Law enforcement agencies in the U.S. made more than 1.3 million requests for consumers' cellphone records in 2011, an alarming surge over previous years that reflected the increasingly gray area between privacy and technology.
Cellphone carriers, responding to inquiries from a member of Congress, reported responding to as many as thousands of police requests daily for customers' locations, text messages and call details, frequently without warrants. Special legal teams operating round-the-clock have been set up to field requests, and some carriers hoping to recoup their costs have created detailed menus of what records can be provided — and for what price.
The reports — the first comprehensive review of the extent of law enforcement requests in the U.S. — shed light on the difficulties cellphone carriers face in balancing consumer privacy and public safety. They also prompted civil libertarians to decry the lack of legal clarity about when and how carriers should hand over information about their customers.
At AT&T, a team of more than 100 workers handles the requests pouring in from local, state and federal law enforcement agencies. More than 250,000 such requests came in last year — a more than two-fold increase over five years ago.
Sprint said it received about 500,000 subpoenas in 2011. Verizon and T-Mobile, two other major U.S. carriers, both reported annual increases in requests exceeding 12 percent. Cricket has seen a steady increase every year since 2007, and although the company once had a 10-person team handling inquiries, it has now outsourced that task to a company called Neustar.
Many of the requests cover a number of cellphone subscribers.
The costs have become so large that carriers have started charging law enforcement for the records they turn over. AT&T collected almost $8.3 million in 2011 in fees from police agencies, although the company said it believes that number falls far short of what it costs AT&T to accommodate the requests.
Police requesting data from U.S. Cellular are asked to pay $25 to locate a cellphone using GPS (the first three requests are free), $25 to retrieve a user's text messages and $50 for a "cell tower dump" — a breakdown of all the cellphones that interacted with a given cellphone tower at a specific time.
"Cell phone records have clearly become central to many, many law enforcement investigations," said Chris Calabrese, an attorney with the American Civil Liberties Union. "The danger is that the standard is very unclear."
All the companies that responded to letters from Rep. Ed Markey, D-Mass., said that under normal circumstances, only requests that came with a warrant attached were granted. T-Mobile said it had referred two inappropriate requests from law enforcement to the FBI, and rejected other requests where people had impersonated police officers. Others said they complied with subpoenas, which don't require sign-off from a judge.
But there's a major exception for emergencies, or "exigent circumstances." If a 911 call center believes there is an immediate threat to someone's life, it can bypass the need for a prosecutor or a judge to sign off on the request. All that's needed, in most circumstances, is a simple form.
"If a victim goes missing and they had a cell phone with GPS technology, would you, as a loved one, want us to have to wait for a subpoena or court order even though we know someone might be in dire straits?" said Chris Perkins, the police chief in Roanoke, Va.
Federal law, which has yet to fully adapt to today's high-tech, wireless society, has much to say about wiretaps and home searches but surprisingly little to say about cellphone records. The law is especially vague when it comes to GPS tracking, a relatively new issue triggered by the widespread adoption of smartphones that help users navigate from place to place.
Many states and local courts have been left to come up with their own requirements for when a warrant is required to track someone's location, leading to an array of conflicting policies that create a headache for those tracking suspects of victims across state lines.
In May, Sen. Al Franken, D-Minn., asked the Justice Department how many requests for location information it had filed with cellphone carriers, and what legal standard applies when making such requests. The department said it didn't keep a running tally and couldn't offer numbers, but that in regular criminal investigations, a court order is used to compel carriers to provide the information.
"This information is critical to such investigations into a wide variety of offenses, including murder, bank robbery, gang activity, fraud, sexual exploitation of children and kidnapping," wrote Acting Assistant Attorney General Judith Appelbaum.
Franken said he was troubled by the magnitude of the requests revealed Monday in Markey's reports, which were first reported by The New York Times. He said it's unacceptable that the Justice Department isn't tracking its own requests.
"The department has a lot of questions to answer, and it's clear we must do more to strike the right balance between the needs of law enforcement and privacy," Franken said.
Those seeking clarification for what is in or out of bounds looked hopefully in January to the U.S. Supreme Court, which took up the GPS issue when it ruled that law enforcement cannot attach GPS tracking devices to someone's vehicle without a warrant. But the ruling was narrow and didn't deal specifically with cellphones already in someone's possession that happen to have GPS capabilities.
Bipartisan bills to address the issue were introduced in the House and Senate a year ago but never moved out of committees. The Digital Due Process Coalition, an assortment of groups including cellphone carriers and civil liberties advocates, wants the Electronic Communications Privacy Act amended to deal with it. That law was enacted in 1986, long before cellphones became a basic accessory.
"We don't know the standard that is used for the gathering, handling or disposal of information about innocent Americans," Markey said in an interview. "We need a Fourth Amendment for the 21st century. Technologies change."
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