ACLU Learns Few Details in First Agency Response on D.C. Police Phone Tracking

August 03, 2011

As part of a massive coordinated nationwide information-seeking campaign, on August 3 the American Civil Liberties Union of the Nation’s Capital sent a request for records to the Washington Metropolitan Police Department, a request like those from 33 other ACLU affiliates across the nation that filed a total of 379 requests.  

The requests, to MPD and hundreds of local law enforcement agencies large and small, demand to know when, why and how police are using cell phone location data to track Americans. The campaign is one of the largest coordinated information act requests in American history. The requests, being filed here under the D.C. Freedom of Information Act and under similar laws in each state, are an effort to strip away the secrecy that has surrounded law enforcement use of cell phone tracking capabilities.

 “Your cell phone company knows where your phone is, but that doesn't mean the MPD gets to know any time it wants," said D.C. ACLU staff attorney Fritz Mulhauser who filed the request for the ACLU.    

“The ability to access cell phone location data is an incredibly powerful tool and law enforcement shrouds its use in secrecy. The public has a right to know how and under what circumstances their location information is being accessed by the government,” added Catherine Crump, staff attorney for the ACLU Speech, Privacy and Technology Project in New York.  “A detailed history of someone's movements is extremely personal and is the kind of information the Constitution protects.”

The request to MPD and other law enforcement agencies asks for information including:

  • whether law enforcement agents demonstrate probable cause and obtain a warrant to access cell phone location data;
  • statistics on how frequently law enforcement agencies obtain cell phone location data;
  • how much money law enforcement agencies spend tracking cell phones; and
  • other policies and procedures for acquiring location data and what other agencies may share the data.

The ACLU request to the MPD is available here.  Full information on the requests nationwide is also available.

UPDATE: In its September 16, 2011, response, the MPD released only one (irrelevant) document and gave a variety of reasons it had no more. The department, for example, claims the number of requests to cell phone companies is unknown as no statistics are kept; that the agency has no directives governing such requests or showing the legal standards the department believes it's governed by in secretly getting cell location data; that some parts of the process of getting cell phone locations, such as paying carriers to do the work and storing the resulting records, involve the FBI hence MPD itself has no records; and that any records of MPD requests for court approval of requests for cell locations are sealed. 

Staff attorney Fritz Mulhauser, who submitted the initial request commented, "The police department at least doesn't deny it's doing what so many law enforcement agencies are doing in tracking people using their cell phones.  But it's regrettable that the MPD hasn't come forward with a shred of information about the practice. The ACLU continues to believe people should know details of how police may be tracking every inch of their movement, especially with the news that  federal agencies are involved."  The ACLU appealed the police department refusal to release records and won orders from the Mayor for only a few further disclosures (which have not been received).

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Law enforcement’s use of cell phone location data has been widespread for years, although it has become increasingly controversial recently. Just last week, the general counsel of the National Security Agency suggested to members of Congress that the NSA might have the authority to collect the location information of American citizens inside the U.S. Also, this spring, researchers revealed that iPhones were collecting and storing location information in unknown files on the phone. Police in Michigan sought information about every cell phone near the site of a planned labor protest.

The U.S. Supreme Court has agreed to decide whether police need a warrant to place a GPS tracking device on a person's vehicle. While that case does not involve cell phones, it could influence the rules police have to follow for cell phone tracking. The case is United States v. Antoine Jones, No. 10-1259 (to be argued November 8, 2011).  At an earlier stage of the case, the ACLU of the Nation's Capital joined others in submitting an amicus brief to the U.S. Court of Appeals for the D.C. Circuit aguing the position the court eventually took in its opinion, that warrantless 24/7 GPS tracking of a vehicle can be an unlawful search. Other courts of appeals had seen no problem with such tracking--leading to the High Court decision to hear the matter.

Congress is considering the Geolocation Privacy and Surveillance Act, a bill supported by the ACLU that would require police to get a warrant to obtain personal location information. The bill would protect both historical and real-time location data, and would also require customers' consent for telecommunications companies to collect location data.

Today’s requests are part of the ACLU’s Demand Your dotRights Campaign, the organization’s campaign to make sure that as technology advances, privacy rights are not left behind. Learn more about dotRights here.