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Deputy Assistant Attorney General Richard Downing Testifies before House Oversight and Government Reform Committee at Hearing on Geolocation Technology and Privacy

Testimony as prepared for delivery

Good morning, Chairman [Jason] Chaffetz, Ranking Member [Elijah] Cummings and members of the committee. Thank you for the opportunity to appear before you today.

I'd like to begin with a case example. A United States District Court Judge in Jacksonville, Florida, was sitting in his living room one night. A shot from a high-powered rifle shattered his window. He was injured, but thankfully the bullet did not hit him. The police had no eyewitnesses and a very large pool of suspects, including many litigants and defendants who had appeared before the judge. What did the investigators do? Among other things, they applied for court orders to obtain the cell tower records of the phones of some possible suspects. Those records provided a general idea of the location of the phones. This information advanced the investigation and allowed agents to exclude certain innocent people and pursue leads that eventually led to the arrest of the alleged shooter.

This case is just one example of the importance of location information to a wide variety of criminal investigations.

I should emphasize, however, there is no single kind of "geolocation information." Location information can differ in precision - everything from what the country the phone is in, to precise GPS measurements of latitude and longitude. Sometimes, companies generate location information for their own business purposes. Other times, law enforcement may gather the information directly. Sometimes it is generated continuously as a phone moves around. Other times, only when certain events happen, like when the user places a call.

The department recognizes the importance of considering individual privacy interests when obtaining different types of location information. At the same time, location information plays an important and sometimes pivotal role in our efforts to protect public safety and seek justice. And it is important to recognize that different kinds of location information implicate different privacy concerns.

In the time that I have, it would be impossible to discuss in detail all of the varying types of location information. I would like to mention two types: first, cell site information. Second, information collected by cell site simulators.

I recognize that these two types of information have confusingly similar names - cell site information is generated by the cellular phone companies. A cell site simulator is equipment operated directly by law enforcement officers.

Cell-site information consists of business records that wireless carriers routinely collect and maintain as part of providing cellular service. These records identify the towers - and sometimes the face of those towers - handling communications with a particular device. While not providing pinpoint accuracy, the fact that a tower handled communications with a phone can give an idea of the location of the phone at the time that the communication occurred.

Providers collect and maintain cell site records for their own business purposes, such as to repair and improve their networks. This data is collected only periodically - when calls and other communications occur - not continually. Courts have held that historical cell-site information may be obtained based on a court order under the Electronic Communications Privacy Act. This provision requires the court to find that the government has provided "specific and articulable facts" - a showing that is substantial, but not quite at the level of probable cause.

Historical cell site information can play a critical role at the outset of an investigation, when there is not sufficient evidence yet to satisfy a probable cause standard - such as in the shooting case I mentioned earlier.

I'd like to turn now to cell site simulators - the equipment owned and operated by police officers. A cell site simulator collects a limited set of signaling information - not the content of communications - from cellular devices in the vicinity of the simulator. It can be used to figure out the location of a suspect's phone.

The department recognizes that the collection of precise location information in real time implicates different privacy interests than less precise information generated by a provider for its business purposes. That is why, in September 2015, the department issued a new policy governing use of cell-site simulators in domestic criminal investigations. Under the policy, law enforcement agents now are generally required to obtain a search warrant supported by probable cause before using such a device.

In conclusion, I'd like to emphasize that the department is dedicated to ensuring that its policies and practices comply with the law and promote the privacy and civil liberties of individuals while we fulfill our mission to protect public safety and seek justice.

Thank you, and I look forward to answering your questions.

[Source: DOJ, Criminal Division, Washington, DC, 02Mar16]

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small logoThis document has been published on 27May16 by the Equipo Nizkor and Derechos Human Rights. In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.