'E911' Turns Cell Phones into Tracking Devices

by Chris Oakes
3:10pm 6.Jan.98.PST

Cell phones will be taking on a new role in 1998, beginning a slow transition to becoming user tracking devices. The outcome of this shift reassures some, but has others calling for restrictions on how cell-locating information can be used.

The impending first phase of the FCC's rules is aimed at enabling emergency services personnel to quickly get information on the location of a cell phone user in the event of a 911 call. By April, all cellular and personal communications services providers will have to transmit to 911 operators and other "public safety answering points" the telephone number and cell site location of any cell phone making a 911 call.

The aim of the law is to bring to cell phone users the same automatic-locating capability that now exists with wireline phones. But while the FCC's aim is simple on the surface - to make it easier for medical, fire, and police teams to locate and respond to callers in distress - the technology is also giving rise to concerns over the ease with which the digital age and its wireless accouterments are bringing to tracking individuals.

"The technology is pretty much developing to create a more and more precise location information. The key question for us is 'what is the legal standard for government access?'" says James Dempsey, senior staff counsel at the Center for Democracy and Technology.

Those seeking restrictions on the use of cell phone tracking information emphasize that, unlike the stationary wireline phones, a cell phone is more specifically associated with an individual and their minute-by-minute location.

In December, the FCC began requiring wireless providers to automatically patch through any emergency calls made through their networks. Subscriber or not, bills paid or unpaid, anyone with a cell phone and a mobile identification number was thus guaranteed to see their 911 calls completed.

1998 brings new rules into place that take that initial action much further. By April, emergency service personnel will receive more than just the call - they'll also get the originating cell phone's telephone number and, more significantly, the location of the cell site that handled the call.

The FCC's "Enhanced 911 services" requirements that wireless providers make this information available is the beginning of a tracking system that by 2001 will be able to locate a phone within a 125-meter radius.

To provide this precise location information, Jeffrey Nelson of the Cellular Telecommunications Industry Association says different carriers will choose different methods of gathering location information, but all of them involve detecting the radio frequencies sent from the phone to service antennas. Because a phone sends additional signals to other antennas in addition to the primary one, "triangulation" lets them calculate the caller's whereabouts within that multi-antenna region. All this happens automatically when a cell phone is turned on.

The upshot, Nelson says, is that cellular callers will "be able to make a call to 911 or the appropriate emergency number without having to explain where they are." He cites a case in which a woman stranded in a blizzard, unable to tell where she was, was located by use of her cell phone. Various systems are being tested by most providers, he reports, but many are already working with methods to provide such location information today.

But this tracking issue has privacy advocates seeking preventive legislation to see that the instant accessibility of the information to emergency units doesn't just as easily deliver the same tracking information to law enforcement agencies - from local police on up to the FBI.

"The FCC has been in the picture from the 911 perspective," says Dempsey of the Center for Democracy and Technology. But to him, this obvious emergency benefit of E911 necessitates legal action to draw boundaries around its use by other organizations, namely law enforcement.

That's where the issue runs into the same waters as the controversy surrounding the expansion of the Communications Assistance for Law Enforcement Act. That 1994 law was meant to keep communications companies from letting the advancement of digital and wireless technology become an obstacle to the surveillance needs of law enforcement agencies. But the CDT and the Electronic Frontier Foundation, among others, have argued that as CALEA undergoes actual implementation (a process that is still ongoing), the FBI is seeking to expand its surveillance capabilities by seeking unjust specifications for phone systems' compliance with the law.

Dempsey wants to see both CALEA and the new E911 requirements be implemented with clear restrictions on the ability of law enforcement to tap into personal information on users, especially their whereabouts at any one time.

With the implementation of E911, Dempsey says that in effect, "your phone has become an ankle bracelet. Therefore we are urging the standard for government access be increased to a full probable cause standard. [Law enforcement agencies] have to have suspicion to believe that the person they are targeting is engaged in criminal activity." Currently, he says, to get a court order allowing the surveillance of cell phone use, law enforcement only has to prove that the information sought - not the individual - is relevant to an ongoing investigation.

"It says to law enforcement you've got to have a link between the person you're targeting and the crime at issue," Dempsey says. "It cannot be a mere fishing expedition." While the CDT and others seek beefed-up constitutional restrictions on the ability for law enforcement to obtain court orders in such cases, the FBI says the process for obtaining such court orders is already adequate.

"We work under the strict provisions of the law with regard to our ability to obtain a court order," said Barry Smith, supervisory special agent in the FBI's office of public affairs. "Law enforcement's access to [cell phone data] falls very much within the parameters of the Fourth Amendment." He also says that under CALEA, the call data the FBI seeks does not provide the specific location of a wireless phone.

The FCC and its E911 requirements are distinct from CALEA, but because they offer the ultimate form of tracking information - far more instantly and explicitly than the FBI is seeking in the implementation of CALEA, E911 may be ripe for access by law enforcement for non-emergency needs.

As for the distinction between the dispute over CALEA and the FCC's E911 services, Smith says the latter has nothing to do with the FBI. "There's not any crossover between the two."

But, says Dempsey, when law enforcement serves a court order, they could get location information through the requirements established by E911.