Map of ACLU Affiliates that filed FOI requests (photo: ACLU )

The ACLU has launched a massive effort with more than thirty of its state affiliates to uncover just how law enforcement agencies, large and small, are using cell phone location data to track Americans. The national organization and its affiliates submitted 379 requests through state Freedom of Information (FOI) laws and hope to unearth documentary evidence to show just how law enforcement is using new technology to invade Americans’ privacy.

“We want to get a better handle on the scope of location tracking in this country, how often it happens, where it’s happening, whether or not the government gets a warrant based on probable cause,” says Catherine Crump, a staff attoreney for the ACLU’s Speech, Privacy and Technology Project. She believes this effort will demonstrate law enforcement is using technology tracking more and more often for cases.

Through the FOI requests, the ACLU seeks to uncover information on: “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 and how much money law enforcement agencies spend tracking cell phones and other policies and procedures used for acquiring location data.”

The ACLU takes a clear stance on location tracking, according to Crump. They “think location tracking is deeply invasive of people’s privacy rights and the government should only be allowed to do it when they have a warrant based on probable cause.” But, it is clear “that’s not what’s happening. We think that violates the Constitution.”

“The American public should know the extent to which people are getting tracked without getting a warrant,” Crump declares.

She notes how much location tracking has been in the news recently. Not a week goes buy, she says, that we don’t read about a new development related to location tracking. For example, the Supreme Court is “poised to address the issue of whether or not the Fourth Amendment requires the government to attach GPS devices.”

Lately, there have been reports that Sen. Ron Wyden (D-OR) knows the NSA is seriously compromising Americans’ privacy through location tracking. Matt Olsen, who has been with the NSA but will likely become head of the National Counterterrorism Center, mentioned during his confirmation hearing if the NSA was using cell phone data to track Americans. Olsen said there are “circumstances where that authority may exist.”

Sen. Wyden and Sen. Mark Udall (D-CO) would both like to publicize what the NSA is doing and have asked the Director of National Intelligence James Clapper about the location tracking of Americans.

The “troubling government practice,” according to Crump, is becoming more widely used because the old model of law enforcement, where one person is tracked, is becoming increasingly obsolete. Police models are evolving and becoming quite novel in the kind of surveillance used. Police now can figure out the name of a suspect and track that individual and then when that suspect calls individuals they can track all of those individuals’ phones.

Sound familiar? That’s basically a main thread of the last half of Season 3 of HBO’s “The Wire.” The “major crimes unit” in the show spends time and resources mapping out the drug ring of Stringer Bell and when someone calls another they pick up a phone number and use that phone number to get closer to people hire up in the ring of drug dealers.

It is much different now though. That season aired in 2004 and the show ran from 2002-2008. Seven years later, Apple iPhones and Google Android phones now have the capacity to send GPS location coordinates along with the coordinates of nearby WiFi networks. Apple and Google both faced scrutiny from Sens. Al Franken (D-MN) and Rep. Edward Markey (D-MA) May, after The Guardian published a story on the revelation that vast databases were being built by the two companies thanks to “smartphone tracking” built into the phones.

Crump reports that anecdotally the ACLU has heard “industry has marketed to law enforcement” technology that could be used to establish a perimeter so when anyone crosses a line the law enforcement agency would be notified a cell phone has entered the area.

The law, which governs privacy, hasn’t been updated since 1986. The Electronic Communications Privacy Act was not written by creative science fiction writers, who imagined one day people would be carrying phones that law enforcement could use to track individuals. The ACLU hopes their project will move Congress to finally update the law.

The project also has the potential to be an education campaign.

How many Americans are aware of the “digital trails” they now leave? How many know what data or records they are leaving behind, which the government can use to violate their privacy?  More importantly, how many no longer believe they have a right to privacy?

Arguments by law enforcement authorities, proponents of the ever-expanding national security state and those profiting from new technology that has built-in tracking, are increasingly winning cases on the argument that, if you do not have a reasonable expectation of privacy, you may not have a right to privacy. This effort could teach Americans they do have privacy rights. The information uncovered could be part of an even more significant initiative to educate Americans on what to do to protect privacy so in cases, when asked if they can say they were working to keep certain data and information about their selves private.