Source: CNET News

Two years ago, when the FBI was having trouble catching a band of armed robbers known as the “Scarecrow Bandits” that hit up more than 20 Texas banks, it came up with a novel method of locating the thieves: track them by their cell phone.

FBI agents obtained logs from mobile phone companies corresponding to what their cellular towers had recorded at the time of a dozen different bank robberies in the Dallas area. The voluminous records showed that two phones had made calls around the time of all 12 heists, and that those phones belonged to men named Tony Hewitt and Corey Duffey. A jury eventually convicted the duo of multiple bank robbery and weapons charges.

Even though police are tapping into the locations of mobile phones thousands of times a year, the legal ground rules remain unclear, and federal privacy laws written a generation ago are ambiguous at best. On Friday, the first federal appeals court to consider the topic will hear oral arguments (PDF) in a case that could establish new standards for locating wireless devices.

In that case, the Obama administration has argued that warrantless tracking is permitted because Americans enjoy no “reasonable expectation of privacy” in their–or at least their cell phones’–whereabouts. U.S. Department of Justice lawyers say that “a customer’s Fourth Amendment rights are not violated when the phone company reveals to the government its own records” that show where a mobile device placed and received calls.

Those claims have alarmed the ACLU and other civil liberties groups, which have opposed the Justice Department’s request and plan to tell the U.S. Third Circuit Court of Appeals in Philadelphia that Americans’ privacy deserves more protection and judicial oversight than what the administration has proposed.

“This is a critical question for privacy in the 21st century,” says Kevin Bankston, an attorney at the Electronic Frontier Foundation who will be arguing on Friday. “If the courts do side with the government, that means that everywhere we go, in the real world and online, will be an open book to the government unprotected by the Fourth Amendment.”

Not long ago, the concept of tracking cell phones would have been the stuff of spy movies. In 1998’s “Enemy of the State,” Gene Hackman warned that the National Security Agency has “been in bed with the entire telecommunications industry since the ’40s–they’ve infected everything.” After a decade of appearances in “24″ and “Live Free or Die Hard,” location-tracking has become such a trope that it was satirized in a scene with Seth Rogen from “Pineapple Express” (2008).

Once a Hollywood plot, now ‘commonplace’
Whether state and federal police have been paying attention to Hollywood, or whether it was the other way around, cell phone tracking has become a regular feature in criminal investigations. It comes in two forms: police obtaining retrospective data kept by mobile providers for their own billing purposes that may not be very detailed, or prospective data that reveals the minute-by-minute location of a handset or mobile device.

Obtaining location details is now “commonplace,” says Al Gidari, a partner in the Seattle offices of Perkins Coie who represents wireless carriers. “It’s in every pen register order these days.”

Gidari says that the Third Circuit case could have a significant impact on police investigations within the court’s jurisdiction, namely Delaware, New Jersey, and Pennsylvania; it could be persuasive beyond those states. But, he cautions, “if the privacy groups win, the case won’t be over. It will certainly be appealed.”

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My Take: I’m not sure I agree with cell phone tracking for any reason, given the potential for abuse. Think about it: if we freely give up our right to our privacy when it comes to everyday conversations, everything we attempt to accomplish on a cell phone, whether it’s trying to get an instant car insurance quote, by a used digital copier, or set up airline reservations for a colocation for a business meeting. We shouldn’t have to wonder whether or not we are being tracked every time we pick up our cell hones to do everyday mundane tasks, whether it’s set up a babysitter for a date night with our husbands, buy used copy machines, or talk to a friend about making a CD copy of our favorite band’s new work.

Speaking of call data centers, I’d also be curious to find out whether our 4^th amendment protections extend to our businesses calls via computer-based phone service providers, such as Vonage or Skype or whether we’d be tracked by our attempts to obtain auto insurance quotes, or homeowners’ insurance over the Internet. In short, the long list of things Big Brother can’t doo sees to be shrinking.

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