EFF in the News
"This is a critical question for privacy in the 21st century," says Kevin Bankston, an attorney at the Electronic Frontier Foundation who will be arguing on Friday. "If the courts do side with the government, that means that everywhere we go, in the real world and online, will be an open book to the government unprotected by the Fourth Amendment."
If you own a cell phone, you should care about the outcome of a case scheduled to be argued in federal appeals court in Philadelphia tomorrow. It could well decide whether the government can use your cell phone to track you - even if it hasn't shown probable cause to believe it will turn up evidence of a crime.
The American Civil Liberties Union, the Electronic Frontier Foundation and the Center for Democracy and Technology will ask the court to require that the government at least show probable cause before it can track your whereabouts.
The Justice Department is poised this week to publicly defend a little-known law-enforcement practice that critics say may be the "sleeper" privacy issue of the 21st century: the collection of cell-phone "tracking" records that identify the physical locations where the phones have been.
It may come as a surprise to most of the owners of the country's 277 million cell phones, but their cell-phone company retains records of where their device has been at all times—either because the phones have tiny GPS devices embedded inside or because each phone call is routed through towers that can be used to pinpoint the phones' location to within areas as small as a few hundred feet.
"Most people don't understand they are carrying a tracking device in their pockets," says Kevin Bankston, a lawyer with the Electronic Frontier Foundation, a privacy group that has been trying to monitor the Justice Department's practice.
The memo was made public as part of a lawsuit filed by the Electronic Frontier Foundation, which was seeking reports from an intelligence oversight panel. After The New York Times reported on its contents in December, a lawyer representing anti-abortion activists who attended the rally asked Middleton police to release a copy of the assessment under Wisconsin's open records law.
“You’d think it was nuclear weapons kind of stuff, not intellectual property law,” said Eddan Katz, international affairs director at the Electronic Frontier Foundation, which campaigns against regulation of the Internet. “The fact that there are 30 or 50 people sitting around a table deciding the laws of the world’s nations, when there are major areas of disagreement, seems like a wholesale contravention of the democratic process.”
Now, in an appeal of Lenihan's ruling, the 3rd Circuit will become the first federal appellate court to tackle the question as Justice Department lawyers square off against a coalition of privacy and civil liberties lawyers from the Electronic Frontier Foundation, the Center for Democracy & Technology and the American Civil Liberties Union...
Bankston, in a brief jointly filed by the Electronic Frontier Foundation, the ACLU and the Center for Democracy & Technology, urges the 3rd Circuit to uphold Lenihan's ruling on the grounds that Congress intended to give judges the discretion to deny such requests and require prosecutors to meet the ordinary standard for a search warrant.
Cell phone users, Bankston argues, have an expectation of privacy in such data because they "simply do not voluntarily expose their location whenever they make calls and receive calls ... nor do they do so merely by turning on their cell phones."
With its Patent Busting Project, EFF is targeting patents that it claims are invalid and hurt ordinary people by threatening innovation. In this case, the patent affects a technology that has made voice calls more affordable and that depends partly on independent inventors for new advances, said EFF Legal Director Cindy Cohn.
"VoIP is one of these kinds of technologies that really frees people," Cohn said. EFF is worried that fear of lawsuits by C2 could inhibit developers from making new VoIP products available. Meanwhile, its patent is one that never should have been granted, Cohn said.
"This was actually a complete surprise to me," said EFF staff technologist Seth Schoen.
Schoen said copiers represent a major privacy loophole.
"Potentially all of that information is available to anyone who by chance buys the machine or wants to go looking for it. So that sounds like a pretty large scale problem to me," he said.
Hofmann is a lawyer with the Electronic Frontier Foundation, a public interest group focused on privacy issues. The Foundation sued the CIA, Justice and Defense Departments after reading reports that the CIA is monitoring social-media sites like Twitter. Hofmann says her group wants to find out if there are any rules in place. She says social networking is like a new frontier.
"It sounds very dangerous," says Lee Tien, an attorney with the Electronic Frontier Foundation, referring to the police-only Web interface. "Let's assume you set this sort of thing up. What does that mean in terms of what the law enforcement officer be able to do? Would they be able to fish through transactional information for anyone? I don't understand how you create a system like this without it."