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The Use of Government Tracking Technologies on the Public Violates the Public’s Consti-

tutional Rights to Privacy and Free Speech

Jordan D. Rich, B.S., Department of Bioengineering, University of Utah

The American public’s right to privacy is being violated by government and law enforce-

ment agencies that spy on individuals’ private lives. Various local, state, and federal law enforce-

ment and intelligence agencies are employing technologies that assemble information about

American citizens through such technologies as license plate scanners, cell-phone monitoring

equipment, and internet browsing “wire-taps” [1,2,3]. Tracking information is being indefinitely

stored into databases that are accessible by various government agencies and can assemble a

shockingly specific portrayal of an individual’s private affairs [1]. Furthermore, knowledge

about specific capabilities of tracking technologies and policies about its storage, use, and shar-

ing among agencies is being shielded from public disclosure by acts of Congress and of the De-

partment of Justice (DOJ) [1,4]. Congressional acts include provisions within the National Secu-

rity Act and the Freedom of Information Act as well as equipment classification under Interna-

tional Traffic in Arms Regulations (ITAR) that maintain secrecy surrounding the capabilities and

uses of tracking technology. Those congressional acts, as they pertain to government agencies’

use of tracking technologies, ultimately violates the public’s right to privacy and free speech as

established by the First, Fourth and Fourteenth Amendments of the Constitution [4]. This memo-

randum urges that the unconstitutional provisions or interpretations of the National Security Act

and the Freedom of Information Act as well as equipment classification under ITAR be declared

unlawful by the federal courts.

The use of technologies by government agencies to track and store private information

about the public has become prevalent within the last decade. Cell-phone monitoring technology,

known within the government as “cell site simulators,” is being utilized by the Federal Bureau of

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Investigations (FBI) and implemented within local and state agencies to intercept location data,

and likely communication data, from individuals’ cell-phones [2]. Local, state and federal agen-

cies have widely implemented vehicle license plate scanner technology across the country to

track individuals’ movements [1]. Lastly, it was discovered following an internal government

leak that the National Security Agency (NSA) is actively monitoring and storing the internet

browsing history of Americans [3]. In order to describe the effect of the use of tracking technolo-

gies on privacy rights, specifics about the tracking technologies will be discussed below.

The first technology, cell site simulators, is perhaps the most difficult to discuss because

information about its capabilities is being withheld from public knowledge. What is known is

that cell site simulators act as cell-phone towers in order to intercept cellular signals [5]. How-

ever, much is unknown to the public about cell site simulator technology. For example, it is not

known whether a cell site simulator unit targets one specific cell phone or is capable of monitor-

ing hundreds of thousands or even millions of cell phones simultaneously. Moreover, it is not

even known whether the equipment strictly obtains position data or is capable of intercepting

voice and internet data also. It is unknown because the FBI claims that disclosure is protected by

acts of congress [4]. In an attempt to secure disclosure, the American Civil Liberties Union

(ACLU) has filed multiple disclosure requests and brought suit against local and state agencies

and the FBI in various jurisdictions to obtain details pertaining to the technology and policies re-

garding governmental use of cell site simulators. So far the FBI, by and through its agent Bradley

S. Morrison, Supervisory Special Agent and Chief of the FBI’s Tracking Technology Unit, has

justified its secrecy by claiming that:

Disclosure about even minor details about the use of cell site simulators may reveal more in-

formation than their apparent insignificance suggests because, much like a jigsaw puzzle,

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each detail may aid in piecing together other bits of information even when the individual

piece is not of obvious importance itself [4].

Clearly, the FBI wants the public to remain largely in the dark about its tracking activities, which

prevents the public from knowing whether their privacy rights are being protected.

Despite the FBI’s evasive actions, it has been brought to light that cell site simulators

have been unlawfully utilized during investigations by law enforcement agencies. The ACLU

has uncovered internal law enforcement emails that describe the unlawful use of cell site simula-

tors to circumvent search warrants in criminal investigations [6]. Furthermore, it was discovered

that law enforcement officials participating in a terrorist investigation in Los Angeles utilized

cell site simulators against 21 criminal investigation subjects without seeking judicial approval

[5]. Thus, it has already been demonstrated that privacy rights have been violated by government

agencies through the improper use of cell site simulators.

Like cell site simulators, license plate scanner technology usage by law enforcement

agencies is emerging across the United States. The use of license plate scanners is supported by

federal grants with the overall goal of establishing a nationwide cooperative database that tracks

vehicle movements [7]. The databases store vehicle identification and location data obtained via

video surveillance equipment located at strategic places on roadways [1]. While many law en-

forcement agencies claim that license plate scanners are in use to protect the public and are pri-

marily in place to apprehend persons of interest, statistics demonstrate that less than 1% of the

license plates scanned nationwide correspond to suspicious vehicles [1]. As such, over 99% of

vehicles tracked by license plate scanner technology are owned by innocent Americans. Records

pertaining to the driving habits of nearly all Americans are being collected and stored indefi-

nitely (in all but a few states) and shared among the various local, state, and federal agencies [1].

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The use of invasive tracking technologies on the innocent public is a red flag that indicates little

care by law enforcement for the public’s privacy.

The impact of license plate scanner technology on the privacy rights of the American

people has not yet been addressed by the courts. However, on a similar subject, it was deter-

mined in United States v. Katzin that law enforcement agencies must obtain a search warrant in

order to perform GPS tracking because otherwise, it is a breach of an individual’s Fourth

Amendment rights to unreasonable searches and seizures. The US Court of Appeals for the D.C.

Court stated during a GPS-tracking case that:

A person who knows all of another’s travels can deduce whether [they are] a weekly church

goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving

medical treatment, an associate of particular individuals or political groups - and not just

one such fact about a person, but all such facts [8].

Thus by tracking a person’s driving patterns, one can piece together a broad picture of a person’s

private life. The ease at which a government official could peep into an individual’s private life

demonstrates that privacy rights are not being observed properly.

Perhaps even more disturbing is the NSA’s collection of much of the internet data usage

within the United States. It has been estimated that approximately 75% of all U.S. web traffic is

monitored and stored by the NSA at one of the largest data storage facilities in the world [3].

Monitoring a person’s internet usage is akin to tracking the internal thoughts of a person because

one’s thoughts and how they use the internet are interconnected. As frequently as searching for

information, individuals utilize the internet as a communication platform similar to cellphone

technology, with massive numbers of emails and other communications stored in the “cloud” and

into servers primarily owned by technology companies. An information leak by ex-CIA agent

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Edward Snowden revealed that the NSA has strong-armed technology companies like Apple,

Google, Microsoft, and Yahoo into providing it unimpeded access to the public’s email accounts

[3]. The NSA has claimed its invasive monitoring of internet traffic a matter of national security,

however, it is just as much a matter of constitutionally protected privacy rights.

At odds with constitutional immunities, the NSA, FBI, and other government agencies

claim that their tracking activities are upheld by acts of congress that permit them to inhibit pub-

lic information disclosure and circumvent the public’s rights to privacy and free speech

[1,2,3,4,7]. Before discussing the effect of tracking technologies on constitutional immunities,

the congressional acts that government agencies rely upon to uphold their secrecy will be pre-

sented. Title 5, Section 301 of the United States Code (“Departmental Regulations”) permits the

head of an executive department to determine rules pertaining to the dissemination of the depart-

ment’s information. The attorney general, who is the head of the Department of Justice, has im-

plemented policies that deny the dissemination of investigative techniques and procedures to the

public. Furthermore, Title 5, Section 552(6)(7)(E) of the United States Code (“Freedom of Infor-

mation Act”) provides protection to law enforcement agencies against information disclosure, “in

order to preserve the utility of [law enforcement] techniques and procedures and mitigate the risk

that they will be circumvented.” Moreover, investigative techniques utilized by law enforcement

and intelligence agencies claim to be aimed primarily at preventing terrorism and are therefore

considered homeland security information under the Homeland Security Act (defined by the act

as information that would improve the identification or investigation of a suspected terrorist). In

the case of cell site simulators, public disclosure of information has been made punishable by 20

years imprisonment and up to $1 Million in fines under ITAR because cell site simulators have

been registered on the United States Munitions List as a regulated defense article [4]. Without

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disclosure of how tracking technologies are being employed on the public by law enforcement

and intelligence agencies, the public’s right to privacy and free speech is threatened.

A primary threat is that the unchecked use of tracking technologies by government agen-

cies constitutes a violation of the Fourth Amendment’s protection against unreasonable searches.

The Fourth Amendment of the Constitution states that, “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirma-

tion [9].” Particularity pertaining to what constitutes a search was expanded upon by the U.S. Su-

preme Court in United States v. Jacobsen wherein it was declared that, “[a] search occurs when

an expectation of privacy that society is prepared to consider reasonable is infringed [10].”

Moreover, the U.S. Supreme Court held in Katz v. United States that, “[r]egardless of the loca-

tion, a conversation is protected from unreasonable search and seizure under the Fourth Amend-

ment if it is made with a reasonable expectation of privacy [11].” It is reasonable to consider that

a majority of Americans expect privacy when utilizing cellular and internet technologies because

the technologies are developed with privacy enabling features. Furthermore, it is reasonable to

consider that a majority of Americans would feel that their privacy was being violated if all of

their comings and goings were known and recorded (similar to a realization that they are being

stalked). As it pertains to the public’s reasonable expectation of privacy, uncertainty surrounding

the capabilities of tracking technologies only amplifies the probability that the public’s Fourth

Amendment rights are being violated.

Like the public’s Fourth Amendment privacy rights, the use of tracking technologies vio-

lates the public’s right to free speech. Free speech was established as a fundamental right by the

First Amendment of the Constitution, which declares that, “[c]ongress shall make no law …

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abridging the freedom of speech [9].” Studies into the effects of surveillance on freedom of

speech has demonstrated that, “an individual will become more cautious in the exercise of their

protected rights of expression, protest, association, and political participation [when] they con-

sider themselves under constant surveillance [7].” Moreover, psychological studies have demon-

strated that people alter their behavior when they know they are being watched [1]. Thus, the

very act of mass surveillance violates the public’s right to free speech because it tends to inhibit

the public from free expression.

The use of free speech inhibiting and privacy invading tracking technologies by local and

state agencies translates into deprivations by state actors of the immunities guaranteed by the

First and Fourth Amendments and violates the public’s Fourteenth Amendment rights also. The

Fourteenth Amendment of the Constitution, upon other things, declares that, “[n]o State shall

make or enforce any law which shall abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of life, liberty, or property, without due

process of law [9].” Liberty was defined by the U.S. Supreme Court in Meyer v. Nebraska as the

right to, “enjoy those privileges long recognized at common law as essential to the orderly pur-

suit of happiness by free men [and women] [12].” In the scope of liberty and the privacy rights

that liberty upholds, no one is free when they are under constant scrutiny by government agen-

cies employing tracking technologies.

The constant scrutiny over the public’s private affairs by government agencies, and more

importantly, the congressional acts that government agencies rely upon to uphold the use of

tracking technologies on the public is a violation of the public’s constitutional rights. The Consti-

tution forms the foundation of all laws in the United States and as such, the Constitution over-

rides congressional acts. On the basis of the public’s constitutional rights to privacy and free

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speech, provisions or interpretations of the National Security Act and the Freedom of Infor-

mation Act that uphold law enforcement tracking technologies as well as equipment classifica-

tion under ITAR and other actions that maintain secrecy surrounding the capabilities and uses of

tracking technologies should be declared unlawful by the federal courts.

References.

1. American Civil Liberties Union (ACLU). “You are being tracked: How License Plate Read-

ers Are Being Used to Record Americans’ Movements.” (2013), https://www.aclu.org/alpr.

2. American Civil Liberties Union (ACLU). “Documents in ACLU Case Reveal More Detail on

FBI Attempt to Cover Up Stingray Technology.” (2014), https://www.aclu.org/blog/national-

security-technology-and-liberty/documents-aclu-case-reveal-more-detail-fbi-attempt.

3. American Civil Liberties Union (ACLU). “The NSA’s Other Privacy Loophole.” (2014),

https://www.aclu.org/blog/national-security/nsas-other-privacy-loophole.

4. Hodai v. The City of Tuscon, No. C21041225 (Sup. Ct. Arizona, Pima County. 2014).

5. Campbell, J. “LAPD Spied on 21 Using StingRay Anti-Terrorism Tool: Mimicking a cell-

phone tower, it bypasses checks and balances.” LATimes (2013).

6. American Civil Liberties Union (ACLU). “Internal Police Emails Show Efforts to Hide Use

of Cell Phone Tracking.” (2014), https://www.aclu.org/blog/national-security-technology-and-lib-

erty/internal-police-emails-show-efforts-hide-use-cell.

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7. International Association of Chiefs of Police. “Privacy Impact Assessment Report for the Utilization

of License Plate Readers,” p. 13 (2009), http://www.the-

iacp.org/LinkClick.aspx?fileticket=N%2BE2wvY%2F1QU%3D&tabid=87.

8. United States v. Katzin, 824 F. 2d 234 (1987).

9. U.S. Constitution. Print.

10. United States v. Jacobsen, 466 U.S. 109 (1984).

11. Katz v. United States, 389 U.S. 347 (1967).

12. Meyer v. Nebraska, 262 U.S. 390 (1923).