Something really interesting has come out of the USA v. Pen Register case. It turns out the government has admitted for the first time using the All Writs Act to conduct real-time surveillance on people.

Currently, the government routinely applies for and upon a showing of relevance to an ongoing investigation receives “hotwatchâ€? orders issued pursuant to the All Writs Act. Such orders direct a credit card issuer to disclose to law enforcement each subsequent credit card transaction effected by a subject of investigation immediately after the issuer records that transaction. — Government Reply to EFF Brief (PDF)

Now the government wants to use this act to conduct real-time location tracking of people using their own cell phones.

First, one thing you should be aware of, because most people aren’t. Your nice GPS-enabled cell phone won’t tell you where you are, but it will tell your wireless carrier — and the government — even when you aren’t using it, and even if you’ve “disabled” the function.

So, without even having to show probable cause, the government can find out where you are at any time, just by filing one of these All Writs Act requests.

This is starting to remind me of the writs of assistance that the Crown used frequently against the American colonists, a contributing factor to the American revolution. The writs of assistance allowed authorities to conduct a search of just about anywhere without showing cause. Sound familiar?

Fortunately, the EFF is fighting this stupidity.

The All Writs Act should not become the All Surveillance Act. As the Supreme Court has acknowledged, the Act was only intended to be a residual authority to issue writs that are not otherwise covered by statute, but the Act does not authorize courts to issue ad hoc writs whenever compliance with statutory procedures appears inconvenient or less appropriate. It’s high time for courts to scale back this pernicious use of the All Writs Act and help carve out a future in which we would want to live. — Electronic Frontier Foundation

Oh, and about those credit cards, how did you think the government was doing it? They weren’t getting search warrants! No probable cause required, no nothing, just walk up to the judge and say “Hey, we need to track this guy’s credit card.” The judge, of course, says “Sure!” without a second thought. This makes a complete mockery of our justice system.