I Always Feel Like Somebody's Tracking Me...

by: Ronald Spinner, Associate Editor, MTTLR

Image "Ear" by Jeremy Richardson.
Used under a Creative Commons BY-NC-SA 2.0 license.

Introduction

“I always feel like somebody's watching me / And I have no privacy…”¹

When Rockwell wrote those lyrics back in 1984, many took it as a humorous account of a guy in serious need of therapy. The singer is worried about being spied upon by his neighbors, the mailman, and the Internal Revenue Service.² The somewhat offbeat video for the song hints that Rockwell actually may not be that unusual. The VH1 clip is filled with little pop up “facts,” and in one such, the video claims that 74% of Americans “believe our government engages in clandestine operations.”³

While I hardly recommend relying on music videos for hard sociological data, maybe there is reason to be a little bit paranoid. For examples, just watch the news. In the past few days, we’ve heard that the administration has been pushing Congress to give it permanent permission for warrantless wiretaps.⁴ Congress has been hesitant, but recently agreed to a 15 day extension of the law while they sort things out.⁵ The request seems simple—the administration wants authority to do what Americans want it to do: keep us safe. But…can we trust government with this kind of power? I keep thinking of the phrase: “Power tends to corrupt; absolute power corrupts absolutely.”⁶ And, while I’d like to believe everything will work out as it should, I’d also like to think I’m not that naïve anymore. (It may have something to do with going to law school.)

I did some digging and was not terribly surprised to learn that there seems to be a lot of tracking going on. One type of tracking did raise my eyebrows a bit, though. Apparently, the government routinely seeks court permission to track citizen cell phones without demonstrating probable cause.⁷ OK, this was news to me. Sure, I know the government can engage in surveillance and I had suspected that cell phones were not off limits, but I had thought the Constitution put limits on such activities.⁸ At the very least, it seems there would need to be a statute or such granting the government authority. It turns out, there is. In a touch of Orwellian irony, the law allowing such surveillance is named the Electronic Communications Privacy Act of 1986.⁹ (Had it passed two years earlier, the comparisons to Big Brother would be unavoidable.¹⁰) The devices used to enable cell phone tracking are referred to as “pen registers”.¹¹ Pen registers can record what numbers are dialed and where calls are routed. In the case of cell phones, they sometimes can yield the location of the phone itself, though exactly how close they can pinpoint the location varies depending on whether the phone has a GPS chip and on the number of cell towers nearby that can be used to triangulate the call.¹²

Ah, but in my pre-law-school days, I had assumed that one would need a warrant to do all this.¹³ (OK, before law school I didn’t know why you needed a warrant, but I had watched enough TV to guess it was necessary.) My research bolstered this; I learned that the Constitution is backed up by statutory protections. For example, even if the government has probable cause, if it can only convince a court to issue a warrant for a pen register and nothing more, the pen register may not be used to learn the physical location of the phone.¹⁴ It would seem I was just being paranoid after all. (Maybe Rockwell needs a backup singer?)

If this is all true, though, how does that square with the government’s attempts to track citizen movements without the probable cause needed for a warrant?¹⁵ That doesn’t seem to fit with the statutes or the Constitution. Now I was curious. Partly out of my privacy concerns, but also out of a sense of intellectual interest, I asked: how could this be so?

“Why do I always feel like I'm in the Twilight Zone?”¹⁶
The government has made arguments to get around the “probable cause” requirement, and sometimes they are successful in court.¹⁷ As I understand it, one such line of reasoning, the “hybrid” argument, uses the Stored Communications Act (SCA) to get around the restrictions.¹⁸ Under the SCA, the government may get a court order to access stored records if it provides “specific and articulable facts showing that there are reasonable grounds” that the information sought is “relevant and material to an ongoing criminal investigation.”¹⁹ This is a lower standard than “probable cause.” In simplified form, the argument seems to flow as follows:²⁰

• The statutory protection discussed earlier only comes into play when a cell phone location is sought “solely pursuant to the authority for pen registers and trap and trace devices” (emphasis mine).
• If the government seeks stored record access and real-time tracking data, the statutory protection does not apply, since the government is not solely seeking authority for a pen register. Thus, the pen register should be allowed to record the physical location of the cell phone tracked.
• Since there will be a stored record, the government can use the SCA to access the record later under the lower “reasonable grounds” standard.
• Since the government can access the record later, why not provide the data in real time?

Of course, this argument does not mention that by the time a stored record is accessed, the suspect in question will be long gone. (Let’s face it: that’s a real difference between intercepting someone on the ground and, well, not doing so.) ²¹ In courts, it appears that the argument’s results have been mixed, with some courts accepting and others rejecting the view.²² Some courts are concerned that this feels like an end-run around protections Congress put in place; others appear less concerned about what Congress may have intended and focus on the pure statutory language alone.²³ After my reading, I side with the former position. It seems to me that Congress said “Don’t record locations without express permission” and “You can only seek stored (not live) records with less than probable cause.” In that view, this “hybrid” interpretation feels like a twist of logic that smacks of Orwell’s doublespeak. Nonetheless, as long as courts agree with it, it remains a viable interpretation of law. Don’t get me wrong; I believe in law enforcement. I just happen to believe in process and the Fourth Amendment, also.

“Tell me, is it just a dream?”²⁴

Rockwell may have been paranoid, but perhaps he had a point. And perhaps this is not the full story, since there are allegations that the executive branch sometimes bypasses the courts altogether.²⁵ For me, once a happy-but-naïve person (in my pre-law days), it seems like an odd turn of events. The original goal of the technology was to save lives.²⁶ (Indeed, just weeks ago, cell phone tracking probably saved the lives of two women in Eastpointe, Michigan.²⁷ That’s an undeniably wonderful use for the technology.) Beyond that, the technology continues to find other useful applications.²⁸ Yet, the technology has a dark side, enabling others to spy on us in spite of would-be legal protections.

So, what do we do? Perhaps nothing; maybe we don’t mind if the government can track us.²⁹ But, perhaps you represent an unpopular cause and believe you have reason to be humming Rockwell’s little ditty quietly to yourself. In that case, if you don’t use your phone to access maps and navigation, perhaps you might want to turn off the GPS broadcast function as some phones allow. (My Motorola has a setting “911 only,” which, in theory, only broadcasts the exact location if I dial 911. I’ve chosen that setting, though I can’t vouch for its effectiveness. Also note, even if the setting stops the phone from broadcasting your location, you can still be tracked, just not quite as easily.) For the more active among us (read “less lazy”), it may worth trying to help the courts by filing amicus briefs. Electing officials who respect Constitutional rights is generally helpful, too. At the very least, it might be worth writing a letter to your elected representatives to ask, “Do we really know what we’re getting into with this surveillance and warrantless wiretapping stuff?”

In the meantime, perhaps Rockwell is right. Maybe we should start wondering, “Who’s playing tricks on me?”³⁰

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¹ Rockwell, Somebody’s Watching Me, on Somebody’s watching me (Motown Records, 1984). Video available on vh1.com (last visited Feb. 11, 2008)(hereinafter, Rockwell, Video. Song lyrics available on Yahoo! Music (last visited Feb 11, 2008)(hereinafter Rockwell, Lyrics)
² Rockwell, Lyrics, supra note 1.
³ Rockwell, Video supra note 1, (cited material at 2:32).
⁴ Bush May Veto Spy Measure Extension: Spokesman, Agence France-Presse, Jan. 29, 2008.
⁵ Dan Eggen, Surveillance Law Extended for 15 Days, WashingtonPost.com, Feb. 1, 2008; see also Anne Broache, Congress Approves Brief Extension of Wiretap Law, CNet.com, Jan. 29, 2008.
⁶ See Power Tends to Corrupt..., Bartleby.com, (last visited Feb. 13, 2008).
⁷ Ellen Nakashima, Cellphone Tracking Powers on Request: Secret Warrants Granted Without Probable Cause, WashingtonPost.com, Nov. 23, 2007. See also Kevin McLaughlin, Note, The Fourth Amendment and Cell Phone Location Tracking: Where Are We?, 29 Hastings Comm. & Ent. L.J. 421 (2007).
⁸ See U.S. Const. amend. IV (containing language on “Search and Seizure”); see generally, McLaughlin, supra note 7.
⁹ Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848 (1986). See also, McLaughlin, supra note 7, at 428.
¹⁰ See George Orwell, Nineteen Eighty-Four: A Novel (Secker & Warburg 1949) (1948). In the book, Orwell describes a totalitarian state obsessed with surveillance. His book coined the phrase “Big Brother is watching you.” While it is interesting to note that Rockwell’s album came out in 1984, I am not aware of any connection between Rockwell’s song and the book.
¹¹ See 18 U.S.C. § 3127(3) (2000). See also, McLaughlin, supra note 7, at 428.
¹² See Deborah F. Buckman, Annotation, Allowable Use of Federal Pen Register and Trap and Trace Device to Trace Cell Phones and Internet Use, 15 A.L.R. Fed. 2d 537 at § 2 (2006). See also, McLaughlin, supra note 7, at 426-27.
¹³ See U.S. Const. amend. IV. Indeed, the standard is “probable cause” under Rule 41 of the Federal Rules of Criminal Procedure. Fed. R. Crim. P. 41; See also Buckman, supra note 12, at § 2.
¹⁴ See e.g., 47 U.S.C. § 1002(2) (2000)(“[W]ith regard to information acquired solely pursuant to the authority for pen registers and trap and trace devices . . . such call-identifying information shall not include any information that may disclose the physical location of the subscriber”).
¹⁵ A simple search shows it has been going on at least since 2005, though. See Ryan Singel, U.S. Cell-Phone Tracking Clipped, Wired.com (Oct. 27, 2005).
¹⁶ Rockwell, Lyrics, supra note 1.
¹⁷ See Buckman, supra note 12, at § 4. Note that the courts in the cases cited in the annotation appear to still be concerned about the extent of the tracking allowed.
¹⁸ 18 U.S.C. §§ 2701 – 2712 (2000).
¹⁹ See 18 U.S.C. § 2703(d).
²⁰ See Buckman, supra note 12, at § 2; see also, McLaughlin, supra note 7, at 428-29.
²¹ See, e.g., McLaughlin, supra note 7, at 431-33.
²² See McLaughlin, supra note 7, at 422-24.
²³ See generally Buckman, supra note 12; see also Gov't May Track Locations of Citizens That Have Cell Phones, ACSBlog (Nov. 30, 2007).
²⁴ Rockwell, Lyrics, supra note 1.
²⁵ See Nicole Ozer, ACLU Seeks Government Records on Use of Cell Phones as Tracking Devices, Bytes and Pieces Blog (Nov. 30, 2007). Theoretically, a party before a court can challenge evidence produced by such surveillance and the government must affirm or deny that the surveillance is lawful. See 18 U.S.C. § 3504 (2000). In practice, the government does not have to produce much to affirm that it acted lawfully; an affidavit often suffices. See George K. Chamberlain, Annotation, What Constitutes Adequate Response by Government, Pursuant to 18 U.S.C.A. §3504, Affirming or Denying Use of Unlawful Electronic Surveillance, 53 A.L.R. Fed. 378 (1981). Of course, if the argument is that the executive branch is bypassing courts to conduct surveillance illegally, then a logical extension is that the goal of accessing this information is something other than prosecution of suspects in the courts. The government’s possible response to a court challenge would be irrelevant to someone making this claim.
²⁶ See e.g., Scott Hershberger, New Technology Can Locate Incoming 911 Calls From Cell Phones, MSNBC, Jan. 29, 2008. For basic background information, see, e.g., Enhanced 911, Wikipedia, (last visited Feb. 13, 2008).
²⁷ GPS Technology Rescued Rape Victims, ClickOn Detroit, Jan. 23, 2008.
²⁸ For example, Verizon offers a navigation service on some phones; see Verizon’s website (last visited Feb. 13, 2008). Google offers a similar service (last visited Feb. 13, 2008)
²⁹ Or maybe this is just a matter of “ignorance is bliss.” See also McLaughlin, supra note 7, at 433, 442-44.
³⁰ Rockwell, Lyrics, supra note 1. For cell-phone tracking joke, I’d recommend checking out http://www.sat-gps-locate.com/english/index.html. I leave the experience as an exercise for the reader.