Friday, October 28, 2005

FBI Slapdown

The FBI has once again shown that it is perfectly willing to cross Constitutional lines when it comes to domestic spying. In this case, it involves the use of cellular phones as tracking devices.

The FBI may not track the locations of cell phone users without showing evidence that a crime occurred or is in progress, two federal judges ruled, saying that to do so would violate long-established privacy protections.

In separate rulings over the past two weeks, judges in Texas and New York denied FBI requests for court orders that would have forced wireless carriers to continuously reveal the location of a suspect's cell phone as part of an ongoing investigation. Other judges have allowed the practice in other jurisdictions, but the recent rulings could change that.

The rulings come as controversy mounts over the federal government's ability to conduct domestic surveillance. Privacy advocates continue to criticize the Patriot Act, enacted after the Sept. 11, 2001, terrorist attacks. That law broadened the powers of law enforcement to monitor citizens under suspicion of terrorist activity.

In the New York and Texas cases, the courts approved FBI requests for other information from the wireless carriers, including logs of numbers a cell phone user called and received calls from.

Court orders for that information require law enforcement agencies to show only that the information is relevant to an ongoing investigation.

But the FBI also sought cell-site locations, which the courts said amounted to the ability to monitor someone's movements. The judges ruled that such information requires law enforcement to show "probable cause" that a crime has been or is being committed.

That requirement, which also is required for a search warrant, is a long-standing legal mandate designed to protect against overzealous or improper investigations, both judges said.
[Emphasis added]

The FBI was certainly pushing the envelope on these cases, even if it did claim to be operating under the color of the Patriot Act. If the FBI or any other federal agency operating in the US believes a crime is about to be committed, judges are available continuously to review the evidence already gathered which would satisfy the 'probable cause' requirement. Yes, it's an extra step, but one that has long been recognized as important to the privacy and the freedom of even those under investigation. It's spelled out nicely in that pre-September 11 document, the US Constitution.

Kevin Bankston, staff counsel of the Electronic Frontier Foundation, a privacy advocacy group that filed court briefs opposing the government's position, said the framers of the Constitution recognized that sometimes, investigations might be slowed to preserve broader privacy rights.

He also said that the government's arguments make him wonder what other tactics the FBI is employing that might exceed legal authority.

Mr. Bankston expresses a concern that we all should have, especially in light of revelations that the FBI has rather frequently been unlawfully strolling through the Constitutional barriers to excessive police tactics.


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