Often in the wake of the Sept. 11, 2001, terror attacks, the surveillance is conducted without a warrant.
The U.S. Supreme Court already has agreed to hear argument in a Washington drug case on whether using the Global Positioning System to track suspects without a valid warrant is unconstitutional. The justices said they also wanted to hear argument on whether the installation of a GPS device without a valid warrant violates the Fourth Amendment.
But away from the headlines, in the nation's second most powerful court, the U.S. Justice Department and the American Civil Liberties Union have been fighting a privacy battle over government tracking of suspects through their cellphones, again without a warrant.
In a statement last month, Catherine Crump, staff attorney for the ACLU Speech, Privacy and Technology Project said, "The ability to access cellphone location data is an incredibly powerful tool and its use is shrouded in secrecy. The public has a right to know how and under what circumstances their location information is being accessed by the government. A detailed history of someone's movements is extremely personal and is the kind of information the Constitution protects."
Outside of court in August, "34 American Civil Liberties Union affiliates across the nation ... are sending 379 requests to local law enforcement agencies large and small demanding to know when, why and how they are using cellphone location data to track Americans," the organization said. "The requests, being filed under the states' freedom of information laws, are an effort to strip away the secrecy that has surrounded law enforcement use of cellphone tracking capabilities."
The Bush and Obama administrations, of course, have maintained that the surveillance was necessary in the war against terror and crime.
In court on the federal level, the ACLU and the ACLU Foundation filed suit in July 2008 against the Justice Department under the Freedom of Information Act "seeking to obtain documents relating to the government's use of cellphone location data in criminal prosecutions. ... Cellphones generate several types of data that can be used to track their users' past or present locations with various degrees of precision," a panel of the U.S. Court of Appeals for the District of Columbia said.
"Concerned by reports that federal law enforcement agencies were obtaining these data from telecommunications companies without a judicial determination of probable cause," a necessary element for getting a warrant or making an arrest, the ACLU filed FOIA requests "with the Drug Enforcement Administration and the Executive Office for United States Attorneys, seeking information relating to the use of warrantless cellphone tracking by certain U.S. attorneys' offices," the panel said.
The ACLU wanted records relating to "the case name, docket number, and court of all criminal prosecutions, current or past, of individuals who were tracked using mobile location data, where the government did not first secure a warrant based on probable cause for such data, [and] policies, procedures and practices followed to obtain mobile phone location information for law enforcement purposes."
The panel explained that when government "wants to track an individual's location through his or her cellphone, it submits an application to a judge (usually a magistrate) seeking an order compelling a telecommunications company to provide access to the location data."
But the ACLU plaintiffs contended that prosecutors "appear to routinely take the view that the government can obtain cell site location information without a warrant, by simply presenting to a magistrate 'specific and articulable facts showing ... reasonable grounds to believe that ... the records or other information sought, are relevant and material to an ongoing criminal investigation.'"
In response to the suit, the Justice Department "agreed to conduct a search for the [information]. It did this by first asking the relevant U.S. attorney's offices to identify applications granted by judges (or magistrate judges), on or after Sept. 12, 2001, to permit the government to obtain cellphone location data from telecommunications companies, where the judge did not make a determination of probable cause. It then asked those offices to provide the docket information for any case in which an individual was prosecuted after such an application was granted.
"This inquiry generated a list of docket information for 255 criminal prosecutions."
But after compiling the list, the Justice Department withheld it from the ACLU, claiming it fell within FOIA exemptions.
Asked by each side for summary judgment -- judgment in the case without a formal argument -- a federal judge ruled there was "a greater privacy interest to persons who were acquitted, or whose cases were dismissed or sealed (and remain under seal), and a considerably lesser privacy interest to persons who were convicted, or who entered public guilty pleas."
The judge "held that the public interest in disclosure outweighed the privacy interest in the second category but not in the first. Accordingly, the court ordered the [Justice] Department to release the requested docket information only in cases that ended in convictions or public guilty pleas."
In addition, the judge "rejected the [ACLU's] argument that, because such applications are invariably filed under seal, disclosure of the applications' docket numbers would not reveal any personally identifying information. The [judge] found that disclosure 'could reveal surveillance targets yet to be prosecuted ... either because the cases are not actually sealed, or because the plaintiffs' promised motion to unseal could be successful.'"
Both sides appealed.
The three-judge appeals court ruled unanimously in a partial victory for the ACLU. The group could have the information approved by the judge, but could also have another crack at getting the information he did not approve.
"We affirm the [judge's] order requiring the release of the specified documents," the panel said in its opinion. "Because there are too many factual uncertainties regarding the remaining documents, we vacate" -- throw out -- "the balance of the court's decision [not to approve release of some information] and remand the case for further development of the record."
In other words, the judge would have to hear more argument and review more evidence before the court could decide whether the information could be kept private. And again, whatever the judge ruled, it would be evaluated in the second round by the appeals court.
"In deciding whether the release of particular information constitutes an 'unwarranted' invasion of privacy under [a FOIA exemption], we 'must balance the public interest in disclosure against the [privacy] interest Congress intended the exemption to protect.'" Citing Supreme Court precedent, the panel said, "The public interest that must be weighed in balance is the extent to which disclosure advances 'the basic purpose of the Freedom of Information Act' to open agency action to the light of public scrutiny, thereby furthering 'the citizens' right to be informed about what their government is up to.'"
No word on whether either side in the cellphone case will ask the full D.C. Circuit to rehear the case, or ask the Supreme Court for review, or simply let the case develop further in the trial court.
Meanwhile, the second electronic surveillance case dealing with GPS devices is scheduled for argument in the Supreme Court in November.
GPS provides the location of a device and the timing of its movements anywhere on the globe, even in bad weather, as long as the device is able to fix on four or more GPS satellites in orbits maintained by the U.S. government.
The private sector, such as hunters and hikers, and the military use GPS for a variety of purposes and its use by law enforcement is widespread.
In 2004, a joint Safe Streets Task Force of the FBI and Washington police targeted Antoine Jones, who owned and operated a nightclub in the District of Columbia and was suspected of narcotics violations.
In addition to a variety of techniques designed to link Jones to his alleged co-conspirators and to illegal drugs, agents also obtained a warrant from a federal judge authorizing them to secretly install and monitor a GPS tracking device on Jones' Jeep Grand Cherokee. The judge gave approval as long as the device was installed within 10 days and only within the District of Columbia.
But the agents did not install the device until 11 days after the warrant was issued, and while the Jeep was parked in a public parking lot in Maryland, not the district.
In October 2005, agents executed search warrants, recovering large amounts of cash, cocaine, drug paraphernalia and firearms and Jones was indicted.
Jones' lawyers moved to suppress the data from the GPS tracking device, but a federal judge ruled that any information gleaned while the Jeep was on public roads was admissible.
The jury acquitted Jones of some charges and was unable to reach a verdict on others.
However, a new federal grand jury, in a superseding indictment, charged Jones with a single count of conspiracy to distribute and possess 5 kilograms of cocaine and 50 grams or more of cocaine base. After a second trial in which prosecutors used GPS information, Jones was convicted of the sole count. A judge sentenced him to life in prison and ordered him to forfeit $1 million in proceeds from drug trafficking.
The U.S. Court of Appeals for the District of Columbia, the same appeals court that considered the cellphone case, reversed the conviction, saying Jones had a reasonable expectation of privacy in the public movements of his Jeep over the course of a month because he had not exposed the "totality" of those movements to the public -- "the whole of a person's movements over the course of a month is not actually exposed to the public because the likelihood a stranger would observe all those movements is essentially nil."
In a Washington statement in August, the ACLU said the outcome of the GPS case before the Supreme Court "could influence the rules police have to follow for cellphone tracking."
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