Law Enforcement’s Growing Reliance On Cell Phone Data

MS. DIANE REHM

10:06:55
Thanks for joining us. I'm Diane Rehm. Law enforcement agencies are increasingly turning to cellphone carriers for information about their customers. Last year, they made an estimated 1.3 million requests regarding caller locations, text message content and other personal information. Joining me to talk about expanded surveillance via cell: Eric Lichtblau of The New York Times, Chris Calabrese of the ACLU, and Michael Sussman, attorney in private practice and a former federal prosecutor.

MS. DIANE REHM

10:07:39
I invite you to join the conversation. Call us on 800-433-8850. Send us your email to drshow@wamu.org. Join us on Facebook or Twitter. Good morning to all of you.

MR. ERIC LICHTBLAU

10:07:58
Good morning, Diane.

MR. CHRIS CALABRESE

10:07:58
Good morning.

MR. MICHAEL SUSSMAN

10:07:58
Good morning.

REHM

10:07:59
First, joining us by phone is Congressman Edward Markey. He's a Democrat who represents Massachusetts' 7th district. He's co-chair of the Bipartisan Congressional Privacy Caucus. Good morning to you, sir. It's good to have you with us.

REP. EDWARD MARKEY

10:08:20
Thank you, Diane, very much.

REHM

10:08:22
I know U.S. cellphone carriers to tell you about the number of requests they were getting from law enforcement groups and the number surprised you.

MARKEY

10:08:35
Yeah, it was pretty shocking that there had been 1.3 million federal, state, and local law enforcement requests for cellphone records and that the wireless carriers had complied with that in 2011, and that didn't even include T-Mobile who did not respond to my request for information. And what's even more disturbing is that this 1.3 million number is only requests.

MARKEY

10:09:14
The number could represent tens to hundreds of thousands of additional individuals due to the practice of requesting cellphone tower dumps in which the wireless carriers provide all the phone numbers of cell users that connect with a tower during a particular period of time. And as a result, law enforcement is looking for the guilty needle. But what about the rest of the innocent people in the haystack whose information they have now gathered?

REHM

10:09:48
So where are these requests coming from?

MARKEY

10:09:53
The requests come from, well, law enforcement all across the country at all levels, and the phone companies comply with it. But it is a vast expansion of information which never before has been placed into the hands of law enforcement officials in the country.

REHM

10:10:18
So what does the law say about this? What are telephone companies, cellphone carriers required to divulge?

MARKEY

10:10:32
Well, when there is a legally obtained court order or through emergency situations, the carriers must provide information to law enforcement agencies. And that is the basis for the gathering of the information, but there are huge questions that are basically raised by all of this because the number of requests is increasing every year. Verizon reported that there has been an annual increase of law enforcement requests of 15 percent year after year, and innocent people, families' information is being gathered as well.

MARKEY

10:11:25
What are the standards for the handling of that innocent information? What are the standards for how long that information is held by the phone companies? And I just think that -- again, I was following up on a story I read that Eric Lichtblau has written in The New York Times. I decided to pursue this so that we could actually understand the full scope of the problem and begin to put some new standards together.

REHM

10:11:51
I gather this goes back to 1986, the Electronic Communications Privacy Act, but did that act requires police only to certify that the information is relevant to investigation -- to an investigation. So that's pretty shallow as a request.

MARKEY

10:12:17
You know, you're pointing your finger right on it. We have to have standards now which are discussed in a way that deal with the reality of this modern wireless revolution. And, you know, the Fourth Amendment deals with search and seizure, and we need a new Fourth Amendment for the 21st century wireless world. Technologies change. They are not inherently good or bad.

MARKEY

10:12:53
There's a Dickensian quality to the technology. It's the best wires and the worst of wires -- wireless simultaneously. But we have to ensure as policymakers that time on American values animate the policies governing these technologies.

REHM

10:13:09
So back in 1986, when the law was written, you had only 340,000 subscribers. Now, you've got 88 percent of Americans who have these mobile phones. How are you proposing to change the law?

MARKEY

10:13:33
Well, I think that we need to ensure that the police should specify the individual whose information they are seeking. They should not be allowed to go on fishing expeditions that sweep up innocent people's information. In emergency circumstances, police should later certify that there was an emergency. There needs to be accountability because in emergency circumstances, police don't initially need a court order.

MARKEY

10:14:12
And the extent of time the carriers hold on to their customer's information that it turns out to be unrelated to the actual search is also a big question. And there has to be a standard to obtain the location information, and that should be probable cause just like for wire taps. What you say is just as sensitive as where you go.

REHM

10:14:43
So how much support do you think you're going to get for changing this law, especially when so many requests are now coming in from law enforcement agencies?

MARKEY

10:14:56
In my opinion, this is an area of recombinants political DNA. This is an area where ACLU Democrats and libertarian Republicans agree that there has to be a zone of privacy which is created with real protections so that it doesn't inhibit legitimate law enforcement activities. But it at the same time doesn't allow for a digital dragnet to gather the information about millions of innocent Americans with no standards whatsoever as to how that information is handled.

REHM

10:15:44
And defining that zone of privacy is going to be the tricky part. What about the Internet? How does the information that's carried on the Internet compare in its availability to law enforcement?

MARKEY

10:16:04
Well, you know, you have similar new questions which are raised by the Internet as more and more -- especially young people -- gravitate away from the wire line phone service as almost an exclusive means of communication to wireless and to the Internet. We have to ensure that the values of the black rotary dial phone era are then transmitted over to and animate these new technologies. The technologies themselves have no values. It's only what human beings decide to give these technologies in terms of the protections of the bill.

MARKEY

10:16:21
And so an automobile is great, but we decide that there are going to be stop signs, speed limits, seatbelts, air bags. And the same thing now has to be true for the Internet and for this wireless era. We have to decide what kind of privacy protection, what kind of Fourth Amendment protections that we're going to give to the American citizenry as we move deeper and deeper inexorably into this new world.

REHM

10:17:21
Congressman Edward Markey, he is a Democrat. He represents Massachusetts' 7th district. He's co-chair of the Bipartisan Congressional Privacy Caucus. Thanks for joining us, sir.

MARKEY

10:17:39
Thank you so much.

REHM

10:17:40
And turning to you now, Chris Calabrese, you say that 1.3 million requests is a lowball figure.

CALABRESE

10:17:52
It is. There's no question. I mean, the congressman noted T-Mobile didn't even respond. And we know that, again, these are the number of requests, not innocent people we're talking about. The cellphones dumps are going to be hundreds or thousands of innocent people maybe looking for one particular individual, so 1.3 million is the floor. I think we're looking at a substantially larger number of innocent people.

REHM

10:18:15
How great a number would you estimate?

CALABRESE

10:18:21
Well, it's, you know, it's hard to speculate. I mean, what's clear is that the standard is out of control. I mean, there really is no standard. The standard is all over the place. We did a FOIA of more than 200 police departments, and the standard was everywhere.

REHM

10:18:38
Chris Calabrese, he is legislative director for the American Civil Liberties Union. Short break. Your calls when we come back.

REHM

10:20:04
And as we talk about cellphone data collection by law enforcement agencies, here in the studio: Eric Lichtblau, reporter for The New York Times whose articles on this subject certainly highlighted the number of people whose cellphones are being watched and the data collected, Congressman Edward Markey spoke of reading Eric's pieces in The New York Times, Chris Calabrese is with the American Civil Liberties Union, Michael Sussman is an attorney in private practice and a former federal prosecutor.

REHM

10:20:53
Brian in Dallas, Texas, says, "You and your guests are discussing requests for information from cellphone companies. Congressman Markey also discussed court orders for this information. Are all of these requests made under court order? If so, it does not seem like much of a request to me." Eric.

LICHTBLAU

10:21:21
Well, no. The answer is that not all of these 1.3 million are made under court orders. A large chunk of them -- and it's difficult to do the actual breakdown, but a large chunk of them are done under the authority of the police department or the sheriff's office or the federal agency itself using essentially administrative subpoenas. And then there's a huge batch that are just considered emergencies where there's really no formal process.

LICHTBLAU

10:21:45
And that's probably the most problematic area because there is certainly hundreds of thousands, if not millions, of cases where there are legitimate emergencies and the police will tell you this is an essential tool in -- if you're dealing with an AMBER Alert, a missing child, an attempted suicide, and they wanted -- they need to get to a crime scene or a possible crime scene immediately.

LICHTBLAU

10:22:05
But there's also been a fair number of cases of abuses where the emergency definition is really overused and exploited because they just don't have the paper and the formal sign-off to use, and so they call it an emergency when it's really not.

REHM

10:22:20
Eric, talk about the amount of information that cellphone carriers can give to law enforcement agencies.

LICHTBLAU

10:22:30
Well, it really runs the gamut. I mean, anything that you can do and read and see on your cellphone is grabbable in some way or other. What was -- one of the things most interesting to me about the carriers' responses, this area had really been in the dark before, a lot of this information that was ferreted out by Congressman Markey's request, was just how prevalent the GPS tracking and location devices have become.

LICHTBLAU

10:22:55
I mean, most cellphones these days have some GPS tracking devices, and that's really, as in the case of these emergencies I was talking about and another situations, really the gold nugget for police is in being able to find out where someone is. Yes. There are times when they want to see text messages, when they want to know who you're calling, who called you, who is around the cell tower. But my impression from these was that really the biggest tool of all is finding out where someone is by using the telephone -- by using their cellphone tracking.

REHM

10:23:24
And what if their cellphone is turned off?

LICHTBLAU

10:23:28
It can still be activated. It's my understanding it can still be used whether it's on or off. The only -- I think the only foolproof way is to take out the battery.

REHM

10:23:37
And turning to you now, Michael Sussman, when is a warrant required and when is it not?

SUSSMAN

10:23:45
So -- that's a great question, Diane. There are two ways that law enforcement can get information. One is through the court order process, one is through emergencies. And so in the non-emergency aspect for location information, there is no standard. And you mentioned earlier Electronic Communications Privacy Act. That's an umbrella for three different laws: the Wiretap Act, the Stored Communications Act and the pen/trap statute.

SUSSMAN

10:24:12
None of them mentioned the word location in them, never mentioned. And the Wiretap Act goes back to 1969. So there have been amendments, but never an amendment to address location information. So the starting point for law enforcements, starting point for providers is there's no law on this. And so you have a situation where you begin with no law and that's the problem.

SUSSMAN

10:24:32
And so to your specific question about a warrant, traditionally a warrant is not required for location information. It's a court order that requires the judge to find the information to be relevant to a criminal investigation. And there's been what some call a magistrate's revolt. There have been a number of courts now that have found that probable cause is required, but it's a minority of courts. It's not the position taken by the Department of Justice either. And as Congressman Markey said, this an area that's just right for reform, and providers would love clarity.

REHM

10:25:05
And, Eric, explain what a pen/trap is.

LICHTBLAU

10:25:10
That's a way for law enforcement via the cellphone companies to get basically a history of who you've called and who's called you and get information on calling histories and patterns.

REHM

10:25:26
And, Chris, is it fairly easy to get that kind of information, or do you have to go back to either the warrant or the emergency request?

CALABRESE

10:25:39
Yeah. I mean, it's a lower standard. It's not a probably cause standard for pen/traps. It's a relevant standard.

REHM

10:25:42
I see. So your information is wide open.

CALABRESE

10:25:49
Well, it isn't wide open, but it relies on the large cadre of people at these providers who process the request. Many of them are recent college graduates who work hard at this. Some are career professionals. But, again, their toolbox does not include a specific standard. For emergencies, interestingly, there is a standard in the statute. Emergency is defined as information that's needed for risk of death or serious bodily injury. So there is something in the statute, but it's voluntary.

CALABRESE

10:26:22
I think someone said before providers are required in emergencies. It's voluntary. Law enforcement comes as we have this emergency, and that's where providers spend the time to explore the emergency, and not every emergency is an emergency. And I have to say that we find that law enforcement through and through, these people are committed to public safety, and they're trying to get information to help their cases.

CALABRESE

10:26:46
This isn't -- we're not seeing rogue law enforcement or people doing things outside their job. They're looking to solve their cases, perhaps, more quickly and efficiently. But there's a specific standard.

REHM

10:26:57
And joining us now by phone from Miami is John Bottone. He is vice president of the Federal Law Enforcement Officers Association. He is a former New York Police Department detective. Good morning to you, John.

MR. JOHN BOTTONE

10:27:16
Good morning. Thank you for having me on this morning.

REHM

10:27:18
From a law enforcement perspective, talk about what you see is the value of having access to cellphone subscriber data.

BOTTONE

10:27:31
Absolutely. First, well, I just want to say that, you know, everyone brings up valid point, and it's important. But this is a valuable tool for law enforcement in this country. You know, when the -- as soon as crime has been committed, you know, a child abduction, a kidnapping, a murder suspect that's being tracked, something that's a real heinous crime, a terrorist suspect, whatever the case may be, you know, oftentimes the only thing that we have is a phone number that tracks us back to that person.

BOTTONE

10:28:01
And time is of the essence. And, you know, when people are going out and seeking this information, they're not just going out blind. They're following up on a good lead that's pointing them to that phone number. And the bottom line is time is of the essence in a lot of these cases to track this person, find out who they are and try to solve these crimes. In a homicide, for instance, most of your homicides are solved within the first 48 hours.

BOTTONE

10:28:29
If -- oftentimes, it's committed by a person that knows that person, and, you know, they're on the run. So you have a limited time to track that person and to identify them and to, you know, to bring them to justice. And one of the tools that we use is identifying them through their phone number.

REHM

10:28:47
Can you briefly describe for us the process of getting this kind of information?

BOTTONE

10:28:57
Absolutely. First of all, you know, we don't just call the carrier and say, hey, I need this. In an emergency situation, you can get the information, but you're required to provide a court order within a short period of time explaining why you need it approved and why you need it. But let's say, for instance, a homicide, you got -- someone just killed someone, you know, killed three people, and the victim has a phone on the ground.

BOTTONE

10:29:26
The last person that called him may have been the person that murdered them. And that's only an indication of any evidence that you have, OK? The first thing the officer would do -- the detective would do is immediately contact the -- it depends on the agency. If they're federal, they have administrative subpoena power which they can write the administrative subpoena and get it to the carrier.

BOTTONE

10:29:51
The other option is to go through U.S. attorney or through the state's attorneys and get a grand jury subpoena, which would be handed over to the telephone company. Or in emergency circumstance, you notify the prosecutor, but you would call the carrier and tell them what's going on, it's emergency situation, and they will provide you the information. But they will expect you to provide them the subpoena within a short period of time.

REHM

10:30:14
I see. And, finally, from your point of view, what can be done to improve this process?

BOTTONE

10:30:23
I think, you know, from my experience dealing with phones -- and I've been dealing with cellphones for more than 20 years in the course of my investigations. The problem that I've seen from a investigative standpoint, that I think a lot of people are missing the picture and maybe we're not aware of it. I'm sure the carriers are, and everyone -- I just want to say that (unintelligible) you know, very educated about the situation. They all have a good view of what's going on, but we all have different standpoints.

BOTTONE

10:30:51
So basically, with this situation, it's important to realize that in today's world -- 20 years ago, there was much less amount of cellphones on the street. There was a lot of us people that were not as technically savvy as they are today. And in that situation, there was a lot lower numbers. Today, there's, you know, I believe they said, you know, 80 percent of people have cellphones today in the United States, OK, so everyone has a phone.

REHM

10:31:18
True.

BOTTONE

10:31:18
So there's a lot greater numbers, OK?

REHM

10:31:20
Right.

BOTTONE

10:31:21
And the thing that people don't realize is in today's world, they have these payphone -- these phones that you can go into a 7-Eleven or a Wal-Mart...

REHM

10:31:29
Right.

BOTTONE

10:31:29
...or any of these major stores, and you can purchase a phone where you buy the minutes. And you activate the phone right then and there.

REHM

10:31:38
Sure.

BOTTONE

10:31:38
And this is a big problem for law enforcement today because, you know, we're always -- in my eyes, we're always one step behind the bad guys. They're always trying to be, you know, technically ahead of us. And one of the things that they do in today's world, it's so easy to get what we call a throwaway phone or a payphone, you know, where they go into these stores, a 7-Eleven, a Wal-Mart, a Kmart.

BOTTONE

10:32:01
And they purchase these phones with relatively no ID, no process to know who they are. If a person goes up to a AT&T store or a Verizon store or any of these major carriers, they're required to provide a credit card, identification...

REHM

10:32:18
So you'd like to see clarification and identification before these kinds of throwaway phones are issued?

BOTTONE

10:32:32
Right. Anyone can go into a store and purchase these phones and activate it.

REHM

10:32:34
Right.

BOTTONE

10:32:35
I've run into situations where the phone was registered to Mickey Mouse or General (word?) or (unintelligible) pick a name.

REHM

10:32:42
Gotcha.

BOTTONE

10:32:44
And they register the phone under that name, and then now we get the subpoena. And we get the phone and like, oh, here we go.

REHM

10:32:51
All right.

BOTTONE

10:32:51
And the biggest problem is they're -- if they're an active criminal enterprise, oftentimes they dump these phones. So they'll have the phone and they're obviously law enforcement savvy, and they're aware that we're attempting to, you know, to arrest these people. So what do they do? They keep the phone for a day, a week, whatever the case may be, and they dump it. They just get another one.

REHM

10:33:15
All right. We'll leave it there. John Bottone, he is vice president of the Federal Law Enforcement Officers Association. And you're listening to "The Diane Rehm Show." Chris Calabrese, what do you make of all this from the ACLU's point of view? Is this going farther, faster without the kind of underpinning of regulation that the ACLU and other groups would like to see?

CALABRESE

10:33:52
Yeah, I think it is. I mean, what was striking in listening to the officer was his statement that now everybody has a cellphone. Well, if you look at that from one point of view, that means suddenly law enforcement has all these tools that they never had before. I mean, we're all basically carrying a portable tracking device with us at all times. I mean, imagine as a law enforcement tool, that's pretty useful.

CALABRESE

10:34:12
So we're not saying roll back the clock. Nobody is saying get rid of your cellphone. We're saying you need to have the same standards here that you would have in a traditional search warrant. This is sort of -- this is very personal detailed information. It's revealing everywhere you've gone, all your associations, whether you go to the bar or the church or your therapist.

CALABRESE

10:34:32
So because it's so sensitive, it reveals so much information, it should be like searching your house. There should be a probable clause standard. Law enforcement knows how to deal with that standard. They've been dealing it for many, many years.

REHM

10:34:43
But there are a lot of people who would say if you haven't done anything wrong, so what?

CALABRESE

10:34:50
You know, it's funny people say that, but I think there's a lot of things they'd be embarrassed by. I imagine they wouldn't want all their location to be revealed. If we said you have nothing to hide, so we're going to put it on the Internet, we're going to show everybody everywhere you've gone or even everywhere you've gone on the Internet, I think a lot of people would suddenly decide that they might have a little something they wanted to hide. And more importantly, you have a right as an American to live a private life.

REHM

10:35:15
Eric Lichtblau, what got you started reporting on this story?

LICHTBLAU

10:35:21
Well, I covered the whole surveillance versus civil liberties debate for a number of years now, and the explosion of cellphones has really given rise to a whole new set of questions on both sides for both law enforcement and civil liberties lawyers. The one thing I found perhaps most surprising about this batch of responses and reports in the carriers was you have them almost crying out for clarity from Congress for...

REHM

10:35:46
I can well imagine.

LICHTBLAU

10:35:48
Yeah. Well, these are obviously companies that are not usually pleading for regulation. They usually like to be left alone, but here, they said -- particularly in this area of GPS technology, which is growing so fast -- that we need better laws. We want Congress to step in and tell us when we can release certain information, what standard we need to meet, which I found very interesting.

REHM

10:36:08
So, Michael, complying with these requests on the part of the cellphone companies can always be cut-and-dry?

SUSSMAN

10:36:18
No, absolutely not. But in reform, court orders are the way to go. Subpoenas -- with any kind of court order, you have judicial review. So providers don't want to be in the position of, A, making life-or-death decisions about what is or isn't an emergency and picking which law or which court's view of the law to follow, so if there's a clear standard, a judge reviews the request and tells a provider to do something, providers will comply. And that's how the future should be for providers, clarity and...

REHM

10:36:47
But that's not how it is now.

SUSSMAN

10:36:50
No. You know, Diane, there are five different kinds of legal process that a provider could get a subpoena, particular kind of court order, search warrant, a wiretap order, a pen/trap order, and they're all used in different circumstances. So uniformity and clarity would be helping everyone here.

REHM

10:37:07
How likely do you think we are to get that?

SUSSMAN

10:37:11
It's difficult. I put it in the category of immigration reform and Social Security reform in that...

REHM

10:37:18
Zero?

SUSSMAN

10:37:18
Well, no. We're hopeful, but we don't know.

REHM

10:37:21
Michael Sussman, he's an attorney in private practice, former federal prosecutor. When we come back, we've got callers in Harrisburg, Pa., Aurora, Ky., Cincinnati, Ohio, Rochester, N.Y., and Dallas, Texas.

REHM

10:40:04
And as we talk about cellphone tracking, the laws surrounding it, the information gleaned, we'll open the phones, going first to Murphysboro, Ky. Good morning to you.

MALE

10:40:21
Good morning. The discussion so far has been very black-and-white, and what I want to provide is the perspective from the underground marijuana industry. Our concern aren't really with police officers that work within the law. Our concern are corrupt police officers. I'm going to give an anecdotal experience that I've gone through. I've had a friend who was busted. While he was being detained, someone robbed his house, robbed all of his -- there's a lot of cash involved in the marijuana industry, a lot.

MALE

10:41:00
And on the same token, several other of his business associates were also robbed, and one was confronted and shaken down by this corrupt police officer. It's not as black and white. You may say that there aren't bad officers out there using this information, but the police officer -- or the law enforcement gentleman you had on is very correct. We are aware. We do use disposable phones. We do get rid of disposable phones. Ironically, it's not because of police officers who are doing their job above the law. It's because of the criminal element within the police force.

REHM

10:41:40
Well, that's an interesting perspective. Michael Sussman.

SUSSMAN

10:41:46
We don't really come across that at providers. We don't find people coming to us for their own gains. People are trying to solve crimes. Sometimes they want to find -- solve them in a more efficient way. And what the caller talks to about -- he alleges corrupt police officers. There are people in every profession, usually hopefully a small, small minority, who break the law. Law enforcement has always had internal investigations and ways to police themselves as doctors do and other professions as well. So I can't comment on his specific issue.

REHM

10:42:15
Eric Lichtblau, is the number of surveillance of cellphones going on because of concerns about terrorism?

LICHTBLAU

10:42:28
Well, I think that's how the growth started, but what's really interesting about these numbers is that it's become so routine. I mean, it started out as a national security concern having to track the terrorist suspect, I mean, to know his movements, et cetera. You know, it's now clear that it is filtered down to virtually every level of law enforcement, from, you know, money laundering cases to bank robberies to crimes of violence. And, in fact, the numbers of wiretaps, which is the standard sort of use for terrorism cases, were actually going down while the cellphone requests are skyrocketing.

REHM

10:43:04
Interesting. To Harrisburg, Pa. Good morning, Alice.

ALICE

10:43:10
Good morning. My comment has to do with the program. I'm wondering why the focus is on the cellphone industry when the National Security Agency is building a $2 billion facility, the Utah Data Center, outside Bluffdale, Utah, which will be gathering information on all citizens, whether it's their Facebook post, their phone calls, their bank statements. There's an article in Wired magazine March 15 by James Bamford.

ALICE

10:43:45
And also, John Whitehead wrote in the Rutherford Institute publication on March 26, 2012 about this surveillance system that's going to be monitoring everyone's communications, bank records, transactions, total records, so...

REHM

10:44:03
All right. Let's see what the response is. Chris Calabrese.

CALABRESE

10:44:08
Well, she's right to be concerned, candidly. I mean, we really don't know. Just to speak to a very specific narrow set of issues, location tracking, we really don't know even what the law enforcement -- or, excuse me, what the national security power and authority is to gather that kind of information. We do have a lot of anecdotal evidence that this type of widespread gathering of all kinds of Internet data is happening.

CALABRESE

10:44:33
We've had some whistleblowers who are positioned to know that, discuss NSA literally wiretapping the entire Internet. They are building this huge data center in Utah. It's a reason for considerable concern. It's something the ACLU has been talking about a lot. Congress is poised right now to reauthorize the FISA Amendments Act which will legalize the Bush spying program. And it's an open question right now whether there will be oversight authority or more oversight authority over the NSA as part of that reauthorization. Obviously, that's something the ACLU would support.

REHM

10:45:06
It sounds as though that cellphone tracking may be a tiny, tiny part of this overall data collecting that Alice is concerned about.

LICHTBLAU

10:45:20
Yeah, I think that's right. The NSA is obviously a behemoth in the federal structure when it comes to collecting and analyzing information. But the thing to remember is that the federal government really relies on the phone companies as partners. That's sort of a grudging role that the phone companies play, but the fact is that they -- that the phone companies are essential because of just the networks that they have and the access that they have. As many tools as the NSA has to -- largely through satellites, they need the phone companies.

REHM

10:45:54
Chris, you mentioned that it is cause for reasonable concern among people. How concerned are you personally?

CALABRESE

10:46:07
Honestly, I'm very concerned because I don't know. I mean, there are many facets of government that are not secret. And the more you get into them, the more you understand they may be arcane, they may be complicated. But they're -- you know, a standard exists. There's legal justification and precedent for what's happening even in this confused area of cellphone tracking. I don't know what the National Security Agency is up to.

CALABRESE

10:46:30
I don't even have, really, more than the barest parameters of what they're collecting or what they're doing with it. And, you know, we know they're collecting domestic communications. I think that should trouble every American. I mean, transparency is really, you know, the basis for any democracy, and we don't really have that in the national security state.

REHM

10:46:48
Eric?

LICHTBLAU

10:46:50
Well, I agree. Certainly in the national security arena, whether you oppose or favor the types of collections that the NSA is doing, we know very little about it. And it's obviously shrouded in secrecy and has been even more so since 9/11.

REHM

10:47:05
Michael.

SUSSMAN

10:47:06
Well, that's a conundrum that, in the criminal aspect, you have not only supervision from Congress and courts but from greater supervision from the media and from the public in general. In the national security context, you have Congress passing the laws. You have federal judges who are approving warrants, and Congress, the intelligence and judiciary committees of Congress being briefed on what's going on.

SUSSMAN

10:47:30
A lot of internal oversight, but because it's a national security work and national security investigations, you don't have the public involved, and you don't have the press certainly welcomed in.

REHM

10:47:39
Is there any filter that we know about for this NSA collection, or do they simply sweep it all up in a huge net?

CALABRESE

10:47:53
You know, I try to be -- you know, I try not to engage in wild accusations or wild allegations, but it's hard to be fair to the NSA here because they don't tell you what they're doing. We certainly have seen evidence that collection is happening on the Internet. How that information is accessed once it's collected, we don't know. And, again, we don't even know the legal standard that they believe is appropriate to access this information in a lot of cases. That's really, you know, that's troubling. It's hard to give the NSA the benefit of the doubt. We need more oversight in transparency.

REHM

10:48:25
We have an email here. "Are cellphone carriers compensated for the information they provide to law enforcement agencies?" Eric.

LICHTBLAU

10:48:37
Yes, they are. Under federal law, for many of the operations they provide, they are allowed to claim their reasonable costs, which, for many of the big carriers, can add up to millions of dollars a year. There is, in fact, sort of an itemized menu of, you want a wiretap, it'll cost you $2,000, you want a cellphone tower dump, that'll cost you X hundred dollars per hour.

LICHTBLAU

10:48:58
But still, many of the cellphone companies, including in these responses to Congressman Markey, complained that they're -- this is still a money loser for them, and sometimes even when they submit their claims, they don't get paid by the local cops.

REHM

10:49:10
Michael.

SUSSMAN

10:49:11
The law provides for reimbursement. So it's reimbursement of cost. This is not a profit center. It's against the law to make money on compliance. The law just allows providers to get compensated for their expenses in complying with the court orders.

REHM

10:49:24
Here's an email from Steven, who says, "If carriers or Internet providers do provide your information to the court as part of a warrant or an order, does the carrier or provider have to inform you that your information was requested?" Michael.

SUSSMAN

10:49:49
In a criminal investigation, often -- usually not, and the court order will require nondisclosure for the period of investigation.

REHM

10:49:57
All right. To Rochester, N.Y. Good morning, John.

JOHN

10:50:02
Good morning. How are you doing?

REHM

10:50:03
Fine. Thanks. Go right ahead, sir.

JOHN

10:50:05
OK. The scenario would be -- it's fictitious. You know, I'm selling a boat, and they're data mining whatever on someone else that they're watching. Now, generally, it would be guilt by association, so they pry into your life, too. Who decides on who's guilty or not when the Constitution clearly says innocent until proven guilty, or it's not the way it is today?

REHM

10:50:29
I think that's an interesting question. Chris.

CALABRESE

10:50:33
You know, it is because we know that one of the things -- the way law enforcement builds investigations is by looking, for example, at someone and then looking at who they call and who they talk to. And that's how investigations happen. Well, you know, we now have a way to track all those different people, all the people you're calling sort of in a one-stop shopping at the carrier. You can find out who they call. You can find out location. You can find out all this information.

CALABRESE

10:50:59
If it's not regulated in some way, I mean, the temptation has got to be to collect it all, to pull as much of it in as possible 'cause it's easier for law enforcement. But, again, this is very detailed, very personal information, your associations, where you're going, historical record of your movement going back years. So the purpose of the Fourth Amendment of the Constitution isn't to say there should be reasonable limits. It shouldn't always be as easy as possible for law enforcement to get things because we do have the right to personal privacy in the United States.

REHM

10:51:29
All right. To Cincinnati, Ohio. Good morning, Zach.

ZACH

10:51:34
Good morning, Diane. I just had a question about some of the statistics on the information they're getting. And I think the question is kind of unanswered. It sounds like nobody is sure. But I worked as a dispatcher for about five years, and, just anecdotally, the vast majority of times that our police department was requesting information from phone companies, it was for suicidal subjects.

LICHTBLAU

10:52:01
That is certainly one of the categories that the police often cite. We're talking about why they need these emergency records, why there is not the time to go through the formal process, to go through the paperwork. It's because, you know, this is a crime or perhaps an imminent death, you know, that they need to act on now. And in situation like that, they would often use the GPS tracking device to find out where the person is.

REHM

10:52:23
Chris.

CALABRESE

10:52:24
And just to be clear, there are sort of two categories. There's the E-911 calls, and then there's separate emergencies instigated by law enforcement. It's clear there's a lot E-911 calls, but there's also a lot of these other law enforcement-instigated emergency requests.

REHM

10:52:38
All right. To Sudbury, Ontario. Good morning, Chris. You're on the air.

CHRIS

10:52:44
Hi. Thanks, Diane. I was a category assistant for prepaid phones for 7-Eleven in Dallas for about six years. And one of the things -- there's a lot more information that can be garnered from prepaid phones than people think. I had a contact from a law enforcement in Florida. They were looking for a murder suspect. And when I pulled the phone record, I had a list of the phone numbers and stuff that the person had called, but I also had a list of where they bought the airtime for their phone.

CHRIS

10:53:18
And I gave that information to the police officer in Florida. And they staked out the 7-Eleven that I suggested. They staked out, and they caught the guy the next day. The only reason I know this is because this police officer actually called me back to let me know. So I hear that a lot on TV and whatever people talking about prepaid phones being anonymous and that there's not much you can do. There really is a lot more that you can do than people think there is.

REHM

10:53:49
Do you agree, Michael?

SUSSMAN

10:53:51
Well, prepaid phones are just a lot more difficult for law enforcement because you're not giving any -- you're not giving your name. You're not authenticating who you are.

REHM

10:53:57
Sure. But...

SUSSMAN

10:53:58
The example the caller gives may work. That's very time-extensive -- intensive. It doesn't scale.

REHM

10:54:04
Michael Sussman, he is an attorney in private practice, former federal prosecutor. And you're listening to "The Diane Rehm Show." And to Bloomington, Ill. Good morning, Kip.

KIP

10:54:20
Good morning, Diane. Thanks for taking my call.

REHM

10:54:23
Certainly.

KIP

10:54:23
Kind of a question, comment being that it seems like our government has more paranoia against its own citizen and its safety from them than it does from the so-called terrorists. I wonder what you think of that.

REHM

10:54:39
Eric.

LICHTBLAU

10:54:41
Well, you know, I don't know whether you discuss this as paranoia or, you know...

REHM

10:54:45
Concern.

LICHTBLAU

10:54:46
...or aggressive police work. I mean, that's for people to debate in Congress and in public in general. I mean, but, you know, certainly as we mentioned earlier, this huge explosion started after 9/11 with concerns about having to use every technological tool to trace terror suspects.

REHM

10:55:03
So TSA would certainly be part of what's going on here, Chris?

CALABRESE

10:55:09
I'm sorry. Do you mean the NSA?

REHM

10:55:11
No, not the NSA but the...

CALABRESE

10:55:15
Oh, the transportation...

REHM

10:55:16
Yes. Exactly.

CALABRESE

10:55:17
Oh, yeah. I mean, I think, yes, TSA, that's where many Americans sort of most confront the really aggressive practices post-9/11 -- the pat-downs, the body scanners. And I think it is emblematic of a new attitude that, you know, really brings people under tremendous suspicion and subjects them to really invasive practices all in the name of security measures. And so here, we have it a little more invisibly.

CALABRESE

10:55:42
We have people being tracked potentially all the time and in a wide range of standards, learning where they're going all for, you know, the sake of law enforcement investigations.

SUSSMAN

10:55:52
I think the other point that we haven't touched on that's real important is that there was just a Supreme Court case a few months ago involving GPS tracking, not involving cellphones, slightly different context. The cops had put a tracking device on the car of a drug dealer.

SUSSMAN

10:56:03
But it was a somewhat conflicted ruling that muddied the waters and made it perhaps even unclear, if you were AT&T or Verizon, what you need, do you need a court order, et cetera, for GPS tracking. So that's made it -- the fact the Supreme Court couldn't really resolve this in a clean way has made the situation even more urgent.

REHM

10:56:23
So what you all seem to be saying is clarification is really the first order? Michael.

SUSSMAN

10:56:32
Sure. I think ACLU wants to see it, providers want to see it. I think it'll be helpful to law enforcement. I think that New York Times probably want to see it.

REHM

10:56:41
But this is all going to continue and probably even grow, Chris.

CALABRESE

10:56:46
Yeah. I think clarity is nice, but it has to be an appropriate standard. You can't -- it can't be clarity, which is give them whatever they want 'cause that's a clarity that doesn't honor Americans' privacy and their values.

REHM

10:56:57
Chris Calabrese, he is legislative director for the ACLU. Eric Lichtblau, reporter for The New York Times. Michael Sussman, he's an attorney in private practice, former federal prosecutor. Thank you, all.

SUSSMAN

10:57:16
Thank you, Diane.

CALABRESE

10:57:17
Thank you.

LICHTBLAU

10:57:17
Thank you.

REHM

10:57:17
And thanks for listening. I'm Diane Rehm.

ANNOUNCER

10:57:21
"The Diane Rehm Show" is produced by Sandra Pinkard, Nancy Robertson, Denise Couture, Susan Nabors, Megan Merritt, Lisa Dunn and Rebecca Kaufman. The engineer is Erin Stamper. Natalie Yuravlivker answers the phones. Visit drshow.org for audio archives, transcripts, podcasts and CD sales.
Transcripts of WAMU programs are available for personal use. Transcripts are provided "As Is" without warranties of any kind, either express or implied. WAMU does not warrant that the transcript is error-free. For all WAMU programs, the broadcast audio should be considered the authoritative version. Transcripts are owned by WAMU 88.5 FM American University Radio and are protected by laws in both the United States and international law. You may not sell or modify transcripts or reproduce, display, distribute, or otherwise use the transcript, in whole or in part, in any way for any public or commercial purpose without the express written permission of WAMU. All requests for uses beyond personal and noncommercial use should be referred to (202) 885-1200.

Our address has changed!

The Diane Rehm Show is produced by member-supported WAMU 88.5 in Washington DC.