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Vt. is sued over phone tracking

ACLU was denied request for records

By John Curran
Associated Press / March 17, 2010

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MONTPELIER — The ACLU of Vermont is suing the state after unsuccessfully seeking to find out whether police agencies are using cellphone tracking technology to keep tabs on people’s whereabouts.

The state attorney general’s office refused public records requests by the ACLU seeking information about the practice, saying that information is exempt from public records statutes.

So the ACLU filed suit Monday in Washington Superior Court, asking a judge to force the state to produce documents under the Public Records Act.

“The attorney general’s behavior here is a real breach of trust,’’ said Allen Gilbert, executive director. “The Public Records Act specifically requires public agencies to explain the factual basis for denying a request.’’

The state hasn’t filed its response yet. But in an interview Tuesday, Attorney General William Sorrell defended law enforcement use of triangulation — technology that uses cellphone tower signals to narrow a person’s location to within a few miles — or data from cellphone records.

But he said details of it fall under Public Records Act exemptions dealing with ongoing criminal investigations, which are not releasable public records.

“We have legal requirements and prohibitions under which we have to live, and we take those seriously,’’ said Sorrell. Referring to cellphone tracking of individuals, he said: “It’s an appropriate investigative tool and I’m certain it has been used in Vermont.’’

Fearful that the information could be used the wrong way, privacy advocates nationally have zeroed in on the government’s practice of using information gathered from a cellphone or cellphone records.

Police often seek cellphone location data from phone companies, sometimes without notifying the person. One issue is whether investigators need probable cause to get permission to obtain the information.

“The location information can reveal very personal data, like where they shop, whose houses they visit, churches they attend, therapists they see,’’ said Mariko Hirose, an ACLU legal fellow in New York. “We think this information can reveal a very detailed picture of a person’s life, and it’s the type of personal information that’s designed to be protected by the Fourth Amendment.’’

In the Vermont case, the ACLU sought records — paper or electronic — regarding requests for cellphone location data made by the attorney general’s office to any court since Jan. 1, 2008.

The office denied the request, but didn’t say why.

When asked if police in Vermont obtain cellphone data to track individuals’ movements without getting search warrants first, Sorrell said: “If I was aware of Vermont law enforcement — in cellphone usage, records or other matters — violating Vermonters’ constitutional rights, I’d do something about it.’’

Burlington Police Chief Michael Schirling said that his department uses “a variety of technologies in a variety of ways, and we do not disclose details of the technology we use, other than to say it’s with judicial review.’’

Said Montpelier Police Chief Anthony Facos: “Anything that our department does, or operations we participate with, we do follow constitutional and legal requirements, as stated in federal case law.’’ When asked if his department uses cellphone tracking data, he said: “Right now, I’m just not going to say.’’

A State Police spokeswoman, Sergeant Tara Thomas, said State Police obtain court permission before obtaining cellphone data, except in emergency circumstances — such as a missing person case, when time is critical — and then investigators provide information about the circumstances to the cellphone provider.