With the increasing ubiquity of “smart” cell phones that regularly pinpoint and log locational information, the potential to track the geographic whereabouts of hundreds of millions of Americans is increasingly feasible. Some fear that this technological development, coupled with what they refer to as a “secret legal interpretation” of the USA PATRIOT Act, could be leading to mass surveillance of Americans based on cell phone owners’ geo-location data.
Also known as the business-records provision, the PATRIOT Act’s Section 215 allows the Department of Justice to ask secret Foreign Intelligence Surveillance Act (FISA) courts to grant the FBI authority to obtain any business records it wants, regardless of whether the information is requested in pursuit of a specific terrorism threat. Combine this authority with the GPS data holdings of America’s telecommunications companies, and some envision a mass government database tracking Americans’ every cell phone-carrying move, based on their GPS coordinates. In 2010, the Justice Department reported 96 FISA requests, up from just 21 the previous year.
One German politician’s effort to obtain all the geo-locational data from his cellular service provider is instructive: Over the course of six months, his phone automatically logged his geographic coordinates more than 35,000 times – about once every 10 minutes. The information was later plugged into an interactive map by the German newspaper Die Zeit.
Here in the United States, Sen. Ron Wyden has stoked the latest round of speculation. As a member of the Senate Intelligence Committee, he is privy to sensitive and classified information most Americans are not, including the Justice Department’s classified legal interpretation of the business-records provision. Though he cannot speak specifically of what he knows, Wyden cosponsored an amendment to the latest PATRIOT Act reauthorization that would have required the attorney general to submit an explanation of how the department is interpreting the law, including Section 215.
“When the American people find out how their government has secretly interpreted the PATRIOT Act, they will be stunned and they will be angry,” Wyden said on the Senate floor in May. Separately, several different pieces of legislation have been filed that would put limits on telecommunication companies’ ability to disclose geo-location data and on law enforcement’s authority to collect the information. These efforts are aimed at clearing up the judicial ambiguity that surrounds whether or not geo-location tracking is in violation of Americans’ Fourth Amendment right to protection against unreasonable searches and seizures.
It’s not difficult to imagine why such information would be of interest to intelligence analysts: Enough data could easily produce a map of associations based on frequency of proximate locational data. Just as link analysis can be used to make suspects out of those who send or receive phone calls from other already suspected terrorists, an individual whose geographic coordinates frequently align with those of a suspect could be subject to the same sort of investigation by association. Already, a burgeoning industry of IT companies has cropped up to provide the analytic capability to make sense of geo-locational data.
The American Civil Liberties Union has filed a Freedom of Information Act request to uncover more details on the Justice Department’s interpretation of Section 215. The results of that request will be something to watch for.
