Hullabaloo

Friday, November 23, 2007

 
Probable Violations

by digby

I really need to get out more. I hadn't even heard of this lurid "Perugia" murder tale until a couple of days ago, which I guess has been blasting all over the tabloids here and in Europe for weeks. I'm a little bit surprised the cable news networks haven't been all over it seeing as it features an American college student in Italy who, along with a couple of accomplices, allegedly raped and killed her British roommate when she refused to go along with a night of "extreme sex." It seems tailor made for the holidays.

Anyway, I don't bring it up because I want to spread the word about this horrific crime, but because of an element in the investigation that suddenly has some resonance with our current predicament here in America with respect to the lawless US government deciding that the fourth amendment is no longer operative.

It appears that the female suspect in this crime fingered a north African bartender as one of the accomplices. (From what I gather, there was also some security video evidence to support the fact that a black man was present.) The Italian police arrested the fellow, who did know the suspect and the victim, on the basis of this suspect's word (who has told several radically different accounts of what happened that night) and the fact they had information from the cell phone company that he was "in the area" that night --- which brings me to my long laborious point.

The cops have now released the guy because the real suspect turned up in Germany where he is being held for extradition. It makes you wonder about the usefulness of this cell phone tracking evidence.

And even if it is useful, you would certainly think that at least in America, that the police would have to have probable cause to get a warrant. Apparently not:

Federal officials are routinely asking courts to order cellphone companies to furnish real-time tracking data so they can pinpoint the whereabouts of drug traffickers, fugitives and other criminal suspects, according to judges and industry lawyers.

In some cases, judges have granted the requests without requiring the government to demonstrate that there is probable cause to believe that a crime is taking place or that the inquiry will yield evidence of a crime. Privacy advocates fear such a practice may expose average Americans to a new level of government scrutiny of their daily lives.

[...]

In many cases, orders are being issued for cell-tower site data, which are less precise than the data derived from E911 signals. While the E911 technology could possibly tell officers what building a suspect was in, cell-tower site data give an area that could range from about three to 300 square miles.

Since 2005, federal magistrate judges in at least 17 cases have denied federal requests for the less-precise cellphone tracking data absent a demonstration of probable cause that a crime is being committed. Some went out of their way to issue published opinions in these otherwise sealed cases.

"Permitting surreptitious conversion of a cellphone into a tracking device without probable cause raises serious Fourth Amendment concerns especially when the phone is in a house or other place where privacy is reasonably expected," said Judge Stephen William Smith of the Southern District of Texas, whose 2005 opinion on the matter was among the first published.

But judges in a majority of districts have ruled otherwise on this issue, Boyd said. Shortly after Smith issued his decision, a magistrate judge in the same district approved a federal request for cell-tower data without requiring probable cause. And in December 2005, Magistrate Judge Gabriel W. Gorenstein of the Southern District of New York, approving a request for cell-site data, wrote that because the government did not install the "tracking device" and the user chose to carry the phone and permit transmission of its information to a carrier, no warrant was needed.

These judges are issuing orders based on the lower standard, requiring a showing of "specific and articulable facts" showing reasonable grounds to believe the data will be "relevant and material" to a criminal investigation.

Boyd said the government believes this standard is sufficient for cell-site data. "This type of location information, which even in the best case only narrows a suspect's location to an area of several city blocks, is routinely generated, used and retained by wireless carriers in the normal course of business," he said.

This entire area of the law is getting very scary. I don't know about you, but when I got my cell phone I didn't know that I was giving the government blanket permission to track my every move without probable cause, did you?

And this particular type of "evidence" isn't even particularly reliable, as evidenced by the awful tale of that fellow in Italy who was fingered for a crime he didn't commit. (If the real suspect hadn't turned up this man would not have been released --- in Italy, they can hold people for up to a year without charging them.)

I don't doubt that this tracking can be useful in tracking someone on the run, but judges or magistrates have an obligation to honor the fourth amendment and make the police show probable cause before issuing a warrant. I can't imagine why they think otherwise. Just because you buy a cell phone doesn't mean that you've signed away your constitutional rights. The case of Mr Lumumba shows exactly why those rights are necessary.


Update: Marcy Wheeler has more. Seems this is part of the new right wing "there is no such thing as privacy" philosophy.


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digby 11/23/2007 01:42:00 PM |