Cellphones or trackers? Debate hasn’t kept pace with technology

On June 2, 2007, a Kansas teenager named Kelsey Smith disappeared in the parking lot of a Target store, where she had gone to buy supplies for a graduation party. Her car, a 1987 Buick Regal, was discovered in the parking lot of a nearby Macy’s.

Store surveillance videos suggested she’d been kidnapped, but her cellphone service provider, Verizon Wireless, initially wouldn’t cooperate with investigators who wanted data from her cellphone. Finally, after four days of a massive search, the company released location “ping” data from her phone, and authorities found her within 45 minutes — dead in a Missouri creek bed.

The general rule of thumb when it comes to technology and law enforcement is that a given new gizmo will make investigations faster and easier. Instead of requiring a 1,000-person manhunt, a cellphone-wearing person can be found by a team of technicians; instead of depending on the testimony of unfriendly witnesses, the guilty can be damned with a wiretap, without all the muss.

Smith’s death led Missouri Gov. Jay Nixon to sign a bill compelling cellular service providers to provide phone information for missing people in danger.

But in recent years, as phones have taken on the roles of navigator, assistant, researcher and memory box, they’ve become pipelines to vast reserves of personal information easily derricked out by government investigators. Those investigators’ powers have been little debated -- publicly, at least -- and even less understood. Further, phones are still thought of as essentially private devices.

That could be about to change.

Last week, new data released by cell providers in a congressional inquiry revealed a staggering uptick in police warrants and subpoena requests for Americans’ phone information. Many of those requests came under emergency situations not unlike Kelsey Smith’s, but many also came from “cell tower dumps” that catch every user, innocent or guilty.

And, according to data gathered by the Department of Justice in 2010, some companies keep track of the physical location of cellphones for up to two years.

“The device in your purse or jeans that you think is a cellphone — guess again. It is a tracking device that happens to make calls,” Peter Maass and Megha Rajagopalan wrote for ProPublica. “Let’s stop calling them phones. They are trackers.”

Whether the amount of data that can now leak from a phone bothers any given user might depend on that user’s notion of privacy. But, suffice to say, the concept of a phone as an inanimate object is hopelessly outdated. Through calls and texts, through Google searches and location data, the phone is now a witness to everything a user does.

As such, its testimony in any trial would be peerlessly obedient.

The 5th Amendment right against self-incrimination doesn’t matter as much if someone carries around something that will repeat everything he or she says.

The 4th Amendment -- another grand guarantor of privacy, one that protects Americans from unreasonable search and seizure -- was written in a time before Facebook iPhone apps replaced living rooms as the spaces in which we live. Living room walls can’t talk, and they’ve never been expected to do so. But Facebook can, and unlike cell companies and Twitter, the company has yet to disclose how often it talks to government officials bearing subpoenas.

The increasingly integrated use of cellphones with apps and Internet services also means that phone data aren’t held only by the service-providing gatekeepers but by a litany of private companies vulnerable to subpoena or hacker exposure.

A close reading of Twitter’s privacy policy and law enforcement guidelines seems to show that the company tracks and saves the location of tweets (read: users’ location) and Web pages visited with Twitter buttons, like the ones on the top and bottom of this post.

That could mean Twitter might surrender what tweeters do with their phones without any involvement from cell providers. (Twitter did not respond to the Los Angeles Times’ request for clarification on the extent of user information that the company keeps and would turn over to law enforcement.)

“It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties,” Supreme Court Justice Sonia Sotomayor wrote of companies such as Facebook, Verizon and Google in a January court opinion that requires the police to get a warrant before slapping a GPS tracker on someone’s car. “This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”

But Justice Samuel Alito, in a separate opinion from the conservative wing of the court, gave a shrug and poked holes in the idea that you can build good laws around the public’s constantly shifting ideas of privacy.

“Even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable,” he wrote.

Of course, some people don’t believe in much privacy at all, trusting the police to do the right thing. To them, sounding the alarm about a loss of privacy when it comes to stopping crime sounds like a misplacement of priorities.

Then there’s the case to be made that a self-surveilling society is a better society.

“The reasoning is fairly simple: The better the surveillance, the more likely it is that moral transgressions will be detected and punished,” Emrys Westacott wrote in a 2010 Philosophy Now article titled, “Does Surveillance Make Us Morally Better?” “Knowing this, people are less inclined to break the rules, and over time they form ingrained rule-abiding habits.”

To date, the rhetoric of those who look carefully at such issues has been far more alarmist and absolute than that of the average citizen casually thinking about getting a new phone.

Matt Blaze, a professor of computer and information science at the University of Pennsylvania, told ProPublica that the public had two options: “Don’t have a cellphone or just accept that you’re living in the Panopticon.”

Along those lines, it seems hard to imagine a world in which Missouri gets rid of a surveillance-enabling law that might have saved the life of someone like Kelsey Smith.

Thus the future of phone privacy won’t be decided in a day; it will be decided in increments, discussed by people rarely seen.

Some say the conversation is already half over.


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