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Keeping Tabs

Armed with technology, police chart our whereabouts through tricky legal terrain

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You may not glimpse the cellphone signals bursting through our city every day, but somebody does—namely law enforcement agencies that tap increasingly precise technology to keep tabs on crooks and rescue the endangered.

But while the cops contend that surveillance such as cellphone tracking can only be used with court permission under very specific circumstances, privacy advocates argue that pervasive mining of cellphone information gathers far too much information on law-abiding citizens.

In response, groups such as the American Civil Liberties Union issue have called for a national policy to set boundaries on the use of these invasive tools.

"Different courts have ruled differently on this issue, which is why we think we need federal legislation mandating a warrant" for cellphone tracking information, says Alessandra Soler, executive director of the ACLU of Arizona. "It's basically the same idea as why you need a warrant to go into somebody's house. The bigger-picture problem is that this technology is really far outpacing the privacy laws. Police departments get grants from the federal government to utilize pilot projects with these new technologies, but they never have actual policies in place that limit abuses.

"It's everything from license plate readers, cellphone tracking and video surveillance to cameras on police officers. And there's rarely any opportunity for the public to weigh in on this technology and how it's going to impact their civil liberties and their privacy rights."

Police departments argue that they do seek warrants in all nonemergency situations, meaning they must constantly justify their actions before judges. Anything less, they say, could sink a criminal prosecution.

Yet in reviewing more than 5,000 pages of police records from 205 departments across the country, the ACLU found that many agencies granted themselves broad latitude when tapping into private information.

This trend dates from the aftermath of 9/11, when President George W. Bush authorized the National Security Agency to track vast amounts of email and cellphone data without search warrants. That controversial power was expanded by Congress in 2008, when the Bush administration gained legal immunity for phone companies that cooperated with the government.

Law enforcement agencies have since embraced this perspective, critics say, by making their own use of intrusive technology nearly routine—even as the courts struggle to set limits. In 2010, for instance, a federal appeals court ruled that judges can demand warrants before allowing police to gather information from cellphone providers. And in January 2011, the U.S. Supreme Court ruled that police violated a suspect's Fourth Amendment rights when he was monitored through a global positioning system device they had placed on his car.

The tempest hasn't gone unnoticed here at home, where both the Tucson Police Department and the Pima County Sheriff's Department say they diligently observe legal mandates in requesting information from cellphone companies.

"It typically requires a warrant because of the Supreme Court ruling, and we abide by that," says Sgt. Maria Hawke, a TPD spokeswoman. "That's been our policy for years."

At the same time, the type of case dictates how such information will be used, she says. "If it's a suspect that has to do with narcotics trafficking or something like that, it will be built into the case but in a slightly different format, because victims' information has to be protected in a different way than a suspect's does."

Warrants can also be tailored to include more than one target, "as each individual circumstance depends upon what the detectives ask for and what they deem necessary."

According to Hawke, emergency situations such as kidnappings can require police to preempt the court, prompting them to seek warrants only after tracking has already occurred. "It could be argued in court, just as anything could be argued in court after the fact," she says. "But there is a legal exception to the warrant requirement."

The sheriff's department follows the same protocol when tracking phones from the cell towers they've used, says Deputy Tom Peine. That information is typically gathered after the fact, and always with a search warrant, he says. Then it is used to place suspects in certain locations at various times. Occasionally, the department also track phones in real time by GPS, "but it's a very rare occasion, and only done under the umbrella of a search warrant."

Meanwhile, phone companies themselves have faced tough scrutiny. Last year, wireless giant Verizon responded to questions from Massachusetts Rep. Ed Markey, a Democratic telecommunications watchdog, about its protection of customer data.

In a letter to Markey obtained by the Weekly, the company cited roughly 260,000 law enforcement requests in 2011, for everything from wiretaps and traces to text messages. According to the letter, about half of those requests were accompanied by subpoenas; the remainder arose from warrants or court orders. The number of requests has grown by approximately 15 percent each year over the past five years, it says, and each is reviewed by specially trained employees who decide whether to comply.

"Protecting our 93 million customers' privacy is one of Verizon Wireless' highest priorities," the letter says. "Yet we also have a legal obligation to provide customer information to law enforcement in certain situations."

Over at TPD, Sgt. Hawke didn't immediately have numbers on just how frequently her department requests cellphone information. "It doesn't happen in every investigation," she says, "and even a ballpark figure would be extremely difficult, because we have a number of different investigative units throughout the city."

Deputy Peine says the sheriff's staff treads carefully when requesting cellphone information. "You would probably face some questions from a judge if you're talking about a stolen garden hose that you want somebody's cellphone data on. How do you justify that?

"You can't do this in a criminal damage case. Typically, it's got to be serious crimes against people, like sexual assaults, aggravated assaults or murders. You have to convince a judge that you can violate someone's constitutional rights to privacy—and, usually, judges are very finicky with that."

But such assurances are cold comfort to privacy advocates such as Soler of the ACLU. She contends that cellphone companies still surrender vast amounts of personal information far too easily. "What we're saying is that the Constitution requires limited surveillance that's based on actual evidence of criminal wrongdoing. Right now, there's absolutely no limitation."

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