FBI Is on Your Cell Phone. Do You Care?

By Nat Hentoff, Reader Supported News

21 September 11

ohn Adams lost the 1800 presidential election to Thomas Jefferson in large part because Adams, in 1798, pushed through Congress the Alien and Sedition Acts that punished any of the new Americans who stirred up "sedition within the United States" by speech or actions that brought the president or Congress into "contempt or disrepute."

The First Amendment had been ratified only seven years before!

The American people, no longer threatened by the tyrannical British king and insistently proud of their guaranteed personal liberties, voted for Jefferson, who had strongly opposed the Alien and Sedition Acts (my book, "First Freedom: The Tumultuous History of Free Speech in America," Delacorte Press, 1980).

Here we are in 2011, with our federal, state and local governments having the technological ability to track and store in massive databases what we say on the phone, in emails, on Facebook, on Twitter and the myriad other digital means in which we communicate. The Obama administration has the power to punish an American for providing "material support" to our terrorist enemies.

Moreover, as I and others have reported, the Department of Justice's Nationwide Suspicious Activity Reporting (SAR) Initiative, or NSI, enlists We the People to spy on possible seditious Americans among us and report them to the FBI and local and state police.

We are ordered to do this in obedience to the "If You See Something, Say Something" campaign. It's up to you to define "suspicious." This is what our America has become.

Jefferson's ghost might want to start another revolution.

Will this gutting of the First and Fourth Amendments injure President Obama's prospects for a second term? I'm not aware of any signs of even small-scale angry protests from citizens that will add to his already formidable obstacles to remaining in the White House.

But maybe what follows could begin to awaken some of us to the continual eroding of our privacy – without the government telling us what it regards as "suspicious" about us.

After Congress rushed through the USA PATRIOT Act's extensive raid on our constitutional rights, the American Civil Liberties Union has been litigating and otherwise acting to restore what George W. Bush and Congress stole of our basic identity as Americans, and not only from privacy seizures by the federal government.

For instance, there has been scarcely any media attention to this Aug. 11 release by the minutemen and minutewomen of the ACLU:

"In a massive coordinated information-seeking campaign, 34 ACLU affiliates are filing over 375 requests in 31 states across the country with local law enforcement agencies large and small that seek to uncover when, why and how they are using cell phone location data to track Americans.... The requests, being filed under the states' freedom of information laws, are an effort to strip away the secrecy that has surrounded law enforcement use of cell phone tracking capabilities."

If there's any doubt about Americans' widespread use of cell phones, look around on any street. Also, says Catherine Crump, staff attorney for the ACLU Speech, Privacy and Technology Project: "A detailed history of someone's movements is extremely personal and is the kind of information the Constitution protects" – and that's why "the ability to access cell phone location data is an incredibly powerful tool and its use is shrouded in secrecy" by the Obama administration.

As I provide a few examples of what the ACLU is demanding, see how the answer (if this government ever answers) affects you: "The use of cell phone location records to identify 'communities of interest (detailing those persons who have called or been called by a target)' in investigations."

Watch where you're going. You could be brought into an FBI or local police probe. This spring "police in Michigan sought information about every cell phone near the site of a planned labor protest." What if the FBI is refocusing on all cells in an area of protesters, including by American Muslims, whose Bill of Rights signs are bringing an administration into disrepute and contempt, and you were just wandering by?

Getting back to those ACLU affiliates with demanding constitutional questions of local law enforcement agencies: Do these agents "demonstrate probable cause and obtain a warrant to access cell phone location?" Or do they keep avoiding getting permission from judges?

Why a warrant? Doesn't the ACLU know there's a war on?

More demanding rule-of-law requirements of government tracking of us are coming. Sen. Ron Wyden, D-Ore., and Rep. Jason Chaffetz, R-Utah, have introduced the truly patriotic Geolocation Privacy and Surveillance Act, supported by the ACLU, that "requires the government to show probable cause and get a warrant before acquiring the geolocational information of a US person."

This would apply, among other forms of such tracking, to cell phones. It would also require telecommunications companies (including providers of cell phones) to get our consent to collect data from locations where we use them. Where do we go with cell phones in our ears? These companies, without telling us, already convey this location information to the FBI without our knowing we're being tracked as we talk.

And there also is this mass graveyard of privacy: Facebook. Wikileaks founder Julian Assange said: "Here we have the world's most comprehensive database about people, their relationships, their names, their addresses, their locations, their communications with each other, and their relatives, all sitting within the United States, all accessible to US Intelligence." Facebook is not being run by the state, but the state keeps its eye on Facebook. Years ago, George Orwell's "1984" had a large reading audience. Where are they now?

Judge Learned Hand warned us: "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it."

Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights and author of many books, including "The War on the Bill of Rights and the Gathering Resistance."