The general counsel of the National Security Agency testified to a Senate hearing yesterday that he believes the agency has the authority to track Americans via cell phones.
“There are certain circumstances where that authority may exist,” said Matthew Olsen the current nominee to head up the National Counterterrorism Center.
Olsen made the comments to the Senate Select Committee on Intelligence as Sen. Ron Wyden (D., Ore.) repeatedly asked if the government has the authority to “use cell site data to track the location of Americans inside the country.”
Olsen added that the reason his answer was not definitive was that “it is a very complicated question”, assuring the committee that the NSA would provide more information in a future memo.
Sen. Wyden recently wrote (full letter below) to the Director of National Intelligence demanding to know whether the CIA and the NSA “have the authority to collect the geolocation information of American citizens for intelligence purposes.”
“If yes, please explain the specific statutory basis for this authority,” the letter, co signed by Sen. Mark Udall (D., Colo.) states.
The Senators also requested information on how many Americans have been monitored under authority granted by 2008 legislation amending the Foreign Intelligence Surveillance Act. “Have any apparently law-abiding Americans had their communications collected by the government?” the letter asks.
Two months ago Wyden expressed concern that the law relating to surveillance is unclear. “The law is being secretly interpreted by the executive branch” Wyden noted.
Along with Congressman Jason Chaffetz (R., Utah), Wyden has introduced a joint bill that would force any government agency to secure a search warrant and show probable cause before tracking the location of any American.
The issue of cell phone tracking blew up earlier this year when it was revealed that computer researchers discovered a hidden file that allows Apple to track the location of iPhone and iPad users. Google’s collection of location from cellphones has also been open to question.
As we have previously highlighted, however, since October 2001, the FCC has mandated that all wireless carriers track the location of their users down to within 50 feet.
Under the 1996 Telecommunications Act, the FCC mandated that by October 1, 2001 a quarter of all new cellphones be equipped with GPS functionality that would allow authorities to track the location of users. By the end of 2002, this became a mandatory requirement of allnew cellphones.
As Geek.com reported back in October 2001, “Because cellphone calls to 911 (estimated at around 140,000 per year) do not give the 911 operator location information, the FCC mandated that wireless companies “be able to locate 67 percent of callers to 911 within 50 meters that elect the handset solution while those using network technology must be able to locate the caller within 100 meters.” Wireless companies must also have one-quarter of the new cellphones they offer equipped to provide that location information by the end of the year, and all new cellphones so equipped by the end of next year.”
As a PC World article written in August 2001, two months before the first phase of the new FCC rules were enacted, asked, “The FCC requires cell phone companies to track you, in order to find you when you call 911–but what about your privacy?”
“Cell phone tracking was propelled by the Federal Communications Commission, which adopted enhanced 911 rules to cover wireless services. For E911′s first phase, cellular carriers must be able to pinpoint, to the nearest cell tower, the location of someone calling 911. For Phase II, carriers must be able to pinpoint a 911 caller’s location to within 50 to 300 meters,” states the article.
Your cellphone has been tracking you in real time for the lion’s share of the last decade, so why has it taken the media nearly 10 years to notice? Because in 2001, when such measures could have been made illegal, there was no iPhone, there was no app store, and the smart phones being used were extremely crude compared to today’s models, which are no less than mini-laptops.
In 2001, cellphones did little else than make calls and send text messages – these services didn’t require GPS technology. People weren’t addicted to their cellphones like they are today, they didn’t use them to catalogue, record and process every aspect of their existence.
The likes of Apple have worked hard over the last decade to make hundreds of millions of people dependent on their gadgets, creating an army of addicts who couldn’t care less that their cellphone is transmitting their every move directly to Steve Jobs. In their eyes, the choice between sacrificing their privacy and sacrificing their precious “apps” is an easy one to make. Privacy can’t book a table at a restaurant in a few taps of a finger, nor can it tell you the weather forecast or where the nearest ATM is located.
If the debate had been allowed to run its course in 2001, when cellphone tracking was first being adopted, the outcome may have been different. But since cellphone companies have been tracking their users for the best part of a decade, in line with government mandates, the recent controversy is merely part of the acclimatization process to achieve calm subservience and acceptance of the fact that true privacy is dead, and as Henry Blodget explains, Apple’s omnipresent brainwashing campaign has helped keep the outrage to a minimum.
July 14, 2011
The Honorable James R. Clapper, Jr. Director of National Intelligence Washington, DC 20511
Dear Director Clapper:
In the coming months Congress is likely to consider various legislative initiatives that would modify different aspects of domestic surveillance law. We believe that the debate over these initiatives will be better informed if Congress and the public are provided with more unclassified information about how these initiatives will affect current intelligence authorities and activities.
The FISA Amendments Act of 2008 significantly modified the US government’s surveillance authorities with regard to individuals believed to be located outside the United States. These new authorities are currently scheduled to expire in late 2012, and Congress could begin considering possible extensions or revisions to these authorities later this year. Since any thorough consideration will require an understanding of how the FISA Amendments Act has been interpreted and implemented, we ask that you provide unclassified answers to the following questions:
• In a December 2007 Statement of Administration Policy on the FISA Amendments Act, the Office of Management and Budget said that it would “likely be impossible” to count the number of people located in the United States whose communications were reviewed by the government pursuant to the FISA Amendments Act. Is this still the case? If so, is it possible to estimate this number with any accuracy?
• Official documents released in 2010 noted that there have been multiple incidents in which intelligence agency personnel have failed to comply with the FISA Amendments Act, and that “Certain types of compliance incidents continue[d] to occur.” Please elaborate on these compliance incidents to the extent possible, and explain why you believe that they have continued to recur.
• Have any apparently law-abiding Americans had their communications collected by the government pursuant to the FISA Amendments Act?
• Are any significant interpretations of the FISA Amendments Act currently classified?
Turning to another area of surveillance law, recent advances in geolocation technology have made it increasingly easy to secretly track the movements and whereabouts of individual Americans on an ongoing, 24/7 basis. Law enforcement agencies have relied on a variety of different methods to conduct this sort of electronic surveillance, including the acquisition of cell phone mobility data from communications companies as well as the use of tracking devices covertly installed by the law enforcement agencies themselves.
Unfortunately, the law has not kept up with these advances in technology. As a result, courts in different jurisdictions have issued diverse, conflicting rulings about the evidence and procedures required for the government to surreptitiously track an individual’s movements using a mobile electronic device. Congress is now considering multiple legislative proposals that would attempt to establish clear rules for this sort of surveillance and will need to determine at some point whether it is necessary to update the laws that apply to intelligence investigations as well as the laws that apply to law enforcement investigations.
While there is a substantial amount of public information available regarding different interpretations of this area of the law (including the executive branch’s interpretation and the interpretations of various courts) all of these interpretations apply to law enforcement authorities, not intelligence authorities. Clearly Congress needs to also understand how intelligence authorities are being interpreted as it begins to consider legislation on this issue. For this reason, we request that you also provide unclassified answers to the following questions:
• Do government agencies have the authority to collect the geolocation information of American citizens for intelligence purposes?
• If yes, please explain the specific statutory basis for this authority. And to the extent that this statutory basis imposes any procedural requirements, such as judicial review or approval by particular officials, please describe these requirements.
• If no, please explain the statutory basis for this prohibition.
Thank you for your attention to this matter. We look forward to your prompt response.
Ron Wyden Mark Udall United States Senator United States Senator