We're Watching... Your Phone

The New York Times reports:

Most Americans carry cellphones, but many may not know that government agencies can track their movements through the signals emanating from the handset.

In recent years, law enforcement officials have turned to cellular technology as a tool for easily and secretly monitoring the movements of suspects as they occur. But this kind of surveillance - which investigators have been able to conduct with easily obtained court orders - has now come under tougher legal scrutiny.

In the last four months, three federal judges have denied prosecutors the right to get cellphone tracking information from wireless companies without first showing "probable cause" to believe that a crime has been or is being committed. That is the same standard applied to requests for search warrants.

...

Cellular operators like Verizon Wireless and Cingular Wireless know, within about 300 yards, the location of their subscribers whenever a phone is turned on. Even if the phone is not in use it is communicating with cellphone tower sites, and the wireless provider keeps track of the phone's position as it travels. The operators have said that they turn over location information when presented with a court order to do so.

Prosecutors, while acknowledging that they have to get a court order before obtaining real-time cell-site data, argue that the relevant standard is found in a 1994 amendment to the 1986 Stored Communications Act, a law that governs some aspects of cellphone surveillance.

The standard calls for the government to show "specific and articulable facts" that demonstrate that the records sought are "relevant and material to an ongoing investigation" - a standard lower than the probable-cause hurdle.

I'm not sure that cell phone tracking is as big of a problem as "privacy advocates" will claim. It reveals the approximate location of a phone (not necessarily the owner), but not the anything that a search warrant would normally be required for. It's not giving the contents of calls or the contents of homes. The information is essentially the same as (and possibly less accurate than) what could be obtained by following a suspect's public movements.

The magistrate judges, however, ruled that surveillance by cellphone - because it acts like an electronic tracking device that can follow people into homes and other personal spaces - must meet the same high legal standard required to obtain a search warrant to enter private places.

"Permitting surreptitious conversion of a cellphone into a tracking device without probable cause raises serious Fourth Amendment concerns, especially when the phone is monitored in the home or other places where privacy is reasonably expected," wrote Stephen W. Smith, a magistrate in Federal District Court in the Southern District of Texas, in his ruling.

This might make sense if the information revealed more than mere (possible) presence at a location. However, as far as I can tell the information says "suspect may be home" rather than "suspect is in his basement harvesting his marijuana plants."

For the record, the Fourth Amendment (which I do not believe applies here, for lack of search or seizure) states:

The 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...

Congress may need to address the issue more directly, but the 1994 standard sounds most appropriate.

Representation Without Citizenship

WASHINGTON (Reuters) - A Republican lawmaker on Tuesday proposed changing the U.S. Constitution to exclude non-citizens from the Census for the purpose of drawing congressional districts, a move that effectively would deny them a voice in U.S. politics.

Under the present system, as determined by the 14th amendment to the Constitution, the Census Bureau counts all individuals living in the country once every 10 years. This data is used when drawing up the 435 congressional districts and when determining each state's vote in the Electoral College that decides presidential elections.

Michigan Rep. Candice Miller wants to change that so that both legal and illegal aliens would be excluded.

From Rep. Miller's statement:

"Every 10 years the census determines the number of Congressional districts allocated to each state. If we continue to include illegal aliens in that count, we'll allow others to steal the Congressional voice of American citizens. This is about fundamental fairness and the American ideal of `One Man; One Vote.'"

"A district which has tens or hundreds of thousands of illegal immigrants dilutes the voice of citizens in other areas of the nation and enhances that of those who live in such areas," Rep. Miller continued. "In my opinion, that is simply not fair."

Why should anyone be concerned with providing representation to non-citizens? They already have representation - from their embassies.

Supporters of the amendment argue that the presence of non-citizens caused nine seats in the House to change hands between states in 2000.

California gained six seats it would not have otherwise had, while Texas, New York and Florida each gained one seat. Meanwhile, Indiana, Michigan, Mississippi, Oklahoma, Pennsylvania and Wisconsin each lost a seat and Montana, Kentucky and Utah each failed to receive a seat they would otherwise have gained...

According to Clark Bensen of Polidata, a Virginia firm which [analyzes] demographic information, excluding non-citizens would have boosted President George W. Bush's margin of victory in the Electoral College from 4 to 12 votes in the disputed 2000 election and from 34 to 42 in 2004.

President Bush would not have even needed to win Ohio in 2004

As the major beneficiary of skewed apportionment, Democrats will oppose the plan. So does a confused former Census bureaucrat:

"The Census Bureau cannot become a quasi-investigatory agency and still perform its basic responsibilities as a statistical agency," said Kenneth Prewitt who headed the agency from 1998 to 2000 and oversaw the last national census.

The basic responsibility of the Census Bureau is to conduct the Census - the Constitutionally mandated decennial enumeration of the population - not to assemble a vast collection of statistics of questionable usefulness. Besides, it's a check-box, not an interrogation.

"Lawful members of our society who pay income, property and sales taxes as well as for your and my Social Security, will ask why they are being denied the earliest and most basic right of our democracy -- political representation," Prewitt said.

Besides the fact that many are not lawful members of society, maybe Mr. Prewitt should explain how foreign nationals get political representation without voting. Why do the citizen neighbors of non-citizens have a right to disproportionate representation? (The tax question is complicated, and not all that relevant, as you can see here.)

And for the most idiotic comment of the day:

Lawrence Gonzalez of the National Association of Latino Elected and Appointed Officials said the proposal harked back to the days before the abolition of slavery when blacks were only counted as three fifths of a person.

The similarity here isn't what Mr. Gonzalez thinks. Three fifths of black slaves were counted in apportioning Congressional seats, but slaves could not vote. This increased the (white) South's representation in Congress far beyond what it would have been if only citizens were counted. Counting all slaves as citizens for apportionment, but not voting, would have been even worse - granting even more disproportionate representation to the roughly two thirds of Southerners who were allowed to vote. (The South, of course, wanted all slaves to count, but not to vote.) The post-Civil War amendments that now govern Congressional apportionment and voting were written to fully count and give voting rights to former slaves, not to address the problems of illegal immigration or to create Congressional seats to represent foreign nationals.

Aliens, whether legal or illegal, are not and should not be represented in Congress. They cannot vote and their presence is simply used to skew the political map in favor of their voting neighbors. If "representation" of foreign nationals is so important, why don't we just have the Mexican ambassador appoint those six Congressmen from California? Foreign nationals are represented by their ambassadors - and that's a lot more representation than most Americans get.