"Part of the problem is that these surveillance technologies are shrouded in secrecy," said Linda Lye, staff attorney with the ACLU of Northern California. "Technologies can be used for ill and for good, but the right to privacy means that we have a right to transparency and accountability. What we're trying to do is explore the range of surveillance technology that law enforcement agencies are using."
The now-ubiquitous use of social networking sites, online bookstores, facial recognition, GPS tracking and cell phones has created a legal gray area where police are not clearly required to obtain a search warrant to monitor an individual. Through a series of FOIA requests [PDF], the ACLU is conducting a nationwide investigation into how law enforcement officials obtain and use this information.
"The significance for (California) is that our state has been a leader in technological innovation," Lye said. "So it's fairly possible that police agencies (in the state) are going to be a leader in pioneering new surveillance technologies."
The disclosure requests include: statistics on how frequently law enforcement agencies obtain cell phone location data – including the number of emergency requests for which no court order was obtained; policies or protocol provided to officers for gathering information from social networking sites like Facebook and Twitter; information on how long the data is kept and when and how it is deleted; and the effectiveness of digital surveillance in identifying or arresting suspects.
The ACLU of California expects to start seeing information from these requests by September.
Evidence of digital surveillance by government and law enforcement is not widespread, but several cases have raised serious concerns for advocates:
- This fall, the Justice Department will appeal a lower court ruling and argue before the U.S. Supreme Court that GPS monitoring during a criminal investigation did not need a warrant.
- Earlier this month, the ACLU reported that Michigan police sought information for every mobile phone near a planned labor protest.
- In 2009, it was leaked from an industry meeting that Sprint received – over a 13-month period – more than 8 million law enforcement requests for GPS data revealing location and movements of Sprint customers.
- Google reports that between July and December 2010, it received 4,601 law enforcement requests for information. The company's website says the number of government requests for "user account information as part of criminal investigations has increased year after year."
The ACLU's position is that a probable-cause warrant should be required to digitally monitor an individual. In some instances, law enforcement officials have obtained warrants for digital surveillance, though in many cases these warrants do not require probable cause. In other cases, Lye said, it seems police simply request the information and a company hands it over.
"We used to store (information) on paper in our home offices. For the police to access that, they would need a warrant based on probable cause," she said. "But now they might be able to get the same information from a cell phone provider. We believe the standard should be the same standard that the desk calendar was 10 years ago."
Law enforcement officials argue some emergency situations trump an individual's civil rights. But monitoring and digital tracking are not used lightly, said Ron Cottingham, president of the Peace Officers Research Association of California and a lieutenant with the San Diego Sheriff's Department, where he has worked for 38 years.
"There is some cost to these things, so the departments themselves monitor how often they use them," he said. "They just don't frivolously run out and slap a GPS device on every known burglar's car just to see where they're going."
Cottingham said he remembers a particular case in which warrantless cell phone location data was used to find a man who shot an Oakland police officer. The man was caught within a day. The digital surveillance was "an integral part of his apprehension," he said.
"If you have a person that's running around and is willing to shoot a police officer, then they're willing to shoot anybody," he said. "We're talking exigent circumstances. We're talking a guy you want to track down, you want to track down quickly. You want to get him off the streets. You don't have time to get a warrant."
The Electronic Frontier Foundation doesn't agree. It's lobbying to protect digital information like a cell phone's location under the Electronic Communications Privacy Act.
"ECPA was written in the '80s," said Rebecca Jeschke, spokeswoman for the foundation. "And some of the terms that they define are not applicable in the 21st century. We need to make sure that the spirit of these privacy laws are continued with a proper 21st-century upgrade."
Both the ACLU and the foundation also are involved in a case concerning three individuals whose Twitter accounts are being subpoenaed by the Department of Justice in connection to a WikiLeaks investigation.
"(They) would not have had any idea that the government had asked for information about them if Twitter had not come forward and told them that that's the case," Jeschke said. "Under the law, they didn't have to notify their customers."
U.S. Sen. Patrick Leahy, D-Vt., recently introduced a bill [PDF] that would require search warrants for tracking mobile devices and requesting digital information. Both the foundation and ACLU support the legislation, but the civil liberties union has said it doesn't go far enough, in part because it doesn't mandate that an individual be notified if he or she is being investigated.
Sgt. Norm Leong of the Sacramento Police Department said that if such a mandate were put in place, he'd like to see an exemption for investigations that could be jeopardized due to their surreptitious nature. However, he said his department doesn't have a position as to whether such practices should be legislated.
"That's never been law enforcement's decision," he said. "That's what case law is for. It constantly changes. What's legal one day is not the next. That's for the courts. We just follow our practices based on that."
Story courtesy of our media partners at California Watch (A Project of the Center for Investigative Reporting)
