“Location data for cops is like a kid in a candy store,” said Mark Rasch, former head of the Justice Department’s Computer Crime Unit. “It’s a wonderful investigative tool which is highly intrusive of personal liberty and our rules on privacy, and rules governing access to this are not only antiquated but confusing and conflicting. Add to that a profit motive by carriers, and lack of sufficient oversight on law enforcement access to the records, and you have a prescription for, at a minimum, violations of civil liberties.” Rasch is now a consultant with Virginia-based cyber security firm CSC.
“Cops can have a pile of blank subpoenas in their desk drawer,” he said. Carriers normally consent to subpoena requests, but legally they don’t have to. If they refuse, a law enforcement agency is then required get a judge’s order to enforce the subpoena, a step that’s rarely taken, he said.
The study involves only local cops; federal authorities file their own cell phone location requests and wiretaps, which were not considered in this report.
“I think that this data confirms that cell phone trapping is a routine law enforcement practice, not only for serious crimes but for more routine crimes ,” said Catherine Crump, the ACLU lawyer who ran its investigation. “It is integrated into the law enforcement’s everyday arsenal, and that makes understanding what data law enforcement uses, and making sure that this complies with the Constitution, all the more important. … This is first look we have to see how pervasive this practice is.”
Both Rasch and Crump, the ACLU attorney, expressed mixed feelings about the carriers’ earnings from law enforcement request, which are clearly substantial but might not be profitable. Both said they wouldn’t want carriers to charge any less, because the fees act as a natural barrier to abusive data gathering.
“The amounts give a good sense of how massive (the carriers’) facilities are for processing and handing over this customer data,” Crump said. “But it is good that carriers charge. If this were free, there would be a lot more of it.”
Rasch pointed out that U.S. officials and citizens haven’t yet settled on the debate about whether location data is private or public information, further confounding the constitutional issues raised by police cell phone tracing requests.
“FourSquare is doing this 50,000 times a day,” Rasch said. “This data just involves cell phone carriers – there are dozens, if not hundreds, of other people know where you are – EZ Pass, Google, and so on. There are plenty of other ways for authorities to find you.”