Cellphones provide more information about us than ever before. Not only can the government track our whereabouts using GPS devices embedded in our cellphones, but the FBI now uses cellphones to eavesdrop even when our phones are turned off. To activate these so-called “roving bugs,” mobile providers remotely install software that turns on a cellphone’s microphone and transmits audio detected by it to a FBI listening port. Computer-surveillance expert James Atkinson explains that if “a phone has in fact been modified to act as a bug, the only way to counteract that is to either have a bugsweeper follow you around 24-7, which is not practical, or to peel the battery off the phone.” Security-concious corporate executives reportedly remove the batteries from their cell phones to avoid unwelcome audiences.
In a recent opinion, federal district court Judge Lewis Kaplan (S.D.N.Y.) upheld the FBI’s use of such a “roving bug” in a racketeering case. Judge Kaplan concluded that federal wiretapping law sanctioned the use of a cellphone bug to capture hundreds of hours of a suspect’s conversations because the FBI obtained a court order and because “alternative methods of investigation either had failed or were unlikely to produce results” given the subject’s deliberate avoidance of government surveillance. Serious discussion is warranted about the practical and constitutional significance of these cellphone spies.
Posted by Danielle Citron on January 17, 2007 at 02:38 PM
Comments
Police can use cell-site simulators to try to find a suspect when they already know their phone’s identifying information, so they can find anyone.
Posted by: Bruno Araujo | Apr 29, 2020 10:25:11 AM
Paul, interesting but I’m not sure it’s right. (I should preface this with an admission that I’m not a 4A guy.) If I go jogging w/ Danielle in the park and we’re not the subject of the warrant but we are planning some misconduct as we jog in the park, and we pass someone whose phone is tapped, don’t you think D and I have a reasonable expectation of privacy regarding our conversation as we pass the bugged phone, notwithstanding it being a “public place?” Otherwise, the cops can just put bugs on every lamppost, no? Come to think of it, maybe you are right. I would guess we could have a CCTV surveillance society like London w/o constitutional issue, so perhaps there’s no reason to think audio pickup is different than visual pickup. So let’s change the hypo a bit: D and I go to a large party in a private residence, where the suspect and his interlocutor are. Don’t D and I have a reasonable expectation of privacy in our phone conversation if we chat in a closed room adjacent to the bad guys standing outside the room in which we are talking, and now our conversation is picked up by the bug? Again, I’m not sure what the answers are, but I would think that if it turned on the reasonable expectation of privacy, the jogging in the park conversation and the closed room conversation at the party would qualify as 3d party interests worthy of consideration.
Posted by: Dan Markel | Jan 21, 2007 10:32:02 AM
I’m a little skeptical of the third-party claims. There are two possible relationships for third parties to be in vis a vis these phones. Either they’re talking to the phone owner (in which case the conversation is covered by the warrant for presumably probable cause, etc. anyway), or they’re not. And I think this is the really important point. Older kinds of surveilance take third parties into the net all the time: if you happen to be dating the mafia don’s daughter, your conversations are gonna be recorded by the FBI. That’s a normal incident of the phone tap, and I think it’s one that we accept — it’s an unavoidable incident of recording the calls that go to the don. Mutatis mutandis to house or office bugs, or, for that matter, stool pigeons following him around, and again to cellphone mics.
If they’re not talking to the suspect, either they’re in a public place or they’re not. If they’re in a public place, they have no or next-to-no expectation of privacy anyway — that seems pretty well established, and, anyway, an undercover cop could be hanging around listening in person with no constitutional claim. If they’re in a private place like someone’s home, I imagine that most of the time the reason they’re in the private place and the phone is in the private place is because they’re talking in a group that includes the suspect. In which case, yet again, that seems like a totally reasonable place for a normal tap/bug warrant to go.
So there’s a pretty rare case where we ought to be seriously concerned about third party rights. Maybe if the suspect leaves his phone in someone’s house and they talk merrily along with it sitting there or something.
Posted by: Paul Gowder | Jan 21, 2007 5:29:28 AM
I so appreciate Orin, Bruce, and Dan’s comments given that I only have just begun to delve into the area. As Dan suspected, I am interested in the zone of privacy afforded third parties vis-a-vis newly emerging surveillance technologies. Roving bugs catch all conversations/noises within a certain area of a suspect’s seemingly turned-off mobile phone, whether that zone encompasses a place of worship, home, or even a faculty meeting. I wondered whether the increasing use of such roving bugs might leave many so paranoid as to silence us in our daily affairs. It sounds like all of this could be tightly regulated through strict warrant laws and more protective state constitutional and regulatory schemes, but I wonder if potential constitutional issues remain as to third parties that are left unresolved. Much thanks to all.
Posted by: Danielle Citron | Jan 18, 2007 4:48:35 PM
Orin (and others), do you think the government should have to show, under 2518(3)(c), that normal forms of electronic surveillance are unlikely to succeed, or is it enough just to make the showing that normal forms of non-electronic surveillance are unlikely to succeed? I.e., is a normal wiretap or stationary bug a “normal investigative method” when the issue is roving bugs, or does a roving bug just become part of the electronic surveillance toolkit when non-electronic surveillance is ineffective? The lower threshold seems insufficiently protective of privacy, and the higher threshold seems at least a plausible reading of the text. This is statutory, not constitutional, but perhaps it would address Danielle’s concerns.
Posted by: Bruce Boyden | Jan 18, 2007 2:52:37 PM
Danielle,
No, I think it doesn’t. To be sure, we would want this to be tightly regulated with a very strong warrant requirement, such as that imposed by the Federal Wiretap Act. And in the case of state investigations, we might want this authority to be even more tightly requlated, such as by federal laws limiting state wiretaps, as well as state statutory and constitutional regulations that can exceed the already very restrictive federal standard. But unless I’m missing something, that’s already the law. So the question is, is the preexisting law that covers this sufficient? I tend to think it is. Danielle, do you disagree?
Posted by: Orin Kerr | Jan 18, 2007 1:39:25 PM
FYI the link above to the decision is broken. The decision is United States v. Tomero, 2006 U.S. Dist. LEXIS 85560 (S.D.N.Y. 2006), available here:
This development seems to collapse boundaries that previously existed for technological or practical reasons between bugs and wiretaps, and also further uproots such interceptions from a particular place. Cell phone taps have long been legal, but even then with the tapping occurring only when someone is on the phone, i.e., isolated conversations. It strikes me that bug that is attached to a person (for practical purposes) rather than a location is more intrusive than your average bug, and should get additional scrutiny.
But it looks from the opinion like Judge Kaplan may have taken that into consideration in finding that Section 2518(3)(c)’s exhaustion requirement was met, which SDNY caselaw allows if the government can “demonstrate only that normal investigative techniques would prove difficult. All that is required is ‘a reasoned explanation, grounded in the facts of the case, and which squares with common sense.'” In this case, Kaplan found that the government demonstrated not only why normal methods of investigation wouldn’t work, but also why normal methods of *electronic surveillance* wouldn’t work. E.g., “wiretaps on the Ardito and Peluso cellular telephones were not successful because the subjects ‘were extremely careful and guarded on the cellphone, [and] recognize[d] the potential for electronic interception.’ Further, the conversations intercepted at the four restaurants painted a limited picture of the subjects’ criminal activity because defendants were aware of the listening devices there and held meetings in other places, such as public streets, where the risk of surveillance was low.” But he didn’t expressly state that that is a required showing before getting one of these “roving bug” orders. That strikes me as a reasonable requirement, but we’ll see if it sticks.
The ongoing arms race here between investigators and racketeeers here is also interesting. The next logical step, I guess, will be to remove the cellphone battery before talking business. Maybe nanotechnology will be next?
Posted by: Bruce Boyden | Jan 18, 2007 12:05:20 PM
One might think that everyone buying a phone like this is now opting in to the field of surveillance, especially if the law enforcement use is constrained by warrants. But here’s the thing that eluded me earlier and that perhaps Danielle was getting at: if the phones are picking up ambient conversations aside from those who are targeted by the warrant, then those persons’ privacy interests are arguably being invaded by the gov’t. Orin, you may know this: is a 3d party’s privacy interest implicated if the government is trying to snoop only on the conversation between the owner of the phone with a wire-tap warrant?
Posted by: Dan Markel | Jan 18, 2007 10:26:08 AM
Dan and Orin, Even if the cellphone bugs provide significant advantages to law enforcement, might this new technology push the envelope too far in terms of the privacy society forfeits with their use?
Posted by: Danielle Citron | Jan 17, 2007 10:00:33 PM
I’m also curious as to what the constitutional issues might be. The technology is really interesting, but I tend to think that there aren’t any particularly new legal questions here.
Posted by: Orin Kerr | Jan 17, 2007 5:58:10 PM
Danielle, about six years ago I gave a presentation with Eric Saltzman about wireless tracking devices to the NAAG, and it seems to me that there are a lot of benefits that can accrue from “roving bugs” as well as some dangers (to privacy). I guess I’m wondering what constitutional issues do you think are raised by these cellphone bugs? That the FBI can ever tap into these phones (as opposed to our landlines)?
Posted by: Dan Markel | Jan 17, 2007 4:42:02 PM