8 a.m. eastern into monday morning at 8 a.m. eastern nonfiction books all weekend every weekend right here on c-span2. >> here's a look at what's ahead on c-span2. .. >> host: well, over the past year or so there have been a series of police actions regarding cell phone tracking, shutting down of cell phone towers, the use of drones

domestically, etc., and there have been a series of news articles about these topics, and that's our topic this week on "the communicators." technology, the use of technology and police surveillance. joining us from our new york studio is catherine crump who is a staff attorney with the american civil liberties union and, also, our guest reporter this week, josh smith of the national journal. ms. crump, if we could start with the recent report that the aclu put out on the use of cell phone tracking by police departments, what was this report about? >> guest: the aclu as believed for some time that police departments around the country are tracking people's cell phones on a routine basis often without getting a warrant based on probable cause. that's what we thought, but we weren't actually sure. and so in august 35 aclu affiliates in 32 states around

the country filed a total of just over 380 public records with different law enforcement agencies asking for information about their policies, procedures and practices for tracking cell phones. and the report we put out earlier this month documented the findings from that study. >> host: and what did can you find? >> guest: we found that virtually all law enforcement agencies who responded to our request engage in cell phone tracking, that is, in fact, now a completely routine sur sail lance -- surveillance tool that's just common in law enforcement agencies' arsenals. and moreover, we found frequently law enforcement agencies track the location of cell phones without getting a warrant based on probable cause, and that's of concern to the aclu because where you go can reveal a great deal about you, and we don't think it's the type of information law enforcement should be gathering without getting a warrant based on probable cause.

>> host: so, catherine crump, are the police departments doing this based on some federal or state legislation, or are they doing it through a lack of legislation? >> guest: there is legislation that governs electronic privacy in this country, but unfortunately it's often quite out of date. the federal electronic communications privacy act actually hasn't been meaningfully updated since 1986. that was before the worldwide web was invented and a long time before most of us had cell phones. and unfortunately, under this law and also under the constitution it's not exactly clear when the government needs a warrant in order to track someone using a cell phone and when that actually violates a person's rights. and i think because of this void in the law, law enforcement agencies are frequently tracking people without getting a warrant. um, we believe the better argument is that they should get a warrant, but the law is far from clear. >> host: josh smith of "the national journal."

>> host: hi, catherine. i was wondering if you could explain what kind of information law enforcement are gathering when they ask or when they seek for this location data. >> guest: sure. law enforcement is able to get all sorts of information from tracking someone's cell phone. and i think it would help to start by talking about how cell phone tracking works. if you have a smartphone, it may be that there's a gp schip embedded in your cell phone, and so your phone could be located with a great deal of precision. it actually doesn't matter if you have a smartphone or a dumb one. cell phones can be accessed regardless, and the reason is in order to work, cell phones have to communicate with the cell phone network. they communicate specifically with cell phone towers, you've probably seen them, that transmit the signal. and by knowing what tower a person's cell phone is communicating with, you get a pretty good picture of where they are. and so these technologies enable law enforcement agencies to track individuals in realtime,

so as you're walking around the city or wherever you happen to live, as you're driving. but they also enable law enforcement agencies to track people where they've been in the past. most of the cell phone companies in the united states store records about where you have been for at least a year, and law enforcement agencies can serve subpoenas or other forms of court process on the companies and gain access to those records. so in some cases law enforcement agencies are tracking people using these cell tower records, other times they're engaging in gps tracking. sometimes they're tracking one individual for a relatively short period of time, sometimes they're getting all of the cell phone location records for everyone who is hat a particular location. so there's really a wide range of practices. >> host: in some, in many of these cases where police organizations are taking advantage of new technology, their argument has often been that they're similar to, for

example, following somebody physically or taking a picture of them with a camera which in most cases do not require any kind of warrant or, you know, court sanction. how do these forms of tracking or this kind of information gathering differ from what law enforcement have been doing for years? >> guest: it differs substantially because tracking one person, say, by following them around is actually really resource-intensive. you need a lot of people in order to be able to do that. and being able to track people through their cell phones erases those sort of practical limits on the ability of law enforcement to track people which raises the possibility that tracking become much more common. and this distinction both with the ease of tracking and i think, also, the prolonged nature of tracking is one the law potentially recognizes. actually, just earlier this year in january, the supreme court decided a case called united states v. jones in which it held

that when the police attach a gps device to a car and obtain information from that device, that's a search under the fourth amendment, and the law enforcement agencies have to meet some constitutional standard in order to track people. the government had argued that it could track anyone at any time for any reason or no reason at all without any judge a approval, and the constitution simply had nothing to say about it, and the court rejected that argument. and i think that because cell phone tracking is often directly analogous to gps tracking of a car, the best argument is that it also triggers a fourth amendment protection against unreasonable searches and seizures. >> host: you mention in the study that the aclu released you also note kind of the role that carriers play in gathering this information and providing it to law enforcement. could you explain more what the role of carriers is in gathering and providing this information?

>> guest: absolutely. today most americans have a cell phone, and all of those cell phone companies store records on where americans have been in the past and, in addition, have the capacity to track people in realtime. and the carriers are the agencies that most law enforcement agencies go to in order to engage in tracking. they have these huge departments now where they just process court orders that they receive to engage in cell phone tracking. and so it's really ended up being a massive operation for them, responding to law enforcement requests for location information. um, you know, increasingly it appears that the carriers are actually building these online services so law enforcement can simply log into a web site and get its location request processed that way. and even though this has been

going on for a thurm of years -- a number of years, unfortunately, i don't think the carriers have done enough to help their customers understand the ways in which using a cell phone makes individuals vulnerable to invasion of their privacy. you can't go to their web site and learn how long your phone company keeps records of where you have been in the past. i think that's wrong. i think the cell phone companies owe their customers a more clear picture of how the government and potentially others are accessing their data, and i hope that the rising tide of public concern about this issue encourages them to take action. >> host: catherine crump, you mentioned "others." are cell phones being tracked by other groups rather than just law enforcement? >> guest: you know, i don't actually know the answer to that question. law enforcement has been our primary focus. um, it's clear that cell phone tracking is also being used by the national security agencies, but beyond that i'm not sure.

you know, there's one thing i actually meant to mention earlier that, if you don't mind, i might bring up now which is that the picture's actually not all bleak. while some law enforcement agencies, well, most law enforcement agencies i should say do track cell phones without getting a warrant based on probable cause, there's some agencies that do get a warrant, and i think that's heartening because it shows at least in the view of some agencies, it's possible to pursue the totally legitimate security needs that law enforcement agencies do have while protecting americans' privacy. and we hope that more agencies will adopt policies like that. >> host: what are some of the examples that you've found in your study? of tracking? >> guest: well, sure. um, so just to follow up on that previous point, lexington, kentucky, is an example of one city that gets a warrant to engage in cell phone tracking. wichita is another. you know, cities have much more

expansive uses of tracking. so, for instance, there's a town in north carolina that got a court order to track using precise gps tracking, not just the location of one cell phone, but of all of the cell phones that had called that cell phone. and, you know, in that case they actually did get court approval for that, although i don't think the court approval was appropriate because what that means is, you know, if person who was the target of the investigation called a pizza delivery company, the law enforcement ended up tracking that phone, you know, or the guy's mother's phone in addition to the subject of the investigation. so i think that's a particularly expansive use of cell phone tracking. the other example that came up frequently in the examples that we generated through the support that we hadn't known a lot about previously is the practice of tower dumps. this is the practice of identifying all cell phones that made contact with a particular cell phone tower. so, for instance, you could get it in 15 or 30 or, you know,

hour-long intervals depending on what the cell phone, what law enforcement agencies feel like paying the cell phone carrier for. and that means that a lot of innocent people are getting their location information handed over to the government because many, many, many people will often use a cell phone tower over the course of an hour. >> host: joining us by phone is dennis ken any. he is a professor -- kenney. he is professor of criminal justice at the john jay college of criminal justice. mr. kenney, you have been listening to this conversation. what are your initial thoughts? >> guest: first of all, what she describes is completely accurate. and from a law enforcement perspective, i think that a good deal of the capability she describe inside some ways can be very helpful. my immediate reaction, however, is that the focus on limiting just law enforcement, i think, would be misplaced because the notion that you can sell that information -- that the carriers can sell that information to law

enforcement agencies, they can sell it to private vendors as well. and i think right now that the usage of that data the is pretty unclear who can get it, who can use it and so forth. there's commercially-available apps now that you can get on your iphone that will enable you to track not just your phone, but other people's phones as well. >> host: and do you see, do you see where the aclu is coming from here when it, when it speaks about the danger of the privacy? >> guest: oh, certainly. um, as i said, my greater concern would be, what i would not want to see is a situation where the police are the only ones who can't have access to the data. it's commercially available, and, obviously, if it were, the police would be able to have it as well. but i think it's a bigger issue than just what your local police department's doing. in fact, i think their usage of the data may be the least threatening of the possibilities. >> host: josh smith of "the national journal" is also

joining us, mr. kenney. >> host: you mentioned that a lot of this technology can have a lot of, or law enforcement can use this for many good things, that's why they're taking advantage of it, because they feel like this advances their investigations. >> guest: uh-huh. >> host: how much of the rise in the use of this kind of information or technology is due to just the fact that there are more cell phones and more this kind of technology out there verse is us laws -- versus laws, potentially, you know, post-9/11 that may have encouraged or opened up this opportunity? >> guest: i think it's a combination of the phones being there and the technology to be able to take advantage of them. something like 50% of the phones now are smartphones which are particularly easy to track, but as your other guest pointed out, dumb phones can be tracked -- not as well, but also can be tracked. i mean, the advantages to the police, i mean, if you look back, you can come up with, i think, it was the son of sam that was found because they

poured through the records and found the parking ticket which, you know, identified somebody who was in the neighborhood, and eventually they were able to clear the case because of that. the tower dumps enable the police to do those sorts of things. taye got a crime, you don't have a suspect, it tells you pretty much everybody who was in the geographic area. now, obviously, there are privacy concerns, but that's particularly useful information. >> host: do you think that there is common ground that can be found between protecting individuals' privacy and their constitutional rights as well as allowing law enforcement to take full advantage of the latest technology? >> guest: oh, absolutely. i think it's, it should be a relatively easy process to set up a system where if police are able to demonstrate a legitimate need for the information, they should be able to get a court order relatively easily, and under controlled conditions be able to use the information.

the information, you know, they only hold it for short periods of time and those things. my greater concern is the laws are so far behind the technology now that, you know, private business and a variety of any, you know, number of other people -- to some extent today and in the future, i would imagine, readily be able to get their hands on the information. i suspect the carriers will make, in the end, the future more money selling the information about where you are than they get from you from your phone. >> host: now, professor kenney, recently in san francisco some cell phone towers were shut down by the police in anticipation of a demonstration. >> guest: uh-huh. >> host: what's your view on that? [laughter] >> guest: that's a real problematic ability for the police to be able to exert that sort of influence. i think it would be a very rare condition that -- and, again, i think you would require a court

order to be able to or should require a court order to be able to do something that extreme. >> host: but that wasn't the case in this case, in the san francisco case, was it? there was no court order. >> guest: to my knowledge, no. i'm not terribly familiar with it though. >> host: so do you foresee that type of behavior or action being taken by police departments all over the country at some point? you talk about a rare case, this was simply a gone straight that they weren't in support -- demonstration that they weren't in sport -- support of. >> guest: no, i don't. i can't imagine very many police requesting that sort of thing, and i would imagine the pushback as that becomes better known, you know, would be pretty extreme. so it's something i can't imagine the police requesting very often. that said, um, you know, now's the time for us to be thinking about what the rules for that sort of thing, you know, should be; what should be allowed and under what circumstances and so forth. >> host: and, dennis kenney,

finally from me do you, would you like to see federal regulations more clear in this area? i mean, a lot of state and local laws working right now, but what's your view? >> guest: well, i think federal regulations are required, um, and there's, you know, there's a good deal of regulation about the ability to block cell phone signals and so forth that, again, are relatively old regulations. the technology has advanced, you know, far beyond what the public policy debate has been, um, so i suspect that both combination of regulations and probably court decisions which as we've seen and she just mentioned the courts have already begun down this road. the problem is, of course, those sorts of policies develop very slowly and in today's climate i suspect that we'd have a great deal of difficulty getting a lot of agreement particularly on legislative agreements on what the authorities should be. >> host: and a final question from josh smith. >> host: going off of that

thought, what do you see as some of the challenges towards getting more of a standard framework for everybody that seems like it would provide more clarity to law enforcement as well as to individuals who are worried about their privacy? >> guest: um, what do i see as the bigger problem? >> host: right. what's standing in the way. >> guest: um, there's a lot of folks who can benefit from the information. it's not unlike cloud computing and other forms. we, you know, i think we're due for a complete rethinking of what constitutes privacy, um, and what levels of privacy we're, you know, we're prepared to give up in exchange for the conveniences that come with, you know, with the location services and so forth. the police are, obviously, you know, one group that uses it, but they're by no means the only and probably in the near future will be one of the lesser users of that information.

>> host: dennis kenney is a professor at the john jay college of criminal justice. highway this has -- he has moren 35 years of experience in criminal justice including serving as a florida police officer. he's the past editor of "the american journal of police" and the current editor of "police quarterly." mr. kenney, thank you for being on "the communicators." catherine crump, what did you hear from our conversation with dennis kenney? >> guest: well, based on that conversation, i think there actually is common ground between people who are concerned about civil liberties and law enforcement agents. the aclu, for example, is not opposed to cell phone tracking in any categorical sense. we think there are circumstances in can which there's a perfectly appropriate and, indeed, valuable tool. i think the real sticking point is what standard the government has to meet in order to engage in cell phone tracking. and our strong belief is that only by having to go to a neutral magistrate to have your

request to engage in cell phone tracking reviewed by someone who can look at it objectively and being held to the probable cause standard which requires you to show you have a good reason to believe that tracking the phone will turn up evidence of wrongdoing, only through those requirements will americans' legitimate privacy be met. the point is to make sure privacy rights aren't violated in the course of law enforcement investigations. you know -- sorry, go ahead. >> host: no, go ahead, please. >> guest: well, i was just going to add, you know, i do think there is a role for congress to play here. we haven't had a meaningful update of our electronic privacy laws since the '80s which was a long time ago now, especially when you think about the types of technological changes that have taken place. some members of congress have introduced legislation that i think could at least go some of the ways to resolving some of these questions to bring clarity both for americans that are concerned about their civil liberties, but also for law

enforcement agencies and courts who are struggling to interpret what are vague and confusing laws. >> host: dennis kenney also mentioned an app that you can get for your phone or i pad that would allow you to track other people's cell phones. what are your thoughts? >> guest: you know, i think the private uses of this data are, you know, extremely complicated and poorly understood. there are an increasing number of applications that people can subscribe to on their smartphones that will both allow companies to track you, but also allow you to track other people. um, you know, in some sense i am less concerned about private tracking because, um, because only the government has the power to lock people up and throw out the key because it has this unique power in society. so i think that makes government

surveillance often a greater threat than private sources of surveillance. but all of this is unchartered territory, i think we're just beginning to think through the ramifications of what it means to have where you are available to others at all times, and the technology is still evolving. >> host: josh smith. >> host: earlier in the program you mentioned some national security agencies at the national level looking into or using gps tracking like this, and when the aclu launched this effort and survey last year, it came right after a controversy over whether the nsa, for example, and other or organizats believed that they were authorized under the patriot act to use gps information to track americans. and i was wondering what have you found as far as the national level, the use of law enforcement or other government tracking? >> the truth is we found very

little concrete information about what is going on. it's difficult to obtain any facts about what our national security establishment is doing in terms of surveillance in general that extends to location tracking, and so we're sort of left to speculate based on, um, you know, what we know about currently-available technology to guess what the law enforcement agencies may be doing. and so, and so it's a little hard to say. um, you know, one question that people have raised, for example, julian sanchez at the cato institute has raised this repeatedly is to what degree the national security establishment may be tracking cell phones in a large-scale manner because, for example, if an individual disposes of their phone, you may not be able to track that one phone for a prolonged period of time, but unless they both move where they are at home and go to work and their entire pattern of their lives, you may be able to find another phone that is

engaging in the same pattern and extrapolate that that's actually the same person who has changed phones. the situation's very murky, and we're left extrapolating about exactly what has happened with, unfortunately, too little insight into how that's affecting the privacy of ordinary americans. >> host: you mentioned legislation and the aclu has come out in support of the so-called gps act which has been introduced or proposed in both the house and the senate. how would this help clear up the murkiness that you see in that situation? >> guest: the gps act would address location tracking and hold that the government needs a warrant to track. it's not the only legislation that would bring some clarity to the situation. in addition, senator leahy has sponsored reform to the electronic communications privacy act, that's this old statute we've been talking about that hasn't been updated for a long time. it would at least require a warrant for realtime cell phone

tracking, although we don't think it goes far enough because it would allow law enforcement to access historical information without a full warrant based on probable cause. you know, i would love the to the see some of that legislation pass. i think even law enforcement has an interest in seeing there be clarity to the law. but, you know, it's difficult these days for congress to devote attention to that kind of legislation. >> host: catherine crump, we asked dennis kenney about the san francisco cell phone tower shutdown case. is that something that the aclu is looking into? >> guest: it is something we looked into. i think we were really surprised to, um, you know, to hear that a city as progressive as san francisco, that law enforcement agencies there would shut down cell phone access. it was also surprising almost on a public relations front because this happened during the arab

spring when, um, the repressive regimes in the middle east were getting slammed left and right in the media for, you know, doing exactly that, trying to shut down communications networks in order to stymy democratic protests. you know, we haven't seen a repeat of that, and can the public reaction was so vehemently opposed to this that i'm hopeful that many law enforcement agencies will take heed and not go to such extreme measures. i think there were also a lot of legitimate public concerns about, you know, people use their cell phones for all sorts of things, to make 911 calls, for instance, and for the goth just to take down -- for the government just to take could be the whole network -- take down the whole network may do more to endanger people's safety. >> host: are there any court cases that you're monitoring or we should be aware of regarding technology and police surveillance and privacy?

>> guest: yes. the jones decision that came out in january which, again, dealt with gps tracking of cars was really momentous because it was one of the court's first attempts to grapple with what degree our privacy will be preserved in the face of evolving technology. there's an open question, however, about whether the rule of jones that the fourth amendment covers attaching a gps device to your car, there's an open question about whether that extends to cell phone tracking. i think, actually, whether cell phone tracking triggers fourth amendment constitutional protection is a much bigger deal because hundreds of millions of americans carry cell phones with them all the time. courts are really just beginning to grapple with that question. a federal court of appeals in texas is poised to consider the issue later this year, and i think that decision is especially worth watching because there's only one other appeals court decision to date that even really addresses the

appropriate legal standards for cell phone tracking. lower courts around the country are also dealing with cell phone tracking. there's also a remaining issue about gps tracking of cars after jones which i think is really important be. the court held that the fourth amendment protects people to some degree against having their cars tracked by law enforcement attaching a gps device to them, but it left open the question of whether the government needs a warrant based on probable cause to conduct those searches or whether it is sufficient, for example, for a law enforcement agent to think, to in his own evaluation to conclude that tracking a car was a reasonable law enforcement step. um, i think this question is hugely significant because i think it is far more protective of people's privacy rights for law enforcement agencies to have to go to a judge and justify their surveillance than to merely make that determination on hair own. and courts around the country including the court of