This Is Why the Government Can Legally Collect Your Cell Phone Data

Recent news of a secret court order allowing the National Security Agency to collect thorough records of Verizon customers' phone calls and location data is a chilling, albeit not exactly surprising revelation. And after the initial leak, it appears the surveillance is much more widespread than first reported, and all part of the NSA's secret PRISM progam. This ongoing surveillance under the auspice of the Patriot Act is indicative of today's increasing privacy concerns, but the legality of phone surveillance dates back over three decades ago.

What the NSA is collecting from Verizon and other carriers is very much of its time: The smartphone market only just recently began to outpace feature phones, and having a GPS in your pocket with you everywhere you go would've been unheard of just a few years back. But the reason why authorities can seize cell phone records actually dates back to 1979, after the Supreme Court ruling of Smith v. Maryland.

In that case, the high court held that phone numbers are exempt from unreasonable search and seizure under the fourth amendment, as ProPublica explains in this detailed breakdown.

Government agencies can collect users' cell phone location data without a warrant and without probable cause, as long as the data contains "specific and articulable facts" related to an investigation, as per the Electronic Communications Privacy Act. A number of states have proposed laws calling for an update to ECPA, including a recent attempt introduced in the House of Representatives by California Democrat Zoe Lofgren. Lofgren's bill is an attempt to change the legality of both obtaining emails and location data which currently, under the ECPA, don't require a warrant.

Fast-forward 28 years and, as ProPublica put it, "Police can thank U.S. v. Forrester, a case involving two men trying to set up a drug lab in California, for the ease of access. In the 2007 case, the government successfully argued that tracking IP addresses was no different than installing a device to track every telephone number dialed by a given phone (which is legal)."

Even stranger, the ECPA lays out a seemingly arbitrary 180-day cutoff — a digital statute of limitations of sorts — wherein only a subpoena but not a warrant is all that's required once emails and text messages are 180 or more days old. Within 180 days though, a warrant is required in order to obtain messages.

After Wednesday's NSA leak, the Senate Intelligence Committee defended its practice with a response yesterday. Saxby Chambliss, a Republican senator who is the vice chair of the Intelligence Committee, reiterated, "This is nothing particularly new. This has been going on for seven years under the auspices of the FISA authority, and every member of the United States Senate has been advised of this."

"It has proved meritorious because we have gathered significant information on bad guys, but only on bad guys, over the years," Chambliss continued.

Such widespread, post-2001 surveillance is new, but the genesis of authorities' sweeping reach dates back much further than the Patriot Act.