Subject: [NEXTEL-1] Cell Phones, Surveillance, and the State: Monitoring Daily Life

From: [email-masked]
Date: Mon, 10 May 2004 00:59:00 -0400

Cell Phones, Surveillance, and the State: Monitoring Daily Life
Source: Dissent
Publication date: 2004-04-01
Arrival time: 2004-05-09

EVERY DAY, we are identified, monitored, and tracked. Supermarket
loyalty cards record our purchases, online data collectors record our
mouse clicks, airlines record our travels. These records of our
activities are analyzed to create statistical knowledge, and that
knowledge is used to construct the world we live in and our place in
that world. New brands are created in response to newly discovered
market trends. Ad campaigns are designed with a specific demographic in
mind, and the ads are delivered only to those individuals who fit the
demographic. "Normal" travel patterns are discovered, and deviants from
that normalcy are subjected to greater scrutiny at the airport. These
practices raise issues of personal privacy, in that they make each
individual's actions visible. They also raise issues of discrimination
because the practices are primarily about the creation and differential
treatment of social groups. More important, though, they are issues of
knowledge and power. Who, in our society, has information about others,
about the world, and how do they use that knowledge?

Some argue that increased surveillance is the inevitable result of
galloping strides in computing and communication technologies and that
we, as individuals and as a society, have only the power to succumb. As
Scott McNeally, CEO of Sun Microsystems, famously said, "You have zero
privacy now-get over it." But this view glosses over the point: systems
of surveillance, like all technologies, are created by human actors,
operating with specific goals, with specific resources, and in specific
historical contexts. We can consider one salient example: the systems
that today make it possible to locate and track mobile phone users. We
can see where it came from, what actions brought it about, by whom and
in what historical conditions. We can show how the resulting
infrastructure mediates social power, and how activists can intervene in
the process.

Today the United States has at least 130 million cell phone users. all
are subject to increasingly precise tracking. 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 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 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 monitoring. Specialized location systems 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 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 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
surveillance infrastructure.

By this point, all sorts of new players have emerged. Private ownership
and the profit motive create pressures to extendthese capabilities to
other than emergency service. For example, wireless carriers are
exploring the possibilities oi linking data generated by the 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
commercializing an entire medium.

COMMERCIAL INTERESTS are not alone in their desire to exploit these new
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 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 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 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 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, although 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 mobile phone 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 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 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 be lieve 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
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 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 location of wireless phones
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 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 th\at 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 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 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 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 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 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.

DAVID J. PHILLIPS is assistant professor of radiotelevision-film at the
University of Texas at Austin, where he studies the development of
surveillance infrastructures.

http://cnniw.yellowbrix.com/pages/cnniw/Story.nsp?story_id=50878196&ID=cnniw&scategory=Telecommunications%3AWireless&

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