"When the American Republic was founded, the framers established a libertarian equilibrium among the competing values of privacy, disclosure, and surveillance. This balance was based on the technological realities of eighteenth-century life. Since torture and inquisition were the only known means of penetrating the mind, all such measures by government were forbidden by law. Physical entry and eavesdropping were the only means of penetrating private homes and meeting rooms' the framers therefore made eavesdropping by private persons a crime and allowed government to enter private premises only for reasonable searches, under strict warrant controls.”
– Alan F. Westin, Privacy and Freedom (Atheneum, 1968, p. 67)
The 18th century framers of the United States of America had no ability to predict what our modern age would be like. We've made technological leaps throughout the centuries that make it necessary for us to reinterpret the intention and spirit of our privacy laws. Privacy was particularly important to our forefathers but, as illustrated in Westin's quote, they could not have imagined how difficult the trade-off between security and privacy would become as our world transformed. The concrete walls that used to guard our personal privacy have dissolved and modern life now revolves around intangible forms of communications such as telephones and emails.
Today's government has responded to today's new security and challenges with high-tech surveillance and identify profiling. Although often discredited as paranoia or fiction, the latest issues regarding cellular phone tracking have brought new public awareness to how much attention the government really is paying to our everyday lives.
Called the “sleeper privacy issues of the 21st century” by Michael Isikoff of Newsweek, the recent facts that have come to light regarding the FBI's proclivity for cell phone tracking are enough to make anyone feel a little uncomfortable.
You, I, and 277 million other cell phone users are carrying around government tracking devices in our pockets. Our cell phones make our location known to the government, either through an embedded GPS or by triangulating locations via cellphone towers. This tactic of surveillance without knowledge or consent is called “invisible information gathering” and raises some ethical issues. If someone is unaware that information is being collected on them, they have no opportunity to give or withhold their consent or withhold..
Common sense tells us that even if the government has the ability to pinpoint our location down to a few hundred feet, they're most likely not paying attention - or, at least not paying attention in real time. Things get a little bit creepier when we learn that there are two forms of cell phone tracking: retrospective, where the government is given access to the historical data kept by mobile phone providers that's typically not very detailed, and prospectivetracking, which reveals the minute-to-minute location of a handset or device.
The Obama administration argues that no search warrant is necessary, and cite that all they need is a 2703(d) order, showing that the records are “relevant and material to an ongoing criminal investigation.” Meeting the evidence requirements for a 2703(d) is easier than those required for a search warrant, and therefore less privacy protective.
(Beyond simply tracking our whereabouts, the FBI is also able to use cell phones as “roving bugs” - that is, they have the ability to remotely activate cell phones mics in order to eavesdrop in on nearby conversations. The only way to deactivate this is by removing the phone's battery. This type of monitoring is it's own can of worms, detailed and protected within the controversial Patriot Act.)
Even before the Patriot Act was put into place in 2001, our government historically had a problem respecting laws regarding the 4th Amendment in regards to telecommunications. The first wiretap was conducted in 1890s in New York and ever since that, our government has been grappling with the ethics of privacy vs. security of the US citizen. Originally, Congress and the Supreme Court favored protecting the privacy of the individual citizen, but today's increased focus on security threats has led our law makers to condone increasingly more invasive government practices. For additional information on the government's shift in wiretapping policies, please see the Good Electron's Wiretapping Timeline.
If the tracking information was always gathered for legitimate purposes by following the proper legal procedures, there would be less concern by human rights and privacy groups. But cellphone tracking isn't only used to against criminals. This type of tracking is often used on politicians, spouses, civil rights groups and people with unconventional viewpoints. This doesn't sound like the America our founding fathers intended.
So where does this leave us? It's hard to speculate. Technology keeps changing, as do the laws. FBI and other law enforcement agencies will continue to rationalize surveillance options that comprise individual rights in the never ending battle of security vs. privacy. As part of the general public we all need to be aware of what's going. That's all we're saying. Otherwise, we might eventually find ourselves in an excessively “secure” country with a frightening lack of privacy.