What Info Can Uncle Sam Dig Up About You?

Sept. 9, 2010— -- Got any secrets you're hiding from Uncle Sam?

The answer had better be no, because in the digital age, your life is more of an open book than ever before.

Cell phones, computers, GPS devices and other technological wonders may make our lives easier, but they also make them far more transparent.

The Constitution affords some protection, and Congress has passed laws surrounding electronic communication and surveillance. But privacy advocates say those laws desperately need to be updated.

"What's great about the digital revolution? Well, all of this information is readily accessible and easy to manipulate and easy to search and inexpensive to store," said Jim Dempsey, vice president of public policy for the Center for Democracy and Technology. "So what that means is that it's also extremely easy for the government to get access to it, and the government does."

Want to find out just how easy it is for the government to access your information? Take a look at a few examples below.

Court Rules on Locating People With GPS, Cell Phone Tower Information

Cell Phone Location Tracking

That cell phone in your hand may give you directions to any place under the sun, but it also can give law enforcement officials directions to you.

Using GPS data or by figuring out which cell phone towers your phone is connecting to, it's technically very easy to determine your location. Cell service providers not only store records of your location history, they also can track you in real-time.

The only thing that could protect your location privacy is the law. And privacy experts say the law isn't quite sure where it stands.

"The law regarding when the government can track a person without a warrant is extremely confused right now," said Catherine Crump, a staff attorney for the ACLU.

Earlier this week, the U.S. Court of Appeals for the Third Circuit in Philadelphia said that judges can require law enforcement to show probable cause for tracking cell phones, but they don't need to require it.

Some took the half-empty perspective that this means that law enforcement doesn't need a warrant to track your phone. Others took a more positive view and said it encourages judges to look more closely at surveillance requests, which ultimately could mean more protection for individuals' rights.

Privacy Advocates: Congress Needs to Act on Electronic Surveillance

Crump saw the decision in the more optimistic light, but said the circumstances under which you can be tracked vary state by state. In Washington, Oregon and New York, for example, law enforcement needs a warrant to track. But that protection isn't as clear in other states, she said.

Some speculate that the Supreme Court will step in to settle the dispute, but she emphasized that what's clear is that it's time for Congress to weigh in.

"Congress has not updated electronic surveillance laws in any meaningful way since 1986, when cell phones were as big as your head and no one was thinking about how decades in the future these laws are going to apply to tracking," Crump said. "It's time for Congress to really grapple with this question and provide some real privacy protections for people."

GPS Tracking

So whether the feds can track you with your phone is up in the air, but what about tracking you with a GPS device?

Last week, a decision by a federal appeals court in California allowed law enforcement officers to secretly place GPS trackers under individuals' cars parked in private driveways without a warrant.

The judges with the Ninth Circuit court ruled against an appeal by a defendant interested in suppressing evidence gathered by officers who secretly attached a GPS device to his car without obtaining a warrant. The decision basically gave law enforcement officials in the nine Western states covered by the court the power to track individuals by GPS without probable cause, ComputerWorld reported.

But Chris Calabrese, legislative counsel for the ACLU, said the U.S. Court of Appeals for the District of Columbia Circuit ruled in the opposite direction on a very similar case in early August.

The D.C. court said that GPS tracking like that would violate the Fourth Amendment, which protects people against unreasonable searches and seizures, he said.

"The difference is in California, the court took the view that any time you move around in a public space you don't have an expectation of privacy," he said, "while the D.C. circuit said that there's a big difference between someone seeing you casually in public and the tracking and recording of your every movement over an entire month."

The California decision was not unanimous and some expect the case to go on to the Supreme Court.

In the dissenting opinion, Chief Judge Alex Kozinkski said, "1984 may have come a bit later than predicted, but it's here at last.

Bank, Medical, Tax Records Not Protected

Electronic Records

The thousands of e-mail messages living in your Gmail or Yahoo account also are fair game for the government.

In the 1800s, the Supreme Court ruled that traditional snail mail is protected by the Constitution, but that protection doesn't necessarily apply to electronic mail, the Center for Democray and Technology's Dempsey said.

"The government takes the position that all of the e-mail that you store -- in Gmail, Hotmail ... all of that falls outside the Constitution's protection and is available to the government without a warrant," he said.

The position dates back to the 1970s, when the Supreme Court ruled that records you give to a third party, including bank records, medical records, tax records and more, are not protected.

"You have zero constitutional privacy interests in records that you voluntarily disclose to a third party," he said.

Once an e-mail is stored in draft form or sent to a recipient, it's considered unprotected because you essentially had to turn it over to a third-party service to communicate it.

Dempsey said the same principle applies to text messages, wall postings on Facebook and other messages sent via third-party services, regardless of whether they're sent from smart phone or computer.

But though records stored in the so-called "cloud" by third parties are not protected, he said, records stored on your hard drive are protected by the Constitution.

"If the government wants to get your computer, your laptop, they do need a warrant, just like on "Law & Order," he said.

Telephone Correspondence

When it comes to technology-enable correspondence, your telephone conversations may provide your one last pocket of privacy.

As we know from endless movies and TV shows, it's technically possible to wiretap a telephone call and eavesdrop on a conversation, but Calabrese said telephone calls are protected by the Fourth Amendment and law enforcement officials have to meet a high standard to obtain a warrant.

"To wiretap a phone -- any phone -- requires a super warrant," he said.

Officials don't just need to prove probable cause, they need to show that they've tried getting information through other means and overcome other hurdles, he said.