TechMan: Big brother has access to devices that knows where you are
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Lots of devices know where you are these days -- cell phones, E-ZPass tolling devices, security cameras with face recognition, GPS units, card swipes for doors and social media sites such as Facebook.
And many of these keep a record of where you've been.
The access that authorities have to this information comprises a new field called location privacy. The laws of location privacy are being written right now as the number devices that know your whereabouts explodes.
In cases so far, the government has been approaching requests to see your location records under the assumption that no search warrant is required. The Constitutional protection afforded by a warrant requires the highest level of proof from authorities.
But stored communications, such as copies of emails kept by your Internet service provider or email provider, can be accessed under the Stored Communications Act without Constitutional protection and with less stringent proof than needed for a warrant.
A number of federal magistrates have disagreed with the government's less stringent approach, arguing that such access is protected under the Constitution and requires a warrant.
One of those was Judge Lisa Lenihan, of the U.S. District Court for the Western District of Pennsylvania in Pittsburgh.
In 2008, authorities asked Judge Lenihan for permission to look at cell phone location records related to a suspected drug trafficker they were having trouble tracking.
The request was made under the less lenient proof standards of the Stored Communications Act, requiring only that the information be shown to be relevant to a criminal investigation.
Judge Lenihan denied the request, arguing that the Stored Communications Act did not apply and that authorities would have to satisfy the Fourth Amendment to the Constitution requiring proof of "reasonable suspicion of criminal activity" as is required for a warrant.
Several other federal magistrates made similar rulings and the government appealed the matter to the Third U.S. Circuit Court of Appeals.
In a partial victory for privacy advocates, that court ruled in September that federal magistrates may require a warrant for location information at their discretion, but it stopped short of ruling that such information always falls under Constitutional protection and always requires a warrant.
Also, the ruling only applies within the purview of the Third Circuit -- Pennsylvania, New Jersey and Delaware.
So until Congress or the U.S. Supreme Court step in, we must assume that authorities will continue to seek location information using the less stringent proof. And judges can either grant or deny such requests at their discretion.
The Electronic Frontier Foundation, a nonprofit group that backs digital users' rights and has participated in location privacy suits, believes there is another solution.
The foundation points out that there have always been ways to find out someone's location -- hire a guy in a trench coat to follow him, for example. But that is expensive. And the individual might spot the person tailing him.
Electronic location information is cheap and fast to obtain, and can be accessed without the subject's knowledge.
The foundation acknowledges that the easiest and cheapest way to build location-aware technology is to include zero privacy. But with a little additional engineering using modern cryptographic methods, privacy could be improved.
For example, electronic cash could make toll collection anonymous.
Location-based search could have the searcher's identity encoded as well as the information returned from the location.
It is likely government and law enforcement would oppose encrypting location information just as they have opposed encrypting emails and other communications.
Another approach would be for location-based services not to keep records of their customers locations. But companies want these records to sell advertising and settle disputes.
And the government could alter the law at any time to require record retention. This already has been done in Europe.
For now, it is traveler be aware. Know that your location now and in the past is being recorded and those records can be accessed with varying degrees of proof.
Visit www.eff.org for the latest legal developments in electronic privacy laws.
First Published March 20, 2011 12:00 am