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Cell Phones Surveillance and the Monitoring of Everyday Life

Today the United States has at least 130 million cell phone users. all are subject to increasingly precise tracking with cell phone surveillance technology. The infrastructure that supports such tracking has evolved rapidly through a series of technical, legal, and political mutations, all stemming from the choices of highly interested actors. The resulting configuration of laws, networks, and corporate interests determines who is able to use the phone system to gather information about the mobility, not only of individuals, but of the population as a whole.

It is worth taking a hard look at how those choices were made, and who gained and who lost from them.

IT HAS ALWAYS been technically necessary to locate mobile phones. The phone company has to know where you are in order to route calls to you. Whenever your cell phone is on, it's emitting little "I am here" signals. The nearest cell tower picks up these signals and informs the network where to send incoming calls. At this stage, though, the locational information is rather vague. It only locates you as being somewhere in the range of a particular tower-perhaps an area of several square miles.

At first, only the phone company had access to that locational information. But in 1994, Congress passed the Communications Assistance for Law Enforcement Act (CALEA), requiring phone companies to share the locational information, in real time, with police agencies, upon subpoena or court order. This is one way that surveillance infrastructures grow-once one organization has information for a particular purpose, other organizations try to get access to that information for their own purposes. This pattern by which systems developed for one purpose by one set of players subsequently become platforms for quite different interests-a process known as "function creep"-has wrought stunning changes over the past ten years.

CALEA requires phone companies to deliver location only as precisely as they have on hand, that is, to the nearest cell tower. But other federal action has instigated a massive overhaul of the mobile phone locational system to make the information it produces extremely precise and instantly available. In the 1990s, the FCC and Congress together mandated that the mobile phone system become fully integrated with the 9-1-1 system. These mandates have been the driving force in a huge reconfiguration and extension of cell phone surveillance capacity. To understand the shape of that reconfiguration, it's necessary to know a bit about how the 9-1-1 system works.

Originally, 9-1-1 was a dedicated number and a specialized routing system delivering emergency calls directly to an emergency operator. When you dialed 9-1-1, the phone system recognized it as an emergency call and automatically routed your call to that operator, who then routed the call to a police or fire department. This system was later upgraded to include the equivalent of caller-ID, so the operator would automatically receive the caller's number along with the voice call. The operator could then look up that number in a database to find the service address of that phone and so direct the emergency services to the correct location. This system of Automatic Number Identification/Automatic Location Identification (ANI/ALI) became standard throughout North America in the early 1990s. It was developed when wired local service, operated by former Bell monopolies, was overwhelmingly the norm, and it was operated by those local companies as part of their public service responsibility.

No sooner had the ANI/ALI system become firmly entrenched than several factors made it unworkable. First, there was the advent of competition in local telephone service. Now, not only the local Bell monopoly, but all of the newly competing local phone companies had to update the ANI/ALI database with information from their service records. Because that database was operated by their main competitor-the local Bell company-new phone companies were understandably hesitant to provide it with the addresses of all their clients. In many cases, local regulators resolved this conflict by contracting out the management of the ANI/ALI database to independent third parties. Thus a new set of players and new infrastructures joined the picture-profitmaking organizations, separate from the phone companies but intimately connected with them, whose primary business was to collect and distribute locational information.

The increased popularity of mobile telephones also complicated the 9-1-1 system. Operators who received emergency calls from cell phones had no idea where to send the responders. As a result, the FCC and Congress mandated that mobile phone operators find a way to determine the latitude and longitude of emergency calls to within about 125 meters, and to deliver that information, along with the voice call itself, to the appropriate emergency operator.

Complying with this mandate has not been simple. First, no one really knew how to locate a cell phone call that precisely. Eventually, mobile phone companies contracted with third-party location services to pinpoint those calls. So another part of the infrastructure developed-businesses whose primary purpose is to locate phone calls. Again, these businesses are separate from, but intimately connected with, the phone companies.

WIRELESS 9-1-1 cell phone surveillance use has also triggered far-reaching changes in ANI/ALI. That database had been relatively static-it needed to be updated only when a new phone was installed or an existing phone removed. With mobile phones, the database needed to become dynamic-updated at the time of the emergency call in order to reflect the caller's current position. The quality of the data had to change, too. Addresses were no longer considered adequate; instead, the database had to include the caller's latitude and longitude. It also had to be linked to routing software that determined which local emergency operator should field a call from a particular latitude and longitude.

Taken together, changes invisible to ordinary citizens have moved us into a world where all mobile phone users are potentially subject to precise cell phone surveillance monitoring. Specialized location cell phone surveillancesystems pinpoint calls. Specialized database systems collect and distribute that data. Specialized routing systems determine where to send calls from particular locations. Specialized decision software determines how to respond to calls. all of these cell phone surveillance systems are designed to be adaptable as emergency calls start coming from handheld computers rather than cell phones, or as calls arrive through the Internet rather than through the telephone network. They are designed to be able to link to various databases and distribute that information (medical histories, for example) along with the emergency call.

For the most part, these cell phone surveillance systems are operated by private companies. Yet they have been developed with public money. The FCC, in mandating these upgrades, also permitted phone companies to assess surcharges to pay for them. Everyone with phone service pays for the 9-1-1 service. In effect, then, what has developed in the United States in the past decade is a publicly funded, privately operated, generic, adaptable, and pervasive cell phone surveillance infrastructure.

By this point, all sorts of new players have emerged. Private ownership and the profit motive create pressures to extend these capabilities to other than emergency service. For example, wireless carriers are exploring the possibilities of linking data generated by the cell phone surveillance systems described above on phone users' location and movements to commercially developed marketing data on users' social characteristics and purchasing patterns. Think of the possibilities: when certain trigger conditions are met-when the right sort of person appears in the right sort of region at the right sort of time-the carrier could deliver an advertiser's message to the user. Nearing a Pizza Hut, one could find one's cell phone ringing with a recorded ad suggesting that a snack is waiting at the next fork in the road. If this sounds like the stuff of science fiction, consider this statement from the developer of a location-based marketing service:

Think of [our service] as a local market, a one-mile circle of energy around a potential customer, which moves with him or her, providing local information that fits individual needs. This information is dynamic and controlled by the merchants, communities and establishments in that radius. ("Going Local," Adiveek, 2003)

Thus what began as a series of technological and managerial changes in the name of efficiency has mutated into the possibility of using cell phone surveillance in the commercializing of an entire medium.

COMMERCIAL INTERESTS are not alone in their desire to exploit the new cell phone surveillance possibilities. Police and national security agencies increasingly seek to use the vast amounts of locational data generated by emergency calls, not simply to respond to particular callers, but to trace patterns of normal and aberrant behavior. For example, some regional call centers share the cell phone surveillance locational data from medical emergency calls with third parties. Those third parties then analyze that locational data to look for patterns suggesting an epidemic or bioterrorism. This is another type of function creep-a system initially intended to respond to individual emergencies has become used in wholesale surveillance.

This drift is hardly accidental or unguided. Various laws affect the way that the cell phone surveillance infrastructure is used. According to those laws, there is no opt-out from location during 9-1-1 calls. Every emergency call must be automatically located, but the location information generated in such calls can only be used to provide emergency services. Further, locational data generated through cell phone surveillance during non-emergency phone calls can be used for purposes other than call delivery only with the caller's express prior consent. Yet even those relatively stringent protections permit the uses of the infrastructure to migrate.

First, although phone companies can only use cell phone surveillance locational information with the user's consent, the FCC has declined to rule, and no court has decided, exactly what constitutes "express prior consent," or, for that matter, what constitutes "locational information." Some carriers have asserted that the location of the cell tower handling the call is not "locational information." These practices are likely to be adjudicated in the courts, which have previously held for very lax definitions of "consent."

Second, althoughcell phone surveillance emergency call data can only be used in order to respond to emergencies, it is unclear what constitutes an emergency or who decides that an emergency exists. As mentioned above, emergency calls are being monitored and analyzed for signs of bioterrorism. The operators of emergency response organizations thus have accepted that pattern analysis fits the definition of "emergency services." Such developments become truly frightening when we consider, first, that local emergency response is becoming more and more centralized under the auspices of the Department of Homeland security and second, that the federal administration considers the nation to be constantly in a state of emergency, devoting huge administrative and monetary resources to pre-emptive identification of suspicious persons or conditions.

For example, initiatives such as Total Information Awareness (TIA) (now strategically renamed "Terrorism Information Awareness") and the Computer Aided Passenger Profiling System (CAPPS) are intended to churn huge amounts of personal data in order to find patterns of normalcy and deviance. After those patterns are established, they are used to profile individuals and assign them a certain risk level. JetBlue Airlines recently transferred to a Department of Defense contractor over a million passenger travel records, which the contractor then merged with other public and private databases records and subjected to statistical analysis. Particular individuals, though unnamed, were isolated as exemplifying specific levels of threat. All of this was, apparently, perfectly legal, except that it was in violation of JetBlue's published privacy policy. So the formal complaints against JetBlue to the Federal Trade Commission charge deceptive advertising, rather than privacy violations.

TIA and CAPPS do not use the 9-1-1 infrastructure; they do not yet even use locational data as such. However, the administration has indicated its willingness to press privacy laws to their limits in this effort, and those limits are expansive. Locational information is subject to stricter privacy regulations than airline travel data, but those regulations can be changed and reinterpreted. Imagine what a resourceful and determined authoritarian regime could do with such data!

Pattern-analysis applications such as TIA, CAPPS, and bioterrorism alerts aren't actually interested in any particular individual. They are intended only to establish norms and patterns across the population against which particular individuals or situations can later be compared. But, of course, locational records also provide a huge resource in constructing dossiers and histories of individuals. During normal operations, the cell phone surveillance system generates and records locational information for billing and maintenance purposes. Currently, these records are generally accurate only to the location of the cell tower handling each call. But as more services are offered, more numerous and more precise cell phone surveillance locational databases will proliferate. The information in them will be available to police agencies. Complex legal standards apply to the level of review and judicial oversight necessary before police can obtain the warrants, subpoenas, or court orders required to compel disclosure of these cell phone surveillance records. Arcane though those regulations are, there is an unmistakable trend toward lowering barriers to police access.

No DEVELOPMENT more dramatically illustrates this trend than the USA Patriot Act of 2001. This act relaxed standards promulgated under the earlier Electronic Communications Privacy Act. Specifically, it permitted Internet service providers (ISPs) "voluntarily" to disclose customer records to government agents if the ISP believes a crime is being committed. It also required police only to assert that the records are "relevant and material to an ongoing criminal investigation" before obtaining a court order requiring disclosure by the ISP. Moreover, if the police believe that they may, eventually, want to subpoena an ISP's records, they can order the ISP to maintain records of customer transactions for up to three months, while they convince a court to issue the subpoena.

These provisions apply only to ISPs, not to telecommunications carriers. Nevertheless, they are ominous for two reasons. First, locational information initially generated by a wireless telecommunication provider may be disclosed to a series of third-party information service providers. This would certainly be the case if the user subscribed to location-based services offering, for example, maps, directions, and local guides. Once data have been "voluntarily" released to the ISP, they are subject to less stringent control.

Second, laws and regulations governing police surveillance are justified by reference to standard industry practice. Federal law, FCC rulings, and legal decisions all make it relatively easy for police to request information that is "reasonably available" or "accessible" to the telecommunications provider. Once a type of information has been deemed to be "reasonably accessible" under certain technological and industrial configurations, police agencies have successfully promulgated mandates to require that information to remain available, even as those configurations change.

For example, the Federal Bureau of Investigation was a strong supporter of CALEA, which required carriers to make the location of wireless calls via cell phone surveillance available to law enforcement in real time under subpoena or court order. At the time of its enactment, CALEA required specific technical changes to the telecommunications system. These changes were justified in part by the claim that since the address of wired telephones had always been available under similar orders, then, in order to maintain the status quo, the location of wireless phones should also be available. But in fact the legal availability of the address of wired lines was initially justified by the technical "accessibility" to the phone company of its own service records. So we have a circular argument justifying a spiral of cell phone surveillance: the address of wired lines was "reasonably accessible" to phone companies, so phone companies were required to make that data available to the police. Because the location of wired phones was legally accessible to police, then the cell phone surveillance data should be available as well, even if that meant changing the phone system in order to make that information "readily available."

STEADILY BUT QUIETLY, publicly funded initiatives to modernize the 9-1-1 system have spurred development of an infrastructure of cell phone surveillance. That infrastructure includes

* the capacity for wireless carriers to locate callers quickly and closely

* privately operated databases linking phone numbers to their current location

* intelligent networks that transfer calls and data based on the locations of particular callers

* sophisticated software that suggests responses based on the attributes of a particular individual in a particular location during a particular situation at a particular time

In part because that cell phone surveillance infrastructure was developed under a policy of telecommunications deregulation and competition, it is privately owned, segmented, modular, standardized, and generic. Because it is privately owned and generic, its operators have great motivation to expand its usage beyond emergency service provision into markets for other location-based services. Because it is a wellspring of data, police and national security agencies are eager to tap it for surveillance of populations in general and individuals in particular. Some laws restrict the ways in which state and corporate interests are able to pursue their interests, but the infrastructure itself is a profound resource.

Because that resource was created and is supported with public funds, it is the object of legitimate public interest and intervention. That interest has so far been addressed by attention to privacy protection regarding the cell phone surveillance data generated and stored within the infrastructure. I suggest that that frame is inadequate for understanding or responding to the issues raised by this new configuration ol information and knowledge.

Privacy is inadequate, first, because it presumes harm to specific individuals. Surveillance instead addresses the construction of demographic groups or risk categories. Surveillance involves the shaping of social relations, the creation of social knowledge. When marketers crow that they are now able to serve appropriate ads to appropriate persons as they travel through particular regions, we should ask not only whose privacy is being threatened, but who decides which ads are appropriate for which persons? To what end are those prescriptions made? Who is constructing the social landscape in which and through which we live?

Instead of focusing solely on cell phone surveillance and privacy, activists must look at a broader canvas and work with a broader palette of possible interventions. The locational infrastructure being developed in the United States is, or should be, a public infrastructure. It is being created by public mandate and supported by public funding. Policy responses toward that infrastructure should be explored in at least two directions. First, can the entire infrastructure, not merely the data within it, be restricted to public safety purposes, and can the parameters of that use be democratically determined? The 9-1-1 cell phone surveillance system is clearly of profound social benefit. Personally, I am relieved to believe that, should my car overturn on a country road, medical personnel will be dispatched appropriately. I'm less sanguine, though, about the possibility that my commuter route will be "appropriately" developed according to the needs of global corporations, or that roadblocks will be "appropriately" placed along it to intercept potential terrorists.

Second, can the infrastructure be made truly public? Can the databases and data-mining cell phone surveillance software be made available equitably, not only to those with subpoena or market power, but to those who nevertheless have a political and moral stake in the constructive activities that those databases facilitate? Can we establish some kind of frame that acknowledges them as public resources and the spaces they mediate as public spaces?

The shape of these emerging infrastructures is not pre-ordained. It is the product of human activity. We have today the infrastructure we made in the past, and we will have tomorrow the infrastructure we are making today. We must make these "makings" visible and accessible, and we must engage in them with foresight and sophistication.

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