable search and seizure doesn’t apply to a list of phone numbers. The Electronic Communications Privacy Act (ECPA) — a 1986 law that underpins much of how the government can get digital data — requires providers to allow access to real-time data with a court order and historical data with a subpoena. • LOCATION DATA — Your Phone Is a Tracker How They Get It Many cell phone carriers provide authorities with a phone’s location and may charge a fee for doing so. Cell towers track where your phone is at any moment; so can the GPS features in some smartphones. In response to an inquiry by Sen. Edward J. Markey, a Massachusetts Democrat, Sprint reportedthat it provided location data to U.S. law enforcement 67,000 times in 2012. AT&T reported receiving 77,800 requests for location data in 2012. (AT&T also said that it charges $100 to start tracking a phone and $25 a day to keep tracking it.) Other carriers, including T-Mobile, U.S. Cellular and Verizon, didn’t specify the number of location data requests they had received or the number of times they’ve provided it. Internet service providers can also provide location data that tracks users via their computer’s IP address — a unique number assigned to each computer. What the Law Says Courts have been divided for years on whether police need a warrant from a judge to get cell phone location data. Back in 2005, Judge Stephen W. Smith denied a government request for real-time access to location data, and some judges have followed his lead. But other courts have ruled that no warrant in necessary. Authorities only have to show that, under the ECPA, the data contains “specific and articulable facts” related to an investigation — again, a lesser standard than probable cause. Montana, Maine, Wisconsin, Utah and Colorado have passed laws requiring police to get a warrant for location data in most circumstances. (See the American Civil Liberties Union’s helpful breakdown of recent laws passed.) Recent court rulings have created a patchwork of rules depending on where you live and who’s requesting the data. New Jersey’s Supreme Court ruled last year that police needed a warrant to get real-time location data, and Massachusetts’ Supreme Judicial Court ruled in February that authorities needed a warrant to get historical location data for significant periods of time. But those decisions apply only to state authorities in those states, not federal law enforcement agencies like the FBI. More b4in.org/r5Lb
Posted on: Sat, 28 Jun 2014 22:37:56 +0000
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