A police state? Cell surveillance becomes pervasive in the US

In the first public accounting of its kind, cellphone carriers in the US have reported that they responded to a startling 1.3 million demands for subscriber data last year from law enforcement agencies seeking text messages, caller locations and other information in the course of investigations.

The cellphone carriers’ reports, which come in response to a congressional inquiry, document an explosion in cellphone surveillance in the last five years, with the companies turning over records thousands of times a day in response to police emergencies, court orders, law enforcement subpoenas and other requests.

The reports also reveal a sometimes uneasy partnership with law enforcement agencies, with the carriers frequently rejecting demands that they considered legally questionable or unjustified. At least one carrier even referred some inappropriate requests to the FBI.

The information represents the first time data collected nationally on the frequency of cell surveillance by law enforcement. The volume of the requests reported by the carriers – which most likely involve several million subscribers – even surprised some officials who have closely followed the growth of cell surveillance. 

“I never expected it to be this massive,” said Rep. Edward J Markey, D-Mass., who requested the data from nine carriers, including AT&T, Sprint, T-Mobile and Verizon, in response to an article in April in The New York Times on law enforcement’s expanded use of cell tracking. Markey, who is the co-chairman of the Bipartisan Congressional Privacy Caucus, made the carriers’ responses available to The Times.

While the cell companies did not break down the types of law enforcement agencies collecting the data, they made clear that the widened cell surveillance cut across various levels of government – from run-of-the-mill street crimes handled by local police departments to financial crimes and intelligence investigations at the state and federal levels.

AT&T alone now responds to an average of more than 700 requests a day, with about 230 of them regarded as emergencies that do not require the normal court orders and subpoena. That is roughly triple the number it fielded in 2007, the company said.

Law enforcement requests of all kinds have been rising among the other carriers as well, with annual increases of between 12 per cent and 16 per cent in the last five years.

Sprint, which did not break down its figures in as much detail as other carriers, led all companies last year in reporting what amounted to at least 1,500 data requests on average a day.

With the rapid expansion of cell surveillance have come rising concerns – including among the carriers – about what legal safeguards are in place to balance law enforcement agencies’ needs for quick information against the privacy rights of consumers.

Security matters

Legal conflicts between those competing needs have flared before, but usually on national security matters. In 2006, phone companies that cooperated in the Bush administration’s secret programme of eavesdropping on suspicious international communications without court warrants were sued, and ultimately were given immunity by Congress with the backing of the courts. 

Under federal law, the carriers said they generally required a search warrant, a court order or a formal subpoena to release information about a subscriber. But in cases that law enforcement officials deem an emergency, a less formal request is often enough.

Moreover, rapid technological changes in cellphones have blurred the lines on what is legally required to get data – particularly the use of GPS systems to identify the location of cellphones.

As cell surveillance becomes a seemingly routine part of police work, Markey said in an interview that he worried that ‘digital dragnets’ threatened to compromise the privacy of many customers. “There’s a real danger we’ve already crossed the line,” he said.

With the rising prevalence of cellphones, officials at all levels of law enforcement say cell tracking represents a powerful tool to find suspects, follow leads, identify associates and cull information on a wide range of crimes. 

“At every crime scene, there’s some type of mobile device,” said Peter Modafferi, chief of detectives for the Rockland County district attorney’s office in New York, who also works on investigative policies and operations with the International Association of Chiefs of Police. The need for the police to exploit that technology “has grown tremendously, and it’s absolutely vital,” he said in an interview.

Because of incomplete record-keeping, the total number of law enforcement requests last year was almost certainly much higher than the 1.3 million, the carriers reported to Markey. Also, the total number of people whose customer information was turned over could be several times higher than the number of requests because a single request often involves multiple callers.

For instance, when a police agency asks for a cell tower ‘dump’ for data on subscribers who were near a tower during a certain period of time, it may get back hundreds or even thousands of names. To handle the demands, most cell carriers reported employing large teams of in-house lawyers, data technicians, phone ‘cloning specialists’ and others around the clock to take requests from law enforcement agencies, review the legality and provide the data.

Law enforcement officials say the GPS technology built into many phones has proved particularly critical in responding to kidnappings, attempted suicides, shootings, cases of missing people and other emergencies. But Sprint and other carriers called on Congress to set clearer legal standards for turning over location data, particularly to resolve contradictions in the law.