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How the government can get your digital data

By Theodoric Meyer and Peter Maass
Special to the NNPA from ProPublica

Listening to your phone calls without a judge’s warrant is illegal if you’re a U.S. citizen. But police don’t need a warrant — which requires showing “probable cause” of a crime — to get just the numbers for incoming and outgoing calls from phone carriers. Instead, police can get courts to sign off on a subpoena, which only requires that the data they’re after is relevant to an investigation — a lesser standard of evidence.

The FBI can also request a secret court order for phone records related to an international terrorism or spying investigation without showing probable cause. One such order obtained by the Guardian newspaper shows the FBI requested all phone records over a three-month period last year from Verizon Business Network Services. Director of National Intelligence James R. Clapper said in a statement such orders are renewed by the court every 90 days. The phone records being collected are for what’s called “metadata” — time, duration, numbers called — but not the content of calls, which President Obama, in defending the surveillance, said would require a judge’s consent.

Police can get phone records without a warrant thanks to a 1979 Supreme Court ruling, Smith v. Maryland, which found the Constitution’s Fourth Amendment protection against unreasonable search and seizure doesn’t apply to a list of phone numbers.

In a statement, Clapper’s office said the government can’t query the metadata it has collected unless there is a “reasonable suspicion” it is associated with a specific foreign terror group. That happened fewer than 300 times in 2012, the statement said, adding that the data is destroyed after five years. Judge Richard J. Leon of the Federal District Court for the District of Columbia ruled last month that the NSA’s bulk collection of phone records likely violates the Constitution. But a second federal judge, William H. Pauley III, ruled the collection was legal less than two weeks later.

Many cell phone carriers provide authorities with a phone’s location. Cell towers track where your phone is at any moment; so can the GPS features in some smartphones. In response to a recent inquiry by Sen. Edward J. Markey (D-Mass.), Sprint reported it provided location data to law enforcement 67,000 times in 2012 and AT&T reported receiving 77,800 such requests.

Many courts have ruled police don’t need a warrant from a judge to get cell phone location data. They only have to show, under the federal Electronic Communications Privacy Act, the data contains “specific and articulable facts” related to an investigation — again, a lesser standard than probable cause. Last year, Maine became the second state, after Montana, to require police to obtain a warrant for location data.

A warrant is needed for access to some emails, but not for the IP addresses of computers. According to the American Civil Liberties Union, those records are kept for at least a year. The NSA also runs a program called Marina designed to sweep up Internet metadata, according to The Washington Post. Whether or not that includes IP addresses is unclear.

Clapper has said the program does not target U.S. citizens or anyone in the country. The Post reported in October that the agency has tapped the private fiber-optic cables that connect Google and Yahoo data centers overseas to collect email metadata en masse, as well as other files. In a single 30-day period, the NSA processed 181,280,466 new records, including email metadata.

Investigators need only a subpoena, not a warrant, to get text messages more than 180 days old from a cell provider — the same standard as emails. Additionally, authorities typically need only a subpoena to get data from Google Drive, Dropbox, SkyDrive and other services that allow users to store data on their servers, or “in the cloud.” The agency has also tapped the fiber-optic cables linking Google and Yahoo data centers overseas.

Courts haven’t yet  issued a definitive ruling on social media. In 2012, a Manhattan Criminal Court judge upheld a prosecutor’s subpoena for information from Twitter about an Occupy Wall Street protester arrested on the Brooklyn Bridge. It was the first time a judge had allowed prosecutors to use a subpoena to get information from Twitter rather than forcing them to get a warrant.

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