Yes, You're Being Tracked. It's Time to Do Something About It

By Christopher Calabrese
ACLU Washington Legislative Office

In light of the recent disclosures about iPhone and Android location tracking, Sen. Al Franken and the Senate Judiciary Committee are taking the very welcome step of shedding light on privacy and smart phones with a hearing tomorrow. The senators will undoubtedly quiz Apple and Android's parent company Google about their practices of storing a log of users' movements on their phones. (We have some questions about Apple's explanation as well.) We hope Sen. Franken will also press Apple and Google on whether and when the phones share that information with the companies. There is some indication that it's a common practice.

Tomorrow's hearing will be a very good thing – consumers should know what information smart phones and other devices are storing about them and consumers should be able to control that information. However we can't let the hearing obscure the fact that all mobile phones are portable tracking devices. These devices have to touch base with cell towers about every seven seconds in order to receive data and know if someone is trying to call, email, text, or otherwise communicate.

Apple's and Android's use of location data makes even clearer that companies are building on this basic reality. They are using triangulation (the strength of signals from multiple towers), signals from other mobile networks (like Wi-Fi hot spots), and GPS to make this location information even more precise.

Ok, so what now? We aren't giving up our cell phones; I think we all know that. So we're going to have to create protections for how that information can be accessed, and in turn, protect ourselves against unwarranted invasion of privacy. The ACLU believes one of the most important protections must be against government access. In fact, it's long overdue.

You see, because Congress has not set a clear standard for what level of evidence law enforcement must meet to get location information, the rules are fuzzy. You can read all the gory details here, but the short story is that the Department of Justice generally doesn't appeal cases that challenge the government's use of location information, especially if it looks like courts might set a higher standard, such as requiring a warrant to obtain this information. The government also attempts to blur the distinction between different types of location information by claiming it only wants less precise information. And because there is no clear standard from Congress, even when the Department of Justice recommends higher standards, Assistant U.S. Attorneys in the states who are handling the actual cases involving these issues don't have to follow them.

Equally troubling is given how long we've had cell phones, Congress has never said what the standard for access should be. That has to change. The ACLU is a partner in a coalition with other privacy groups, libertarian organizations and major companies (including Google!) who all agree that the appropriate standard for location information is a warrant issued by a court and backed by probable cause.

Congress has held numerous hearings in the last year on reform of the Electronic Communication Privacy Act (which would cover location privacy). We must let Congress know that it has to give us back our location privacy and require a warrant for law enforcement access.