(CNN) -- Do
you know how long your cell phone company keeps records of whom you text, who
calls you or what places you have traveled? Do you know how often cell phone
companies turn over this information to the police and whether they first ask
the police to get a warrant based on probable cause?
No, you don't. Not unless you work for a cell phone
company or a law enforcement agency with a specialty in electronic
surveillance. You aren't alone: Congress and the courts have no idea either.
The little we do know is worrisome. The companies
are not legally required to turn over your information simply because a police
officer is curious about you. Yet wireless carriers sell this information to
police all the time.
As far as the cell phone companies are concerned,
the less Americans know about it the better.
Whom you text and call and where you go (tracked by
your cell phone as long as it's on) can reveal a great deal about you. Your
calling patterns can show which friends matter to you the most, and your travel
patterns can reveal what political and religious meetings you attend and what
doctors you visit. Over time, this data accumulates into a dossier portraying
details of your life so intimate that you may not have thought of them
yourself. In comparison with companies such as Facebook and Google, which
collect, store and use our information in one way or another, cell phone
companies are less transparent.
U.S. Rep. Edward Markey, co-chairman of the
Congressional Bipartisan Privacy Caucus, recently requested that cell phone companies disclose basic statistics
on how our personal data is shared with the government. Let's hope the
companies are forthcoming -- but don't hold your breath.
To be sure, there can be legitimate reasons for law
enforcement agents to track individuals' movements. For example, when officers
can demonstrate to a judge that they have a good reason to believe that
tracking will turn up evidence of a crime. But with a surveillance technique
this powerful, the public has a strong interest in understanding how it is used
to ensure that it is not abused. While the details of individual investigations
can legitimately be kept secret, the public and our elected representatives
have a right to know the policies in general so their wisdom can be debated.
Cell phone companies have long concealed these
facts, and they're fighting vigorously to keep it that way. In California, the
cell phone industry recently opposed a bill that would have required companies to tell
their customers how often and under what circumstances they turn over location
information to the police, complaining that it would be "unduly
burdensome."
What little has come to light so far about the
companies' practices does not paint a comforting picture. Addressing a
surveillance industry conference in 2009, Sprint's electronic surveillance
manager revealed that the company had received so many requests for
location data that it set up a website where the police could conveniently
access the information from the comfort of their desks. In just a 13-month
period, he said, the company had provided law enforcement with 8 million
individual location data points. Other than Sprint, we do not have even this
type of basic information about the frequency of requests for any of the other
cell phone companies.
The poorly understood relationship between cell
phone companies and police raises grave privacy concerns. Like the companies,
law enforcement agencies have a strong incentive to keep what is actually
happening a secret, lest the public find out and demand new legal protections.
More than 10 years ago, the Justice Department convinced the House of
Representatives to abandon legislation that would have required law enforcement
agencies to compile similar statistics, arguing that it would turn "crime
fighters into bookkeepers."
The excessive secrecy has frustrated the ability of
the American people to have an informed debate on just how much information
police should have access to without judicial oversight or having to show
probable cause. It has also prevented Congress and the courts from effectively
addressing these intrusive surveillance powers. That is not how our system of
government is supposed to work.
It would not be difficult for the carriers to tell
customers how their data is collected, stored and shared. In fact, an internal
Justice Department document from 2010, dislodged through a public records
request by the American Civil Liberties Union, showed the data retention
policies of all major carriers on a single piece of paper. The phone companies
have all created detailed handbooks for law enforcement agents describing their
policies and prices charged for surveillance assistance, a few dated versions
of which have seeped out onto the Internet.
If the cell phone companies can provide this
information to law enforcement agencies, they can and should provide basic
information about their sharing of data with law enforcement to their
customers, too. While law enforcement sometimes argues that making members of
the public aware that cell phone companies can track them will make it more
difficult to catch criminals, it is too late in the day for that argument now
that cell phone tracking is a staple of television police procedurals.
Why aren't these policies available on the
companies' websites? With such information, consumers could vote with their
wallets and punish those companies that don't protect privacy. Keeping their
customers in the dark about surveillance is better for business, it seems.
We pay the cell phone companies to provide us with
a service, not keep tabs on us for the government. And yet the companies that
now have access to some of our most private information refuse to reveal even
the most basic facts about their policies? We deserve better.