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Gazeta Wyborcza, Poland

In the US, Big Brother Is Already Watching.
The FBI Reads Your E-mails and Knows
Where You Are

By Mariusz Zawadzki

Translated By Aleksandra J. Chlon

4 December 2012

Edited by Lau­ren Gerken

Poland - Gazeta Wyborcza - Original Article (Polish)

Complete surveillance, about which Orwell wrote, has already become a fact in America. Big Brother – the FBI – reads your e-mails, knows where you are, and knows the numbers you call or text.

In order to enter somebody’s house, look in their drawers in their bedroom and read the letters hidden there, the FBI still needs a traditional search warrant. They also need a warrant to pick up a cell phone sitting on the table in the kitchen and look at the screen – as determined by a recent court case in Rhode Island.

A mother from Rhode Island called 911, saying that her six-year-old son was lying unconscious in bed. Not only did an ambulance showed up, but so did the police. The boy was taken to hospital, and a police officer heard a phone go off in the kitchen, picked it up and read the text message from the woman’s boyfriend: “Wat if I got 2 take him 2 da hospital wat do I say and dos marks on his neck omg.”

The boy died. The boyfriend was arrested and accused of beating the child to death. But the judge discarded the evidence, claiming that the police officer had no right to look at the cell phone without a search warrant. The case is still in progress – the prosecutor has appealed to the state's Supreme Court.

In this case, the phone belonged to the woman. But what if the police arrest a suspect who has a cell phone in his pocket? Can it be searched without a search warrant? A court in Ohio said no. Even though the police have the right to, for instance, look at a piece of paper found in the suspect’s pocket.

The court justified this by stating that a cell phone may contain large amounts of private data. The Supreme Court in California, however, decided that the police may search a cell phone as much as they like, on the condition that the suspect has it on him at the moment of his arrest.

These examples concern situations in which a police officer physically touches a cell phone. But what if he can obtain the information contained within it remotely, without touching? Then, as it turns out, much more is allowed.

Following the information revolution, U.S. law enforcement agencies were given unprecedented, nearly unlimited possibilities – mainly due to the fact that the law was somewhat lagging behind. Privacy in the electronic world is regulated by an outdated law which was adopted by Congress in 1986. It allows the police, for example, to read people’s e-mails without a search warrant if they have been sitting in the person’s inbox for over half a year. This is how the FBI recently discovered CIA director David Petraeus’ affair, which ended in his resignation.

Cell phones contain an even greater wealth of information. Ohio State University Law Professor Peter Swire told New York Times journalists that the 1986 statute “didn’t take into account what the modern cell phone has — your location, the content of communications that are easily readable, including Facebook posts, chats, texts and all that stuff.”

For example, if the FBI or the police asks the cell phone operator for information about its client, then without any problems – or search warrants! – it receives a list of numbers that the client has called or sent messages to and can watch his every move. The phone, even if it is just lying in a pocket, connects to the nearest antenna operator, and on that basis the location of the phone’s owner, accurate to a few hundred meters, may be determined.

Of course, operators do not store information about their clients’ location continuously – usually, the system only stores the phone’s coordinates at the beginning and end of every conversation. This is usually enough for the police to, for example, refute the alibi of a murderer who claimed to be somewhere else at the time of the crime, but was imprudent enough to call someone right before or right after the crime.

It is also possible to trace someone continuously and in real time – the police must simply ask the operator to systematically send a so-called “ping” to the client’s cell phone. The police do not need a search warrant for this kind of surveillance. It is sufficient to ensure that it will be important in an investigation.

When the police ask, cell phone operators agree. In 2011, they completed 1.3 million “spy” orders from law enforcement agencies (Congressman Ed Markey asked the FBI this question and that is the response he received). Of course, nothing is free.

For instance, AT&T admitted to journalists from the internet portal Slate that they received 181,000 FBI and police requests to reveal client information and completed 99 percent of them, for which they received $8.2 million. Other operators refuse to reveal such details. Verizon admits, that every year it makes between $3 and $5 million on this procedure. Sprint admits that they had half a million such requests but do not reveal how much money they made in return. T-Mobile refused to comment altogether.

Spying on cell phones is so convenient that U.S. police are less likely to try to get permission to tap conversations – only for that, one needs permission from the court. In 2010, they received only 3 thousand such permits, 15 percent less than the year before.

Law enforcement agencies assure that people who respect the law do not have to fear being spied on through their cell phones. Carrying a cell phone should not mean losing one’s right to privacy, says the American Civil Liberties Union.

There is a complete mess within court jurisdiction. Last year, a court in Pittsburgh, Pennsylvania decided that a search warrant is necessary to acquire historical geographical data of an owner’s cell phone. “If Americans knew to what extent their cell phones record the history of their lives, they would be in deep shock,” the judge wrote.*

But in New Jersey, for example, police acquire “geographical” data routinely and without warrants. In Washington, a court ruled that a list of numbers that a suspect has called or sent messages to is not protected by the right to privacy, because acquiring it is similar to looking over someone’s shoulder and seeing the numbers.

*Editor’s note: This quotation, accurately translated, could not be verified.



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