In light of the recent disclosures about iPhone and Android location tracking, Sen. Al Franken and the Senate Judiciary Committee are taking the very welcome step of shedding light on privacy and smart phones with a hearing tomorrow. The senators will undoubtedly quiz Apple and Android's parent company Google about their practices of storing a log of users’ movements on their phones. (We have some questions about Apple’s explanation as well.) We hope Sen. Franken will also press Apple and Google on whether and when the phones share that information with the companies. There is some indication that it’s a common practice.

Tomorrow's hearing will be a very good thing – consumers should know what information smart phones and other devices are storing about them and consumers should be able to control that information. However we can’t let the hearing obscure the fact that all mobile phones are portable tracking devices. These devices have to touch base with cell towers about every seven seconds in order to receive data and know if someone is trying to call, email, text, or otherwise communicate.

Apple’s and Android’s use of location data makes even clearer that companies are building on this basic reality. They are using triangulation (the strength of signals from multiple towers), signals from other mobile networks (like Wi-Fi hot spots), and GPS to make this location information even more precise.

Ok, so what now? We aren’t giving up our cell phones; I think we all know that. So we’re going to have to create protections for how that information can be accessed, and in turn, protect ourselves against unwarranted invasion of privacy. The ACLU believes one of the most important protections must be against government access. In fact, it’s long overdue.

You see, because Congress has not set a clear standard for what level of evidence law enforcement must meet to get location information, the rules are fuzzy. You can read all the gory details here, but the short story is that the Department of Justice generally doesn’t appeal cases that challenge the government's use of location information, especially if it looks like courts might set a higher standard, such as requiring a warrant to obtain this information. The government also attempts to blur the distinction between different types of location information by claiming it only wants less precise information. And because there is no clear standard from Congress, even when the Department of Justice recommends higher standards, Assistant U.S. Attorneys in the states who are handling the actual cases involving these issues don't have to follow them.

Equally troubling is given how long we’ve had cell phones, Congress has never said what the standard for access should be. That has to change. The ACLU is a partner in a coalition with other privacy groups, libertarian organizations and major companies (including Google!) who all agree that the appropriate standard for location information is a warrant issued by a court and backed by probable cause.

Congress has held numerous hearings in the last year on reform of the Electronic Communication Privacy Act (which would cover location privacy). We must let Congress know that it has to give us back our location privacy and require a warrant for law enforcement access.

(Originally posted on the Blog of Rights.)

The Department of Justice has just released its annual report on its surveillance activities for 2010 including its use of secret court orders, National Security Letters (NSLs) and electronic and physical surveillance — and boy were they busy. The report disclosed a dramatic increase in surveillance of Americans between 2009 and 2010, and these statistics don’t even include surveillance conducted under the new FISA Amendments Act.

The government more than quadrupled its use of secret court subpoenas, known as 215 orders, which give the government access to "any tangible thing," including a wide range of sensitive information such as financial records, medical records, and even library records. In 2010, the FBI made 96 applications, up from just 21 in 2009.

There was also a huge increase in NSLs, which allow the FBI to demand records related to a broad range of personal information, including financial records, a list of e-mail addresses with which a person has corresponded, and even the identity of a person who has posted anonymous speech on a political website, all without the permission or supervision of a court. In 2010, the FBI more than doubled the number of U.S. persons it surveilled with NSLs, requesting 24,287 NSLs on 14,212 people, up from 14,788 NSLs on 6,114 people the year before. The FBI also increased its electronic and physical surveillance, making 1,579 applications to wiretap and physically search individuals’ property last year, up from 1,376 the year before.

In just a few weeks, three of the most controversial provisions of the Patriot Act are set to expire: the aforementioned 215 orders; the roving wiretap provision that allows the government to listen in on phone calls without specifically identifying a phone line for their tap, or even a target; and the "lone wolf provision," which has never been used, but nevertheless allows the government to conduct surveillance on non-U.S. citizens who have no connection to a terrorist organization.

This report is yet another example of the need for reform. For nearly 10 years, the Patriot Act has allowed the government to abuse the privacy of innocent Americans by spying on them without cause or accountability. With three of the most troubling provisions expiring at the end of the month, now is the time to demand that Congress protect our Constitutional rights, and rein in the government’s abusive surveillance practices.

(Originally posted on the Blog of Rights.)

Derby, Kansas, high school sophomore Jonathan Villarreal was walking to the bus after school when a police officer ordered him to pull his pants up above his hips. Jonathan refused, on the grounds that the school day was over. As reported in the Wichita Eagle, here’s what happened next:

[Villarreal] said one of the officers, a man who was larger than him, pulled him to the ground by the neck and told him to stop resisting arrest. Villarreal denied he was resisting.

Both officers kneed him in the back and neck while he was on the ground, he said.

Because they were physical with him, he struggled to get up, but was pushed back down, he said.

At one point as he tried to get up, Villarreal said he felt his arm break when he was pushed back down.

After Villarreal tried three times to get up, one officer fired a Taser at his chest, he said. Although he was wearing a heavy coat, he still felt an electrical shock, he said.

According to the article, the police department is investigating the incident. But, sadly, it illustrates a larger problem that continues to pop up around the country: the use of street-policing tactics against kids, and disproportionately kids of color, for behavior that, at worst, might merit ordinary school-based discipline.

Around the country, police assigned to patrol school campuses — where police may have a legitimate role in responding to serious criminal conduct or imminent danger — often direct their efforts where law enforcement is clearly misplaced. This is part of a disturbing national trend called the School-to-Prison Pipeline, wherein children are funneled out of public schools and into the juvenile and criminal justice systems. Jonathan’s story is a perfect example of this larger problem. A school’s right to regulate dress code is one thing; but whatever role such regulations play in a school’s educational mission, they fall miles short of justifying a police officer’s use of brutal force against a kid.

Every child deserves an educational experience free from inappropriate policing. Over and over again, however, a pattern emerges: students of color are most likely to face overaggressive policing in schools and to suffer long-lasting effects on their educational prospects as a result. Being arrested nearly doubles the odds that a child will drop out of school, and, if coupled with a court appearance, nearly quadruples the odds of dropout; an arrest also lowers standardized test scores, reduces future employment prospects, and increases the likelihood of future interaction with the criminal justice system.

The ACLU is engaged in nationwide advocacy against over-policing in the classroom. One aspect of that advocacy is a case we filed with the New York Civil Liberties Union and the law firm Dorsey & Whitney challenging the manner in which New York Police Department officers are deployed in public middle and high schools in New York City. Following years of investigation and advocacy, the lawsuit argues that a pattern of unlawful arrests, seizures, and uses of force violate the constitutional rights of students throughout New York City.

Jonathan’s story has disturbing echoes in our lawsuit: In New York City, kids are routinely arrested and subjected to force for behavior that arguably violates school rules but falls far short of criminal conduct. The litigation tells several of these stories. One 12-year-old girl was handcuffed and arrested for drawing on a desk in erasable marker. Another student — a 15-year-old girl — was painfully handcuffed and arrested for not proceeding quickly enough to detention.

Our lawsuit is pending. We hope that it will lead to meaningful reforms in New York City. Beyond the immediate ruling we seek from the court, we hope it has a broader impact as well. Eventually, policing in the school environment should be limited to only the most extreme circumstances. But the realm of ordinary school discipline should belong to educators, not cops.

(Originally posted on the Blog of Rights.)