Tracking a Sprint Nextel cellphone. Image: U.S. District Court — Southern District of Ohio.
Cellphone companies are objecting to proposed California legislation that would force them to publicly report the number of times they turn over cellphone location information to police and federal agents, arguing that it’s too burdensome, and would take time away from the important work of sharing customer data with cops “day and night.”
At issue is California’s SB 1434, a bill that would prohibit carriers from turning over locational data to police without a warrant. That data can include when and where a phone was when it made or received calls; a phone’s whereabouts as it pings cellphone towers or, in the extreme case, a phone’s GPS history.
The companies, including AT&T, Sprint, T-Mobile and Verizon, oppose a provision of the bill that would force them to keep track of law enforcement requests and to annually publish that information on the internet.
“These reporting mandates would unduly burden wireless providers and their employees – who are working day and night to assist law enforcement to ensure the public’s safety and to save
lives,” wrote the Wireless Association, a trade group representing the industry, in a letter (.pdf) to the California lawmaker proposing the privacy bill.
The American Civil Liberties Union unveiled a study two weeks ago, based on records obtained from open-government laws, showing that the practice of obtaining such cellphone data, without court warrants, is widespread across America.
Nicole Ozer, an ACLU staff attorney, scoffed at the industry’s claims that the reporting requirements in California’s proposal would be burdensome. The ACLU’s study showed that the carriers are already keeping track of data requests in order to invoice the police for the cost of surveillance.
A Sprint document the ACLU obtained in its study shows that the carrier billed the Phoenix Police Department $460 for the “GPS Pings” of a mobile phone over a two-day period in 2009.
“Bottom line is that our mobile phone companies should be working for us, their customers, not the police,” Ozer said.
The California bill, offered by Mark Leno, a senator from San Francisco, requires state law-enforcement officials to get a warrant when seeking any cellphone location data, both future and past. Courts nationwide are mixed on whether a probable-cause warrant is required to obtain mobile-phone location data. As many as nine states have proposed legislation similar to Leno’s.
The practice of getting such data from phone companies without warrants is also embraced by the Obama administration, which maintains Americans have no expectation of privacy of such cell-site records because they are “in the possession of a third party” — the mobile phone companies.
The position has taken on a new level of importance following the Supreme Court’s ruling in January concluding the government is conducting a search when it secretly affixes a GPS device on a vehicle. While the court remained silent on whether that search required a warrant, the Justice Department has taken the position that warrants are required in most instances.
With warrantless GPS tracking off the table, the federal government is turning to warrantless mobile phone tracking, and also saying the high court’s GPS ruling does not apply to warrantless phone tracking.
The administration said that the cellphone data is not as precise as GPS tracking data and, “there is no trespass or physical intrusion on a customer’s cellphone when the government obtains historical cell-site records from a provider.”
Even if Leno’s measure reaches Gov. Jerry Brown’s desk, it’s unclear whether he would sign it.
Last year, the governor vetoed legislation requiring police to obtain a court warrant to search the mobile phones of suspects at the time of any arrest. The veto means that when police arrest anybody in the Golden State, they may search that person’s mobile phone — which in the digital age likely means the contents of persons’ e-mail, call records, text messages, photos, banking activity, cloud-storage services, and even where the phone has traveled.
Leno’s measure gets its first hearing in a state Senate committee Tuesday.
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