Cell Phone Tracking, Privacy, And Learning Not To Look
from the peek-a-boo dept
Instead of seeking warrants based on probable cause, some federal prosecutors are applying for orders based on a standard lower than probable cause derived from two statutes: the Stored Communications Act and the Pen Register Statute, according to judges and industry lawyers.
In some ways this is unsurprising. As with the administration's avoidance of FISA courts as it mines data, this is an example of law enforcement identifying a new tool and attempting to use it without engaging existing oversight structures. Nobody likes doing paperwork, after all. But this particular issue is also emblematic of the reexamination of the public/private divide that our increasingly data-rich world is prompting.
It'd be a stretch to interpret the decision to buy a cellphone with non-optional E911 tracking capabilities as an agreement to publicly disclose your location to the world. But fuzzier cases are looming. Consider Yahoo's FireEagle initiative, which will provide an integrated platform for plotting your location and an API that'll allow approved third parties to observe it. To many it may seem incomprehensible that individuals would opt in to such tracking — how hard is it to enter your address at pizzahut.com, anyway? — but there's no doubt that these services are coming. Some mobile carriers like Boost and Helio already offer GPS friend-locator services, after all.
So if I decide to let a third party know my location — a cab company, for instance — does that mean that law enforcement can retrieve it from them without a warrant? What if I let my family know where I am? What if I post my movements to my Facebook feed but only allow my contacts to observe them? For that matter, what if a firm writes a program and observes that some of its company-issued cell phones are regularly being carried into Narcotics Anonymous meetings and distributes that information internally?
Doubtless all of these examples could be interpreted through existing law. That approach has worked well enough so far: treating an email as a letter works fine, and an IM conversation can be roughly thought of as a phone call. But new types of semi-private communication will pose a challenge to this approach, as will the sheer volume and accessibility of the data that can be gathered about an individual.
It seems clear that individuals are increasingly publishing information about themselves that, while obtainable, should only be formally considered in certain cases — if, that is, we're going to maintain any semblance of privacy. It will be interesting to see where these lines are drawn. Cell phone tracking data is being used to put people in jail, which makes it a good candidate for prompting new laws and judicial decisions. But it seems likely that as we record more and more of our private lives online we'll not only need new privacy laws, but new privacy norms as well.