State stonewalls ACLU on use of cell-phone technology
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By Peter Hirschfeld Vermont Press Bureau - Published: March 16, 2010
MONTPELIER – The Office of the Vermont Attorney General has blocked efforts to find out whether law-enforcement officials are using cell-phone technology to pinpoint the whereabouts of private citizens, according to a lawsuit filed Monday by the Vermont chapter of the American Civil Liberties Union.
The interaction between cell phones and the towers that carry their signals gives service providers the ability to identify, to within 100 meters, the location of the phone. Emerging evidence, according to Allen Gilbert, executive director of the Vermont-ACLU, suggests law-enforcement entities nationwide are now using that information as an investigative tool. Gilbert said his organization wanted to find out whether police in Vermont are using it as well.
"A person's ability to move about in society is a core freedom that is threatened when government begins to act like Big Brother," Gilbert said Monday. "Tracking our every step is now possible, and it's chilling to think that government might be doing that."
But efforts to determine whether Vermont residents are subject to such scrutiny by law enforcement, Gilbert said, has been stymied by the Office of the Attorney General. The ACLU last month submitted a public-records request asking the Attorney General to "produce documents showing whether and how it uses cell phones to track individual Vermonters."
Not only did the office not produce the documents, Gilbert said, it refused to say whether such documents exist. In a complaint filed Monday in Vermont Superior Court in Washington County, the Vermont-ACLU challenges the Attorney General's claim that such information is exempted from the state's public-records statute.
"The rule is they have to at least tell you if they have such information," Gilbert said, citing his interpretation of the state's public-records law. "And it's frightening to think that government asserts it doesn't have to tell citizens whether it has certain information about them or other citizens."
Assistant Attorney General Cindy McGuire said Monday that the records requested by the Vermont-ACLU are exempt from the state's public-records legislation as "records that deal with investigations and the prosecution of criminal activity."
While McGuire said Monday that cell-tracking technology certainly gives law enforcement a new way to locate people of interest, she would not say whether her office has sought permission from courts to obtain that information from phone companies.
The technology might be new, she said, but courts will apply the same statutory standards as always to determine whether such activity is constitutional.
"Whether or not technology is utilized or traditional investigative methods, every citizen has constitutional protections that must be honored by police doing investigations," she said. "Technology doesn't change citizens' right to be free from illegal search and seizure or take away their right to privacy, but it is a developing area of law."
Gilbert contends that his organization, and Vermonters generally, have the right to know whether such activity is happening in Vermont. The Attorney General's office, at the very least, he said, needs to indicate whether records relating to cell-signal tracking exist.
"If you know there are records, even if they are not open to public inspection, it's going to make you act differently about how you use a cell phone," Gilbert said. "Which is too bad, but it might be the new reality we're in because of cell-phone tracking capabilities."
Knowing whether the technology is being used, he said, also allows organizations like his to make sure it's done with constitutional rigor.
"… It has become clear that some law enforcement agencies, including those of the federal government, have been routinely obtaining cell phone location data upon a showing of less than probable cause," the Vermont-ACLU writes in its civil complaint. "Prosecutorial agencies have attempted to justify the use of cell phone tracking absent a showing of probable cause on the basis that anyone who uses a cell phone voluntarily waives any rights of privacy, because she or he 'assumes the risk that the cell phone provider will create its own internal record of which of its towers handles the call.
"The ACLU of Vermont believes that members of the public would be very surprised to learn that their elected officials view any use of a cell phone as a waiver of their rights under the Vermont and United States Constitutions."
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