CELLPHONE CARRIERS FACE MOUNTAINS OF SUBPOENAS

1.3 million subpoenas were issued by law enforcement agencies last year seeking text messages, caller locations and other information

An important police investigative tool is under attack by civil libertarians.

CELLPHONE SURVEILLANCE INCREASING
By Eric Lichtblau

The New York Times
July 9, 2012

WASHINGTON – In the first public accounting of its kind, cellphone carriers reported that they responded to a startling 1.3 million demands for subscriber data last year from law enforcement agencies seeking text messages, caller locations and other information in the course of investigations.

The data, which come in response to a congressional inquiry, document an explosion in cellphone surveillance in the last five years, with wireless carriers turning over records thousands of times a day in response to police emergencies, court orders, law enforcement subpoenas and other requests.

The cellphone carriers’ reports also reveal a sometimes uneasy partnership with law enforcement agencies, with the carriers frequently rejecting demands that they considered legally questionable or unjustified. At least one carrier even referred some inappropriate requests to the FBI.

The information represents the first time data have been collected nationally on the frequency of cell surveillance by law enforcement. The volume of the requests reported by the carriers – which most likely involve several million subscribers – even surprised some officials who have closely followed the growth of cell surveillance.

“I never expected it to be this massive,” said Rep. Edward Markey, a Massachusetts Democrat who requested the data from nine carriers, including AT&T, Sprint, T-Mobile and Verizon, in response to an article in April in The New York Times on law enforcement’s expanded use of cell tracking.

Markey, who is the co-chairman of the Bipartisan Congressional Privacy Caucus, made the carriers’ responses available to The Times.

While the cell companies did not break down the types of law enforcement agencies collecting the data, they made clear that the widened cell surveillance cut across various levels of government.

AT&T alone now responds to 230 emergency requests a day nationwide – triple the number it fielded in 2007, the company told Markey. Law enforcement requests of all kinds have been rising quickly among the other carriers as well, with annual increases of between 12 percent and 16 percent in the last five years. Sprint led the way last year, reporting more than 500,000 law enforcement requests for data.

With the rapid expansion of cell surveillance have come rising concerns – including among the carriers – about what legal safeguards are in place to balance law enforcement agencies’ needs for quick information against the privacy rights of consumers.

Under federal law, the carriers said they generally required a search warrant, a court order or a formal subpoena to release information about a subscriber. But in cases that law enforcement officials deem an emergency, a less formal request is often enough. Moreover, rapid technological changes in cellphones have blurred the lines on what is legally required to get data – particularly the use of GPS systems to identify the location of cellphones.

As cell surveillance becomes a seemingly routine part of police work, Markey said in an interview that he worried that “digital dragnets” threatened to compromise the privacy of many customers. “There’s a real danger we’ve already crossed the line,” he said.

Markey and other Democrats are considering legislation that they say would more clearly draw the line between giving the authorities the technological tools they need and protecting the privacy of the public.

With the rising prevalence of cellphones, officials at all levels of law enforcement say cell tracking represents a powerful tool to find suspects, follow leads, identify associates and cull information on a wide range of crimes.

“At every crime scene, there’s some type of mobile device,” said Peter Modafferi, chief of detectives for the Rockland County District Attorney’s Office in New York, who also works on investigative policies and operations with the International Association of Chiefs of Police. The need for the police to exploit that technology “has grown tremendously, and it’s absolutely vital,” he said in an interview.

The surging use of cell surveillance was also reflected in the bills the wireless carriers reported sending to law enforcement agencies to cover their costs in some of the tracking operations. AT&T, for one, said it collected $8.3 million last year compared with $2.8 million in 2007, and other carriers reported similar increases in billings.

Federal law allows the companies to be reimbursed for “reasonable” costs for providing a number of surveillance operations. Still, several companies maintained that they lost money on the operations, and Cricket, a small wireless carrier that received 42,500 law enforcement requests last year, complained that it “is frequently not paid on the invoices it submits.”

As cell surveillance increased, warrants for wiretapping by federal and local officials – eavesdropping on conversations – declined 14 percent last year to 2,732, according to a recent report from the Administrative Office of the United States Courts.

The diverging numbers suggest that law enforcement officials are shifting away from wiretaps in favor of other forms of cell tracking that are generally less legally burdensome, less time-consuming and less costly. (Most carriers reported charging agencies between $50 and $75 an hour for cellphone tower “dumps.”)