Warrantless Cell Phone Stalking: Can the Government Use Your Phone’s GPS?

July 3, 2008

Now here’s a really disquieting thought: virtually all new cell phones sold today have some form of passive GPS system (even if the phone itself doesn’t have features that use it). The ostensible purpose is for use in emergencies and 911, but information is information. And the result is that the government, at any time, without your knowledge, and apparently without a court order, can track your location via your phone: put a virtual tail on you.

You’d think that if the government felt it had the right to do this, it would at least inform the public of its new power. But despite ongoing suits by the ACLU and the EFF the government is still mum as to whether it’s done it… even though the documents uncovered so far suggest that they have.

But… I’m honestly not sure how I feel about this.

Kevin Drum discusses the issue here and here, and makes some good points. But he treats the idea that the government needs a court order to track people as obvious. I’m not so sure.

I do think Americans should have some expectation of privacy in their lives, and by and large, when the government wants to target them for any form of surveillance without their knowledge, a court should be involved.

I also think the legal issues over privacy are deeply muddled. The usual legal language used in this area is a “reasonable expectation of privacy.” But courts rarely mean that literally. There are many cases in which defendants pretty clearly did expect and fully believed that their was conduct was private, which should have made things an open and shut case. But often what courts really mean is “whatever reasonable expectation of privacy one might have if they researched the subject in depth.” On that score, the fact that most people don’t know that the government can use cell phone GPS’s to track them, and many don’t even know that their phones have GPS in the first place, will likely not count as a legitimate defense.

On the other hand, the information in question is collected by a private company, and all cell phone users implicitly agree to it in their service contracts. We might complain that no one really reads those darn things… but whose fault is that?

Once that information is collected, it’s no longer really the property of individual users, and if the cell phone companies want to create a database that keeps tabs on the location of every single one of their users over time… well, then can. And if they choose to hand this information over to the police…

The real problem here is that people are living in a world where technology is quickly changing what’s possible, but with very little re-examination of how that might alter the way we live, and what we demand from service providers and in terms of government legislation. And it’s probably going to take some scandals and crises before anything changes, and we as a society confront these sorts of issues head on.


Why “Where is the ACLU??” Often Ends in Intellectual Tragedy (Islamic School Edition)

April 10, 2008

The ACLU is not a perfect organization (though given that they are not monolithic, it’s hard to generalize). But by and large, they have the right idea about religious liberty, especially when it comes to preventing governments from superseding the rights of citizens to observe or not observe whatever religion they see fit and protecting private religious expression from government interference.

Unfortunately, there are a whole host of (mostly) conservative bloggers out there who seem incapable of distinguishing government action from private freedoms, and who rather ridiculously assert that the ACLU is out to destroy religious practice, rather than protect it from the government. Of course, the big problem for such people is simply all the rather awkward evidence to the contrary. What’s a crank conspiracy-theorist to do?

Well, luckily, they’ve hit upon a stopgap defense mechanism: anytime they come across a potential infringement of free speech or religious expression, an regardless of how much time has elapsed, whether anyone has even notified the ACLU, what the actual facts of the case are, or even if some other organization is already providing counsel, they cry “Where is the ACLU?!!” The implication is, of course, that the ACLU is deeply hypocritical: that their conspiracy isn’t savvy enough to at least pretend to care about this or that free speech/religious expression issue.

The problem is that this rallying cry so often ends in embarrassing tragedy. The latest case in point involves an Islamic school, sponsored by the government, which has apparently been caught coercing its students to pray, amongst other things. Part-time culture-warrior William Wallace raised the predictable cry: Where is the ACLU Now?

Where is the ACLU? The ACLU was all over the Dover PA school district for merely suggesting that life might have been designed by some unidentified creator as a violation of the so-called separation of of church and state. But here in Minnesota, it is “halal” (kosher) to fund Islamic schools.

This righteous outrage lasted for precisely one day, until a commenter happened to stop by and link to a letter from the ACLU to the school, asking them to stop exactly the practices that Mr. Wallace was complaining about. Oops.

And if that weren’t ridiculous enough, the letter is nearly a month old. So it’s Mr. Wallace that’s late to game in condemning the school: the ACLU might well have run their own blog entry entitled “Where is William Wallace on this issue, hunh?!?”

Mr. Wallace’s response?

The letter you cite is very interesting, in that is very friendly. It is as though the ACLU wants to teach the school how to continue to be a public Islamic school.

I’ll analyze the letter in more detail later; might make for an interesting blog.

This is what’s known as “changing the goalposts.” First the ACLU was evil because it was supposedly ignoring the controversy as part of some crafty plot to promote Islam and destroy Christianity. But when that implication became both ridiculous and even anachronistic, suddenly the ACLU is instead bad because their letter warning the school to stop its unconstitutional religious endorsement doesn’t call Muslims enough racial slurs in the process, or something.

I almost can’t wait for Mr. Wallace’s ‘analysis,’ but I suspect it may be delayed until he finds some means to remove the egg from his face.

More: If you’re interested in a vastly more sane analysis of the Islamic Charter School issue, Hemant over at Friendly Atheist has the goods.