if this the communicators mac look at how police are using cell phones and other technology to search for criminal law activity and whether the current law covers cell phone tracking. the american civil liberties union issued a report on the subject after studying the record of hundreds of police departments.

>> over the past year or so there's been a series of police actions regarding sulfone trucking, sitting down sulfone towers, the use of drones, domestically etc., and there's been a series of news articles about these topics. and that is our topic this week on the communicators. technology, the use of technology and police surveillance. joining from the new york studio is catherine crump, staff attorney with the american civil liberties union and also the guest reporter this week josh smith of the national journal. ms. crump if we could serve with a recent report the aclu put out on the use cell phone tracking the police department's was this report about? >> with the aclu has to leave for some time that police departments around the country are trekking people's cell phone on a routine basis often without getting a warrant based on

probable cause. that's what we thought we were not actually sure to read so in august 35 affiliate's in 32 states around the country finally a total of just over 380 public records of different law enforcement agencies asking for information about their policies, procedures and practices for tracking cyclones, and the report we put out earlier this month documented the findings from that study. >> and what did you find? >> we found that virtually all law enforcement agencies who responded to our request engaged in sulfone tracking it is in fact now a completely routine surveillance tool that is common in the agency will arsenals and moreover week, but law enforcement agencies to track the location without getting a warrant based on probable cause and that is a concern to the aclu because where you go can

reveal a great deal about you, we don't think it is the type of information law enforcement should be gathering without getting a warrant on trouble calls. >> are their police departments doing this based on some federal or state legislation or are they doing it through a lack of legislation? >> there is legislation that governs electronic privacy but unfortunately, it is often quite out of date. the federal electronic communications privacy act hasn't been updated since 1986. the was before the world wide web was invented in a long time before most of us have salles phones. unfortunately under the law can also one of the constitution, it's not exactly clear when the government needs a warrant in order to track someone using his cell phone, and when that actually violate a person's right and i think because of this blade until all the law enforcement agencies are frequently tracking people without getting a warrant.

we believe the argument is they should get a warrant, but the law is far from clear >> john smith of the national journal. >> hi, catherine. i was wondering if you could explain what kind of enforcement gathering when they ask corsi for this location data to read this to mix corporate law enforcement is able to get all sorts of the permission from tracking someone's cellphone and i think it would help to start by talking about how cellphone tracking works. if you have a smart fun it might be that there is a gps chip embedded so the phone can actually be located with a great deal of precision. it doesn't matter if you have a smart phone or dom triet cell phones can be accessed regardless, and the reason is because in order to work, cell phones have to communicate with a cellphone network. the connecticut specifically with towers. you've probably seen them. that transmits a signal, and by knowing what town where a

person's cellphone is communicating with, you get a pretty good picture of where they are to read and to these technology will allow them to track individuals in real time so as you are walking around the city or wherever you happen to live as you are 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 stored records about where you have been for at least a year and law enforcement agencies can serve subpoenas or other forms of process on the companies and gain access to those records. so in some cases law for some agencies are tracking people using these records and other times engaging in gps trucking. sometimes they are tracking one individual for a relatively short period of time and sometimes they are getting all of the cell phone location records of everyone that is at a particular location, so there is a wide range of practices.

>> some cases some police organizations are taking place about the technology the argument has often been that there are similar to following somebody physically or taking a picture of them with a camera, which in most cases do not require any kind of a warrant or court sanction. how do these forms of tracking or this type of information gathering differ from what the law enforcement has been doing for years? >> it differs substantially because tracking one person, say by following the murder and is actually really a resource intensive. you need a lot of people in order to be able to do that. and being able to track people for their sulfone erases those sort of practical limits on the ability of law enforcement to track people which raises the possibility that tracking would become much more common. and this distinction both with the ease of trucking and also the prolonged nature is one that

the law potentially recognizes and gets earlier this year in january the supreme court decided a case called united states versus jones in which it held that when the police attacked a gps device to a car and obtain information from that device that is a search under the fourth amendment, and the law enforcement agencies have to meet some constitutional standard in order to track people. the government argued that it could attract anyone at any time for any reason for no reason at all without any the judge 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. >> you mentioned in the study that the aclu released you also note the role that the carriers play in gathering this information and providing it to

the law enforcement, could you explain more what the role of the carrier's is and gathering and providing this information? >> absolutely. today most americans have assault on an all of the cell phone companies store records on where americans have been in the past and in addition have the capacity to attract people in real time. and the carriers who 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 have received to engage in cellphone tracking. and as a, it's really in that being a massive operation for them responding to law enforcement requests for the location information. increasingly it appears that the carriers are actually building these on-line services to law

enforcement could simply look into the web site and get its location request processed that way. and even if this has been going on for a number of years, unfortunately i don't think that the carriers have done enough to help their customers understand the ways in which using a cellphone makes individuals more vulnerable to tracking and other revisions of their privacy. you can't go to their web site for a simple and learn how long your phone company keeps records of where you've been in the past. i think that's wrong and the cell phone companies owe their customers a clearer picture of how the government and potentially others are accessing the data. and i hope that the rising tide of the concern about this issue encourages them to take action. >> catherine crump, you mentioned others. parcel phones being tracked by other groups rather than just law enforcement? >> i don't actually know the answer to that question.

law enforcement has been our primary focus. it's clear talking about the national security agency's, but beyond that, i'm not sure. one thing i forgot to mention earlier i might bring up now, the picture isn't all bleak. some law enforcement agencies, most law enforcement agencies i should say deutsch tracks all phones without getting a warrant based on probable cause. there are some agencies that do get a warrant, and i think that is partly because it shows that in the view of some agencies it is possible to pursue that totally legitimate security needs that will in for some agencies do have legal prohibiting americans privacy. and we hope that more agencies will adopt policies like that. >> what are some of the examples that you found in your study? of tracking. >> sure. just to follow-up lexington kentucky is an example of one

that gets a warrant to engage in self on trucking. wichita is another used with a tracking so there is a town in north carolina that got a court order to track using precise gps tracking, not just the location of 19 cellphone, but all of the cell phones that had called that cell phone, and in that case the actually did get court approval for that although we don't think the court approval was appropriate because what that means is that, you know, if the person who was a target of the investigation could a pizza delivery company and the law enforcement in that tracking that phone or the mother's phone in addition to the subject of the investigation i think that is a particularly extensive use of cellphone tracking and the other example the can up recently the regenerated for the support that we have and for what previously is the practice

of power dumps to read this is the process of all you could get it in 15 or 30 depending on what the cellphone law enforcement agencies like paying the assault on carrier and that means all of innocent people are getting their information handed over to the government because many, many people often use a solvent hubbard over the course of an hour. >> joining by phone is dennis, the professor of criminal justice at the john jay college of criminal justice. you've been listening to this conversation. what are your initial thoughts? >> first of all what she described is completely accurate from law enforcement perspective i think that a good deal of the capability she described in some we 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, the carriers consultant to law enforcement agencies and private vendors as well in right now the usage of the data is pretty unclear who can get it and use it and so forth, first commercially available applications you can get on your iphone that will enable you to track not just your phone the other people as well. >> do you see where the aclu is coming from when it speaks about the danger to privacy? >> certainly. my greater concern would be what i wouldn't want to see is a situation where the police or the only ones who can't have access to the data that is commercially available and if it were commercially available the police would be a butcher have it as well but i think it is a bigger issue than just what you're local police department is doing and in fact think that

their usage of the data may be the least threatening of the possibilities. >> joshua smith is also joining us. dorworth the >> you mentioned that a lot of this technology could have a lot of orval enforcement can use this for many good things that's what they are taking a stand of it because the delegates an infant to their investigation. how much to the rising of the use of this information our technology is due to the effect that there are more self phones and this kind of technology of their verses ball, post-9/11 that may encourage or open up this opportunity? >> it is a combination of the phone being there and the technology to to get at each of them come something like 60% of the phones are smart phones which are easy to track but as the other guest pointed out, dom phones can be tracked moscow as

well, but truth be advantages to the police if you look back you can come up with the son of sam of was found because the port for records and found a parking ticket which, you know, identified some of the dollar is in the neighborhood even do eventually able to clear the case. the power dumps enable the police to do this sort of things that got a crime you don't have a suspect it tells you pretty much everybody who was in the geographic area there are privacy concerns from the efficiency standpoint of an investigation that is useful information. >> do you think there's a common ground that can be found between protecting individuals and their constitutional rights as well as to take full of vintage of the latest technology? >> absolutely. it should be a relatively easy process to set up a system where if the police are able to demonstrate a legitimate need for the legislation can get a

court order and relatively easy get a court order and under the control conditions be able to use the information they only told that for a short time and my greater concern is laws are so far behind the technology now the the private business and a variety of any number of people with to some extent today and in the future i would imagine who readily on the information. i suspect the carriers will make in the future more money selling the information about where you are a family get from your phone. >> professor, recently in san francisco some sulfone towers were shot down by the police in anticipation of a war demonstration. what is your view on that? >> i think a problematic devotee for the police to be able to use

that sort of influence. i think it would be a very rare condition that again i think it would require a court order to be able to or should require a court order to be able to do something that extreme. >> that was in the case in san francisco case. there was no court order. >> to my knowledge, you know, i'm not terribly familiar with it though. >> do you foresee that type of or action being taken by police departments all over the country? you talk about a rare case. this is simply a demonstration that they were not in support of? >> no, i don't. first i can mention very many police requesting that sort of thing and it would imagine that the pushback as that becomes better known the pushback would be pretty extreme. it's something that i can't imagine the police request and very often. that said, now is the time for

us to be thinking about what the rules for that sort of thing should be, what should be allowed and under what circumstances and so forth. >> and dennis, finally from me, do you -- would you like to see federal regulations more clear in this area? there's a lot of state campbell will work law working right now but what is your view? >> federal regulations are required, and 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 far beyond what the public policy debate has been so both the regulations and probably court decisions as we have seen and she mentioned the courts have already begun the promise those policies developed slowly in today's climate a suspect we

would agree to deal of difficulty getting a lot of agreements particular legislative agreements, the authority should be. >> a final question from joshua smith. >> with d.c. as the challenges to words getting more of a standard framework for everybody that we seems like it would provide more clarity to law enforcement as well as to individuals that are worried about their privacy? >> what we see as a bigger problem? >> right, but standing in the way? >> there's a lot of folks that can benefit from the information. it's not unlike called computing and other forms. we are due for a complete rethinking of what constitutes privacy and what levels of privacy we are prepared to give up in exchange for the conveniences that come with what the location services and so forth. the police are obviously one group that uses it but they are

by no means the only in the near future will be one of the lesser users of that information. >> dennis is a professor of john jay college of criminal justice. he has more than 35 years of experience in criminal justice including serving as a florida police officer of devotees the past editor of the american journal of police come and the current editor of police quarterly. thank you for being on the communicators catherine crump, what did you hear from our conversation with dennis? >> well, based on a 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 sell from tracking in any categorical cents. we think that there are circumstances enriched it is a perfectly appropriate and indeed valuable tool. i think the sticking point is what standard the government has

to meet and our strong belief is that only by having to go to a neutral magistrate to have your request to engage in tracking reviewed by someone who can look at it objectively and be held to the standard to show you the good reasons that tracking the phone will turn up evidence of wrongdoing only for those requirements are americans legitimate privacy interest met. it's important to remember here that the point of those is to make sure that innocent americans privacy rights are not violated in the course of law enforcement investigations. go ahead. >> no, go ahead, please. >> i was going to add i do think there's a role for congress to play. we haven't had a meaningful update of the privacy law since the 80's which was a long time ago. now especially when you think about the type of technological changes that have taken place some members of congress have interviewed the legislation that i think could at least go some

of the way to resolving some of the questions to bring clarity both for americans who are concerned about their civil liberties but also law enforcement agencies in the courts to our struggling to interpret the confusing and outdated law to respect catherine crump, dennis also mentioned an application and you can get on your phone or ipad that would allow you to track other people's cell phones. what are your thoughts on that? >> i think the private use of the data are completed and misunderstood. there are applications people can subscribe to on their smart front of a lull companies to track que but also allow you to track other people. in some senses i'm less concerned about profit tracking because only the government has the power to block people

appeared to throw the key because it has a unique power in society so that makes government surveillance of in a greater than the private sources of surveillance faugh but all of a country that territory we are just beginning to think through the ramifications of what it means of where you are available to others at all times, and the technology is still evolving. >> josh smith. islamic earlier in the program, you mentioned the national security agency's at the national level looking into what for using gps tracking like this and when they launched this effort and surveyed last year it came right after a controversy will be whether the nsa and other roe organizations believe to that they were all the rest under the patriot act to use gps information to track americans. and i miss wondering what have you found as far as the national

level the use of law enforcement or other government trucking? was denied the truth is we found very little concrete information about what is golan. it's difficult for what our national security establishment is doing in terms of who surveillance in general that extends to the location tracking. so to speculate based on what what we know about the currently available technology to get with the law enforcement agencies may be doing. so it is a little hard to say. one question people have raised flexible julian sanchez at the cato institute has raised repeatedly is to what degree the national establishment may be tracking cell phones and a large scale manner because for example if an individual dispose of their economy not be able to track that phone for a long

period of time but if they move where they are at home and go to work and the entire pattern of their life you may be able to find another phone engaging in the same pattern and extrapolate that is the same person who has changed phones. so the situation is murky and we are left extrapolating about what has happened with unfortunately fell little insight into how that's affecting the privacy of ordinary americans. >> the original legislation and they've come out in support of the gps fact that's been introduced or proposed in the house and the senate. how would this not to clear of the murky and the you see in the situation? >> the gps location tracking the government needs a warrant to track location. it's not the only piece of legislation that's been introduced but would bring some clarity to the situation, in addition, senator leahy cents

reform to the electronic amine occasions privacy act the old statute we've been talking about that hasn't been updated for a long time but at least require a warrant for real-time although it doesn't go far enough because it will allow law enforcement to access historical location information without a full war and based on probable cause. i would love to see some of that legislation passed and i think even the law enforcement has an interesting thing with clarity of the law. but it's difficult these days for congress to divert attention to that type of legislation. >> catherine crump, we asked about the san francisco cellphone tower shut down case. is that something that the aclu is looking into? >> it is something that we've looked into. we were really surprised to hear that a city is progressing as san francisco law enforcement

agencies would shut down cell phone access and also on the public relations front because this happened during the arab spring for the oppressive regimes were getting slammed left and right in the media for doing exactly that, trying to shut down communications network for the protest. you know, we haven't seen a repeat of that coming into the public reaction was so vehemently opposed to this i'm hopeful at 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 people use their cell phone for all sorts of things to make 911 calls for instance and for the government to just take down the whole network i think a lot of people felt made do more to endanger people's safety than to

help them. >> are there any cases that you are monitoring or that we should be aware of regarding technology and police surveillance and privacy? >> the decision that came out in january which again dealt with the gps tracking of cars was really momentous because the was the court's first attempt to grapple with what degree the privacy will be preserved and in the space of evolving technology there is a question of the rule that the fourth amendment covers attaching to the core there's an open question about whether that extends to sulfone tracking. i think actually whether the cell phone tracking the triggers for the amendment constitutional protection is a much bigger deal because hundreds of millions of americans carry cell phones with them all the time. a federal court of appeals in texas is in place there is only

one other appeals court decision to date that really addresses the appropriate standard for self and tracking. lower courts are in the country are also dealing with the cell phone tracking and also there is the remaining issue about the gps tracking of cars which i think is important. the court held the fourth amendment protects people to some degree against having their cars tracked by law enforcement at catching a gps device to them that it left open the question of whether the government needs were based on probable cause to conduct the search is or whether it is sufficient for example for the law enforcement agent to in his own evaluation to conclude that tracking the car was a reasonable law enforcement that i think his question is a hugely significant because it is far more protective of people's privacy rights for the agencies toav