Big Brother Lives in Your Pocket 1

Brett Hansen
CST 300
October 11, 2015
Big Brother Lives in Your Pocket

The cellular phone has gone from an unwieldy plaything of the wealthy to the versatile

tool of the masses. It goes with us everywhere, connecting us to our world, helping us explore it,

navigate it and even manage it. However, this power comes with an insidious dark side. For most

people, these quiet companions are within arms reach at all times; in a sense our entire lives

flow through our phones and over the networks of our cellular service providers. Everything that

passes through a cell network is documented and retained by the provider for a period of time

determined by the provider, and these records pose a possible threat to privacy. Under current

legislation, providers are legally required to disclose any information that they have gathered to

law enforcement and government agencies, and with the advent of legislation such as the Patriot

Act, this can be done without a public warrant. Citizens may use tools such as cryptographic

systems in an effort to make their data secure, unfortunately there is some debate as to whether

citizens are obligated to divulge access keys, a policy which may be a violation of constitutional

law and a citizens reasonable right to privacy (McCullagh, 2007). These issues are building a

social and political climate which is hostile to the idea of privacy. Googles CEO Eric Schmidt

famously said If you have something that you don't want anyone to know, maybe you shouldn't

be doing it in the first place. (Esguerra, 2009). Instead of demonizing the idea of privacy, we

should foster a culture which respects the right of an individual to have privacy and the

possibility of anonymity. In short, the data gathering, retaining, and divulging practices of major

telecommunications companies are a threat to privacy and must be amended at the regulatory

level.

Cellphones as we know them today are a fairly recent innovation. The original cell phone
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was the Carterphone, a complicated and unwieldy machine which connected a landline to a 2-

way radio to offer some semblance of mobility within a range of the landline. However, the first

proper cell phones went into production in the mid 1980s. These were the gigantic grey bricks

which had no voicemail, no real features to speak of and their cost was measured in the

thousands of dollars when adjusted for inflation. Gradually we began to see the size and cost

shrink, while features began to grow. First we began to see the inclusion of dedicated voicemail.

Then, in the mid to late 1990s, we saw the advent of SMS text messaging. This particular

innovation was key to the proliferation of cellphones because it pushed the boundaries of the cell

phone beyond merely voice: we had begun to send non-voice data through the mobile networks,

opening up huge avenues of usage. After this, the next logical step was to start sending different

types of data through mobile networks; thus we began to get mobile internet, and email access.

The power of the cell phone began to grow and we funneled more and more of our lives through

it. The rise of social media meant that for many, our experiences also began to flow through the

cell system as all of our accomplishments, memories and relationships were recorded through

our phones. Today, we stand at a point where there is no aspect of our lives that a cell phone

does not touch: our location, our calls, our texts, our emails, our recordings and photos, our

browsing history, and even our banking details are all present in our phones. Thus, as a cell user

goes through their daily lives the cellular carrier logs metadata and develops records containing

sensitive information including IP logs and location access. In some cases, this data may be

retained for years (ACLU 2010).

As one would expect from such a pervasive aspect of a persons life, the court has taken

steps to regulate every facet of cellphone technology and usage. There is a major debate raging

between pro-government rights groups and pro-citizens privacy groups such as the ACLU over
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what, if any, expectations of privacy a citizen should have. Of the most basic facts being

contested is who owns the data collected by cell carriers. Civil groups argue that since user

activities generate the logs, the data must belong to the user. By contrast, government groups

argue that since the carrier develops and retains these logs, the carrier owns those logs and can

utilize them in whatever manner they choose, provided it is in keeping with the carriers lawful

privacy policy. In a groundbreaking 2015 decision by a panel of 11th Circuit judges, the judges

affirmed the so called 3rd party doctrine in relation to cell location data. This means that cell

location data is the property of the cell carrier rather than the user. As a result, such data is not

subject to the 4th amendment proscription against unreasonable search and seizure (Greenberg,

2015). This reversal of earlier rulings which ruled in favor of citizens may show a shift in the

political climate of privacy policy.

The issue of cellular data retention by carriers is further muddled because there has not

been adequate regulation of what data must or may not be retained. As such, it is up to the

discretion of the risk management departments of private companies to decide on a data retention

policy. As such, some carriers will have data retention policies which are more liberal in their

gathering of data and others will have more conservative policies. In a freedom of information

act request initiated by the American Civil Liberties Union, hereafter referred to as the ACLU, it

was found that Virgin Mobile even went so far as to retain text message content for up to 90 days

after transmission; by contrast, no other major cell provider retains text message content at all

(2010). In the absence of any regulatory governance, compliance departments are left guessing at

what the right amount of retention is, leading cell providers to possibly overstep the bounds of

privacy. Many of these issues could be avoided by a legislative solution dictating precisely what

may or may not be retained as a way of protecting both citizens and corporations alike.
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One interesting facet to this whole debate is the dichotomy between the laws treatment

of the physical device of the cell phone and the treatment of data regarding a cell phones usage.

In 2014, a major Supreme Court decision upheld the obligation of officers to obtain a warrant

before searching a suspects phone. The court was sensitive to the role which cell phones play in

peoples lives, with Chief Justice Roberts noting that cell phones are such a pervasive and

insistent part of daily life that the proverbial visitor from Mars might conclude they were an

important feature of human anatomy. (Liptak, 2014). This division is indicative of a difference

between the treatment of data when it is stored on servers and data when it is stored on a local

device. The proliferation of cloud services makes it all the more imperative that a clear legal

precedent is given regarding the ownership of data when it is stored by a user in a 3rd party

service.

The major sticking point for groups like the ACLU is the circumstances under which Law

Enforcement Officers, hereafter referred to as LEOs, are allowed to utilize cellular data to their

own advantage. The major uses of telecommunications data by law enforcement are: utilizing

location data for tracking purposes, reviewing metadata for investigative purposes, and utilizing

on-phone capabilities or cellular interception for surveillance purposes.

As was previously stated, location tracking has recently been ruled as a constitutionally

legal action by the 11th Circuit court. The usage of metadata by LEOs is a topic for debate. In

recent years a portion of the Patriot Act, known as the National Security Letter Statute, has come

into play and has changed the legislative landscape of metadata privacy. The National Security

Letter statute allows the FBI to serve service providers with a national security letter which

forces said providers to turn over requested information. The NSL is made all the more powerful

because it is created without a warrant requirement, allowing agencies to access cellular and
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other data without any judiciary oversight. Additionally, it gags said providers and prohibits

them from disclosing anything regarding them being served (EFF, 2014).

The last major usage of cell data by law enforcement comes in the form of surreptitious

surveillance. One way in which LEOs can utilize cell phones in a surveillance capacity comes in

the form of the roving bug technique. This involves law enforcement utilizing carrier resources

to remotely turn on a phones microphone in order to listen in on the phones surroundings. What

makes this especially interesting is that in many cases, this can be done even when the phone is

turned off provided that the battery is inserted (McCullagh, 2006). This means that any cell

phone can be surreptitiously utilized as a spying tool at any time with no more than the flip of a

switch. Another major technology utilized by law enforcement for surveillance is the Stingray

System. The stingray is a government sanctioned version of a man-in-the-middle attack, a

technique which hackers often utilize. The LEO places a stingray device which electronically

looks and acts like a standard cellular tower. It functions as a normal cellular networking tower

would, routing cellular call traffic, SMS data, location data and data utilized for apps,

multimedia, email, and internet functionality. However, it logs all the traffic passing through it in

order to intercept communications (FOIA). This can be extremely effective when utilized by law

enforcement for surveillance and investigation, however it also has the capacity to invade the

privacy of innocent bystanders who utilize the dummy cell tower. Since the Stingray System is

untargeted, any usage of it may trap data of a targeted suspect, but it will also record the data of

any other nearby cellular users. This could be seen as an invasion of privacy, or as necessary

fallout from a powerful government tool.

The biggest shareholder in favor of reducing the mandated rights of privacy are law

enforcement organizations and government agencies. Law enforcement is fighting a war against
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criminal and terrorist element which are growing ever more technologically savvy and

sophisticated. In order to compete with this new breed of criminal, law enforcement agencies

argue that they need to be able to bring the full might of the technologies at their disposal to bear.

The position of law enforcement is in favor or reduced access to cryptography for non-law-

enforcement personnel and an expedited road to accessing cellular data, bypassing the traditional

warrant system. They argue that this will have the effect of expediting law enforcement and

government agency investigations, helping to make the public safer.

In 2014, FBI Director James Comey argued that widely available cryptography systems

significantly impede law enforcement investigations (Rosenblatt, 2014). In his statement, he

advocated the use of a back door built into major cryptography systems utilized by mobile,

desktop, and integrated devices designed to be used by law enforcement agencies. He believes

that such a system will give law enforcement the agility they need to compete with criminals

utilizing publicly available technology. Detractors of this theory point out that a back door offers

huge security vulnerabilities that no amount of architecture or engineering can surmount. They

suggest that the risk of the system being broken is too great as the system would only remain

secure for as long the full details are not known.

Another important facet of law enforcements position comes in the form of increasing

mandatory data retention policies for cellular service providers. As of now the only major

telecommunications provider which retains SMS content data is Virgin Mobile, who retains such

data for up to 90 days. Another standout company which gathers an extreme amount of user data

is Verizon, which retains IP transaction logs for up to 60 days from transmission (ACLU 2010).

Every provider has their own retention standards limiting the amount of data that law

enforcement has access to. This leaves law enforcement in a quandary, since there is no
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guarantee that a cellular provider will have retained the data which they require. However,

policymakers must be careful in setting retention practices too high as the overhead of data

storage may be unfeasible for smaller cellular providers or startup companies without the

resources of major telecommunications companies. These anti-competitive policies could have

an adverse effect on the market.

We have already talked in depth about the NSL statute which allows the pulling of

cellular data without any demonstration of reasonable suspicion of wrongdoing. An ideal future

for law enforcement would include taking the NSL statute and pulling it out from the shadows of

the Patriot Act, which will eventually expire. Instead of keeping it as a police power which may

be revoked by congress or expire, they would want the powers of warrantless cell tapping, record

requisitioning, and cell phone location access to be federally endowed and protected. This would

allow for law enforcement agencies to build their investigative policies and structure around the

ability to completely examine every part of a suspects cellular life within a set period of time.

There are also significant public health uses for cellular data. One of the most important

changes to the public 911 service over the past few years has been the migration to the E-911

system. This system overhaul is designed so that when a wireless caller dials in to 911, the

cellular carrier is automatically forced to transmit the users current location and subscriber

information to the dispatch office which is answering the call (FCC.gov, n.d.). This is a hugely

powerful tool which can help in search and rescue situations, dissuade prank callers who tie up

valuable resources, as well as regular dispatch scenarios where it may otherwise difficult to

discern caller location.

The other major stakeholder in this debate are the cell users themselves, as represented by

non-governmental organizations such as the ACLU and the Electronic Frontier Foundation.
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Their perspective is that privacy is extremely important to free speech and to the liberty of the

people, and as such it should be protected. One of the most important features about the internet

is its ability to let people anonymously interact and exchange ideas. Individuals are allowed to

explore and converse without fear of repercussion or censorship. Glenn Greenwald argues that

this feeling of safety and liberty serves an important psychological function as well. In fact, he

argues that privacy facilitates creativity and intelligence as people will behave differently if they

know they are being watched. He argues that in a system of constant monitoring, the only

defense is to render yourself sufficiently harmless, sufficiently unthreatening to those who

wield political power (Greenwald, 2014). This can be problematic for many reasons as it can

stifle creativity, exploration and growth.

There are also cases where people freely using their cellular devices can be detrimental to

the public image of police officers as they can uncover corruption at the street level. This can

have a huge negative impact on the recording citizens lives. There are several documented cases

of individuals recording incidents of police misconduct only to be arrested or sued for something

which is not a crime in most jurisdictions. Without the ability to safely use their devices to record

instances of public misbehavior, such important documentation of possible corruption or

malfeasance may be hidden as individuals may not be willing to incur the wrath of law

enforcement organizations. One particularly well known case is that of motorcyclist Anthony

Graber, who was cut off by an off duty plain clothes police officer who proceeded to exit his

vehicle with a pistol drawn without identifying himself. He then shouted at Graber to dismount

from his motorcycle and only identified himself as a law enforcement officer after he had closed

the distance and put a hand on Grabers vehicle to restrain him. Graber posted a video taken by

his helmet camera to the video sharing site Youtube in order to demonstrate the unprofessional
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behavior exhibited by the officer. He was promptly arrested and tried for wiretapping charges, a

charge carrying up a 16-year sentence (Shin, 2010). The case was eventually thrown out, but it

may show a rational basis for the fear which people may have in coming forward if their

anonymity cannot be assured.

Ironically, the primary decision maker which will have the biggest impact on the issue of

cellular privacy going forwards will not be either of our major stakeholders. Instead,

governmental groups must influence the primary decision maker through their comportment, and

their mature, responsible, and necessary usage of the powers allotted to them. The people, in

turn, must influence the primary decision maker by continuing to lobby and not letting the issue

go. The big choices which will lead to resolution must come from the judicial branch of

government. The Supreme Court must clarify the rights of citizens with regards to cellular

privacy. In this debate, there are two mutually exclusive options with one option favoring the

powers of law enforcement and government agencies and the other favoring the rights of

citizens.

If the legal landscape changes to favor government agencies and law enforcement, this

will mean a few things. First and most importantly, the miscellaneous statutes of the Patriot Act

which pertain to digital communication and cellular devices must be decoupled from the Patriot

act and made permanent powers in the domain of federal, state, and local police. It is worth

noting that, in California at least, local governments are already given access to stingray devices

and engage in cell interception without incident (FOIA Release, n.d.). In this case, legislation

would dictate that citizens have no ownership of their metadata or any other data collected by

carriers involving their cellular device. Lastly, police would need to gain the power to seize and

search phones on sight, as the push button ability to erase a cellphones data can be difficult for
Big Brother Lives in Your Pocket 10

law enforcement to overcome. There is a big upside to this as it gives a strong edge to law

enforcement agencies in investigations, increasing both speed and efficacy of investigations and

reducing court time spent producing warrants. However, there is also a large potential downside

as the system these policies make has the potential for abuse as there is no independent agency to

regulate the interface between privacy rights and the investigations of agencies. This risk of

abuse could be mitigated by developing an independent agency charged with protecting citizens

rights in the digital realm.

The other possibility is for the legal landscape to shift the other way and move towards

supporting the rights of citizens to cellular privacy. This would involve strengthening the agency

of citizens with regards to their rights over their own data. By legally making cellular data the

sole property of the individual and enforcing the warrant system, a law enforcement agency

would be forced to serve a warrant to an individual if they wanted to access cell data on that user.

Privacy would be helped by the addition of legislation which preserves the right of individuals to

not divulge access keys or codes of cryptographic systems to law enforcement. Additionally, this

scenario would ideally repeal the parts of the Patriot act dealing with warrantless wiretapping

and data collection. The upside of this policy is that it ensures that citizens are informed about

the ways in which enforcement agencies use their data and protects citizens from secretive

investigative actions by government groups. However, this policy comes with a very big

downside in that it may hamstring the efforts of law enforcement agencies and in doing so turn

the mobile world into a virtual safe haven for criminals.

In coming to my point of view, I make the assumption that power, by necessity, corrupts

and that the application of increased police power will necessarily lead to insecurity and misuse.

A prime example of government misconduct in the field of cybersecurity comes in the form of
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the 1990s NSA Clipper Chip initiative. This was a short lived and much maligned project by the

NSA which aimed at encouraging the wide adoption of the Clipper Chip cryptographic system

which had a built in backdoor for law enforcement agencies to decode any message they pleased.

This escrow key system, paired with the secretive nature of the Skipjack encryption scheme used

meant that prospective users were uneasy about the security of the system and instead migrated

to emerging open source alternatives such as PGP. AT&T researcher Matt Blaze later published

work showing that the system was deeply flawed and insecure (CryptoMuseum, n.d.). Had this

hardware system been widely implemented, the results could have been absolutely disastrous.

Regardless of the strengths of arguments in favor of expanded police powers, the cost of

security is too high. The ethical virtue of freedom and liberty are far too threatened by the

expansion of police powers into the realm of cellular data. The citizens essential rights to

privacy must be preserved. To this end, cellular providers should engineer their systems to gather

and retain as little information as possible so that there is nothing for government agencies to

subpoena. Cell providers must do more with regards to zealously and vigilantly protecting the

fundamental right of privacy for their users. By forcing regulatory agencies to seek outside

approval for device seizures, wiretaps, cell interception and record seizures, we put a balance on

a very expansive police power. By reducing the data retention requirements for telecom

companies we are ensured that our past can stay in the past.

The opposing viewpoint does have many strengths to it and there are worries concerning

enhancing the privacy rights of citizens to the detriment of police powers. Enhancing police

power does give the police a measure of agility. Law enforcement would be able to access

records regarding contacts and discussions and even present/past location in a manner of

seconds, giving them the ability to respond with a high situational understanding very quickly.
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Additionally, a policy of citizen privacy does curtail the powers of civil agencies who work to

keep the populace safe. This could have an adverse effect on crime, or even on major domestic

events such as terrorist attacks. Furthermore, this could lead certain investigations to dead ends

as cell users could destroy their devices or migrate to disposable cellphones purchased

anonymously with cash if they are security conscious.

Citizens can speak up and make a difference in this ongoing debate. A great first step is

to write to the legislature regarding forthcoming legislation. Californian senator Diane Feinstein

is on a Senate Subcommittee on Privacy, Technology, and the Law which has a huge impact on

technology policy at the national level. There are other ways to get involved by talking to groups

like the ACLU and the Electronic Freedom Frontier. However, the single most important step

you can take is to simply be informed and remain up to date on these issues so that you are not

blindsided by a drastic shift in your rights.

The cellular phone is a powerful tool for good, but it has the power to limit us as well. It

is up to us to protect our rights with regards to privacy and demand a higher standard of

protection from our service providers. This recommendation focuses on individual liberties to the

possible detriment of public safety and justice. This is justified because without individual

liberty, the ability of the government to interfere with the lives of citizens is too strong.
Big Brother Lives in Your Pocket 13

References

ACLU. (2010, August). Cell Phone Location Tracking Request Response Cell Phone Company

Data Retention Chart. Retrieved October 11, 2015, from https://www.aclu.org/cell-

phone-location-tracking-request-response-cell-phone-company-data-retention-chart

CryptoMuseum. (n.d.). Clipper Chip. Retrieved October 12, 2015, from

http://www.cryptomuseum.com/crypto/usa/clipper.htm

EFF (2014, March 5). National Security Letters: FAQ. Retrieved October 12, 2015, from

https://www.eff.org/issues/national-security-letters/faq

Esguerra, R. (2009, December 10). Google CEO Eric Schmidt Dismisses the Importance of

Privacy. Retrieved October 11, 2015, from

https://www.eff.org/deeplinks/2009/12/google-ceo-eric-schmidt-dismisses-privacy

FCC. (n.d.). 9-1-1 and E9-1-1 Services. Retrieved October 12, 2015, from

https://www.fcc.gov/encyclopedia/9-1-1-and-e9-1-1-services

FOIA Release. (n.d.). Retrieved September 29, 2015, from http://epic.org/foia/fbi/stingray/FBI-

FOIA-Release-02072013-OCR.pdf

Greenberg, A. (2015, May 6). Court Rules Cellphone Data Belongs to Your Phone Carrier, Not

You. Retrieved October 11, 2015, from

http://www.slate.com/blogs/future_tense/2015/05/06/blow_to_cellphone_privacy_flip_fl

op_court_case_says_data_belongs_to_you.html

Greenwald, G. (2014, October 1). Transcript of "Why privacy matters" Retrieved October 12,

2015, from

http://www.ted.com/talks/glenn_greenwald_why_privacy_matters/transcript?language=e

n#t-1140902
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Liptak, A. (2014, June 25). Major Ruling Shields Privacy of Cellphones. Retrieved September

29, 2015, from http://www.nytimes.com/2014/06/26/us/supreme-court-cellphones-

search-privacy.html?_r=0

McCullagh, D. (2006, December 4). FBI taps cell phone mic as eavesdropping tool - CNET.

Retrieved October 12, 2015, from http://www.cnet.com/news/fbi-taps-cell-phone-mic-as-

eavesdropping-tool/

McCullagh, D. (2007, December 14). Judge: Man can't be forced to divulge encryption

passphrase - CNET. Retrieved October 16, 2015, from http://www.cnet.com/news/judge-

man-cant-be-forced-to-divulge-encryption-passphrase/

Rosenblatt, S. (n.d.). FBI director demands access to private cell phone data - CNET. Retrieved

September 29, 2015, from http://www.cnet.com/news/fbi-director-demands-access-to-

private-cell-phone-data/

Shin, A. (2010, June 16). Traffic stop video on YouTube sparks debate on police use of Md.

wiretap laws. Retrieved October 12, 2015, from http://www.washingtonpost.com/wp-

dyn/content/article/2010/06/15/AR2010061505556.html