The thing that is so interesting about this subject on cellphone tracking and electronic surveillance as a whole is not that it exists but rather the laws and acts which govern its use. The two main things that govern the use of electronic surveillance are the 1984 Electronic Communications Privacy Act and the 2001 USA PATRIOT Act, the later amending the former.

Background

Here's a snippet I took off Wikipedia (EN) - "In Katz v. United States (1967), the United States Supreme Court established its "reasonable expectation of privacy" test. It overturned an earlier decision and held that wiretaps were unconstitutional searches, because there was a reasonable expectation that the communication would be private. The government was then required to get a warrant to execute a wiretap.

Ten years later the Supreme Court held that a pen register is not a search because the "petitioner voluntarily conveyed numerical information to the telephone company." Smith v. Maryland, 442 U.S. 735, 744 (1979). Since the defendant had disclosed the dialed numbers to the telephone company so they could connect his call, he did not have a reasonable expectation of privacy in the numbers he dialed. The court did not distinguish between disclosing the numbers to a human operator or just the automatic equipment used by the telephone company.

In order for law enforcement agencies to get a pen register approved for surveillance, they must get a court order from a judge. However, they need only certify to the judge that the information likely to be obtained is relevant to an ongoing criminal investigation, at which point the judge 'shall' issue the order." -unquote

Now to divert a little. The fact that the 1984 Electronic Communications Privacy Act and especially the 2001 USA PATRIOT Act offer very little to no costitutional protection to a person is no suprise. Essentially all that is needed to aquire legal authority to surveil and track you is the "reasonable expectation of privacy" loophole. Just about everything you can imagine that is done electronically is deemed 'public knowledge' and your rights to privacy are forfeited the moment you sign the contract with your ISP or cellphone service provider.

To highlight the broad and invasive implications these two acts have on an everyday persons expectation of privacy, you only need to look at the very unpopular offensive that the RIAA (Recording Industry Association of America) has taken in sueing the end users of file sharing programs. What people don't seem to understand is that when these acts are enacted they have broad and long lasting implications into the future. As we have seen with the RIAA using the 1984 Electronic Communications Privacy Act's to subpoena the ISP's of subscribers to obtain their IP address as it falls under the ECPA's ongoing criminal investigation clause.

You see, this does not just cover the narrow are of electronic surveillance but it also encompasses a plethora of every conceivable area of a persons privacy. Especially when you consider the fact that electronic use is so ensconced into our everday lives it can be considerd 'our lives' not just some petty deviation that has no connection to "peoples reasonable expectation of privacy."

I'm all for "protecting the people" but when does protecting the people just become a cover for unchecked authoritarianism?


[ reply ]

Link to this comment: http://www.securityfocus.com/comments/columns/376/32909#32909