Why would the well-heeled suburb of Gilbert, Ariz., spend a quarter of a million dollars on a futuristic spy gadget that sounds more at home in a prime-time drama than a local police department?

The ACLU caused a stir Monday with its extensive report of cellphone surveillance by local police departments, which routinely request location information and other data from cellphone providers, often under vague legal circumstances.

But one bit of information provided by Gilbert officials suggests that cops sometimes try to cut out the middle man. Buried in the 380 public records requests sent by the ACLU is a response from Gilbert which indicates that the town purchased a device that allows it to track cellphones on its own for $244,195.

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"The Gilbert Police Department obtained a $150,000 grant from the State Homeland Security Program," the agency wrote to the ACLU in response to a public records request. "These funds, along with $94,195 of R.I.C.O monies, were used to purchase cell phone tracking equipment in June 2008 (total acquisition cost of $244, 195)."

 

Gilbert didn't offer additional details about the device to the ACLU, and Chief of Police Tim Dorn didn't immediately respond to requests for comment.

But several surveillance experts said the device sounds like a gadget that's sometimes called a stingray.  

The stingray, made by Harris Wireless Products Group of Melbourne, Fla., lets users set up what amounts to a fake cellphone tower and trick all phones nearby into connecting with it. That data can then be used to track the physical location of anyone nearby carrying a powered-on cellphone -- even if the citizen isn’t on a phone call. A stingray can also register other data, such as the phone numbers dialed by all phones while connected to it. The device reportedly cannot record or intercept the content of a phone call, so it does not act like a wiretap.

Still, the stingray is at the heart of a hotly contested criminal case involving an identity thief named Daniel David Rigmaiden, who allegedly stole $4 million through a fake tax return scheme. Federal authorities used a stingray to find Rigmaiden in California in May 2008, then sent him to Arizona for trial.

Perhaps Gilbert was impressed with the result -- it says it acquired its device one month later.

In September 2011, a federal court in Arizona heard Rigmaiden's request to receive all details about the government's secretive use of the surveillance technology. Federal prosecutors are resisting disclosure because they say it will jeopardize use of the critical law enforcement technology in other cases.

Rigmaiden's case, as yet undecided, is largely seen as a test of the constitutionality of stingray and related police surveillance technologies. Would use of a stingray constitute a search, and thus require application for a time-consuming search warrant? Or do cellphone users give up their expectation of privacy by turning on a phone and carrying it in their pocket? The issues were discussed extensively in this recent Wall Street Journal story.

Use of a stingray-like device raises even thornier issues than cellphone records requests, said Catherine Crump, the lawyer who headed the ACLU project.

"I think when law enforcement starts purchasing technology that allows them to track cellphones in that manner, it raises a whole host of questions about how that technology is being used that are even more serious when they track people through carriers," Crump said. "At least when a carrier is involved, there's a third party that may raise concerns if the request is of questionable legality. But when a law enforcement agency can do on its own surveillance, that raises even more serious questions about whether there is appropriate oversight."

No other local police department that responded to the ACLU's public records requests mentioned purchase of a stingray-like device -- one other community mentioned borrowing such a gadget -- but Crump said that's because she didn't specifically ask about them.

"If I had to write the requests it over again, I would,” she said. “We didn’t realize how big an issue these devices were at the time. We know that there are others purchased by other agencies around the country, mainly from press reports."

The Miami police department, for example, asked Harris for a price quote in 2008. The firm's response is still on the city of Miami's website. A more extensive price list from Harris can be found at this website. 

A spokesman for Harris Wireless said the company didn't comment on clients' purchases and referred questions to Gilbert's Police Department.

The use of fake cellphone towers by law enforcement has caught on outside the U.S., too. Britain's Metropolitan Police, which serves the greater London area and is that nation's largest police force, began deploying similar technology provided by England-based Datong PLC last year, according to The Guardian. The disclosure began a round of debate about civil liberties in Britain.

Matt Blaze, a computer science professor at the University of Pennsylvania and an expert on stingray-like devices, said they are a mixed bag.

"Certainly these devices are powerful surveillance tools that, if misused, have the potential to be quite invasive against the privacy of innocent people," he said.  "But, then again, so do many other law enforcement investigative methods -- physical searches, hidden microphones, informants and so on. The question is how they are used, how often they are used and the oversight mechanisms in place to prevent and detect misuse."

Devices like stingrays are technologically limited in scope, however -- they can only monitor a limited physical area in real time -- so Blaze is less concerned about them than he is the revolving door of data between private companies and law enforcement.

"I'm less worried about law enforcement agencies with stingrays and other targeted surveillance gadgets than I am about location and other kinds of tracking through the carriers, especially when done without strong legal oversight or without probable cause," he said. "While I do worry about abuse of these kinds of electronic surveillance devices, the fact that they are inherently rather targeted in what they can collect acts as something of a built-in safeguard. I'm more concerned, in the long run, about large-scale surveillance capabilities being included in our communications infrastructure."

Still, privacy researcher Chris Soghoian – who has written extensively on law enforcement use of cellphone technology for surveillance – said police use of the stingray device is among the most troubling privacy developments in years. Some phone companies allow police officers to use a website to download customers’ GPS location data easily, “from the comfort of their own desks,” he said, and charge as little as $5 for the information. With phone company record access that easy and inexpensive, there’s no need for stingray, he argued.

“The real issue is that this device is about allowing police to perform surveillance when the phone company would say no,” said Soghoian, who is Graduate Fellow at the Center for Applied Cybersecurity Research at Indiana University. “This is not about saving time and money … it’s about the fact that there’s no one to insist that the law be followed when a stingray is used.”

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The "Universal Forensic Extraction Device" sounds like the perfect cell phone snooping gadget.

Its maker, Israel-based Cellbrite, says it can copy all the content in a cell phone --  including contacts, text messages, call history, and pictures --  within a few minutes.  Even deleted texts and other data can be restored by UFED 2.0, the latest version of the product, it says.

And it really is a universal tool. The firm says UFED works with 3,000 cell phone models, representing 95 percent of the handset market.  Coming soon, the firm says on its website: "Additional major breakthroughs, including comprehensive iPhone physical solution; Android physical support – allowing bypassing of user lock code, (Windows Phone) support, and much more."  For good measure, UFEC can extract information from GPS units in most cars.

The gadget isn't a stalker's dream; it's an evidence-gathering tool for law enforcement. Cellbrite claims it’s already in use in 60 countries.

That apparently includes the U.S. The American Civil Liberties Union in Michigan says it has learned that state police there have purchased some of the gadgets.  What is it doing with them? So far, Michigan authorities aren't telling. A public records request for information by the ACLU was met with a prohibitive $500,000 bill to cover the supposed cost of making the documents available.

"They did produce documents which confirmed that they have them," said Mark Fancher, a staff attorney at the ACLU office. "We have no idea what they are doing with them."

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 Technology and the Fourth Amendment have had a rocky relationship. When The Founding Fathers created protections against unlimited search and seizure, they never imagined the kind of tools that would be available to 21st century police officers.

Cell phone data is an indispensible tool in both investigations and prosecutions. A drug dealer's contact list is an obvious treasure trove. Location information stored in the phone can prove (or disprove) an alibi.  Texts are at least as valuable as emails. Increasingly, smartphone s are used as mini-laptops, placing even more ready-made evidence in one small package -- as long as law enforcement can get to it before it's destroyed. 

Because handsets are nearly always with suspects, it's easy for a would-be criminal to delete information during a traffic stop.  Remote wiping programs exist that mean critical evidence could be destroyed even after a police officer takes possession of a suspect's phone. That means law enforcement official s have great interest in slurping up all the secrets that a handset might contain as quickly as possible.  Enter Cellbrite.

But how fast is too fast?  Fancher and the ACLU argue that most cell phone searches  are an invasion of privacy that requires law enforcement officials to get a court order before rummaging through a suspect's handset data.  While UFED could be used after an order is obtained, its obvious focus is on time-critical searches -- those that would occur, for example, right after a "routine traffic stop."

"The Fourth Amendment protects citizens and allows them to have some confidence that law enforcement can't go in on a whim and take a look at most private details of our lives," said Fancher.  "Our concern is that the device can empty a cell phone within 90 seconds, offering law enforcement a powerful ability to intrude on and infringe on people’s rights."

Do cops need a court order to search the contents of a cell phone?  The law is still evolving, but at least one recent major decision chose police over privacy. The California Supreme Court recently issued a ruling that allowed police to use text message evidence they'd obtained without a court order. The ruling seemed to open the door to widespread use of warrantless cell phone searches in California.

But Fancher cautioned against generalizing too much from a single search-and-seizure case.

"They often involve a lot of nuance," he said.  "You really have to go case-by-case when searches are involved."

There are clear-cut cases where court orders wouldn't be required to search cell phones -- if police are in hot pursuit of a crime or have probable cause to believe that evidence is in immediate danger of being destroyed.  Such situations are exceptions, however, Fancher said. He's concerned that the easy-to-use gadgets in the hands of field officers would make cell phone searches the rule, rather the exception.

Cellbrite didn't immediately respond to a request for comment. On its website, the firm says it was founded in 1999 and was purchased by a Japanese company in 2007. Its data-slurping technology grew out of products it sells that are used to transfer contact information from old phones to a new phones at cell phone retailers.

The Michigan State Police did not respond to a request for comment.

Technology continues to throw major legal headaches at law enforcement officials and Fourth Amendment rights advocates. 

The U.S. Supreme Court is currently mulling a related issue involving the use of persistent GPS monitoring of suspects without a warrant.  In that case, the FBI placed a GPS monitoring device on a suspect's car without a warrant and then tracked his driving for driving weeks. The Department of Justice says the technique is akin to surveillance on public roads, but a federal appeals court ruled that such aggregation of movements over time constituted a Fourth Amendment violation. Because the ruling conflicts with other appeals court rulings in similar cases, the Department of Justice recently asked the Supreme Court to take the case and settle the matter.

Fancher said his quest for information about the cell phone data copying device from the Michigan State Police began in 2008. After receiving a $500,000 bill for records requests, along with a demand for a $250,000 down payment, the ACLU tried to narrow its requests to reach a more reasonable cost. It filed 70 FOIA requests last November, for example. But the method also proved fruitless.

"We have tried everything we know of to work with FOIA personnel to get the documents we seek and had no success, so we've taken the opportunity to go to the top and try to shake things loose," Fancher said.  On April 13, the ACLU sent a letter to State Police Director Kriste Etue, and made that letter public to the media.

"The ACLU should not have to go on a fishing expedition in order to discover whether the state police are violating the privacy of individuals through the use of new, sophisticated technology," the letter read.

The ACLUs real concern with the gadgets is that they will prove too tempting for state troopers, and abuses will occur.

"We're not accusing the state police of using them improperly.  It's not illegal or improper for them to have them," he said. "Our concern is, what are they doing to insure they are complying with constitutional requirements? ... We'd be interested, for example, in what kinds of supervision there is over their use."

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Google vs. China.  Facebook vs. Pakistan.  YouTube vs. Turkey.  Blackberry vs., well, half the world. If it seems like the Internet is under siege lately, that's because it is.  The cat-and-mouse game between government censors and communications technology is a lot like life along the San Andreas Fault. There are low level rumblings all the time, but every once in a while there's a tectonic shift. 

But why so many tremors and earthquakes lately? And is it a good idea for multinational, for-profit companies to be the standard-bearers for basic human rights like free speech?  Here are some answers.

It's been true since the beginning of organized society: Governments hate secrets. By nature, they cannot allow citizens or enemies to communicate in secrecy. That means every new communications technology is a potential threat. Chat rooms, e-mail, encryption, the Web, Twitter -- all have, one by one, come under assault from haters of secrets.

Now that smart phones have reached the masses, governments around the world are panicky. It's one thing to control citizens' use of e-mail from their bedrooms or cubicles -- in a place like Iran, there are only a few Internet pipes in and out of the country, so it's not hard to shut down the pipes or scan the data flowing through it for offensive or illegal content.  But Blackberry gadgets work differently. They let citizens walk around anywhere with tiny computers that can give users unfiltered access to everything on the Web and enable them to transmit their data with surveillance-busting encryption. If your job is to monitor citizens and keep order, this is an earthquake.

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"We do think that the mobile Internet is where the cat-and-mouse game will play out over the next few years, with the rise of smart phones and ubiquitous 3G connectivity," said Jim Cowie, chief technology officer of Renesys, a firm that analyses Web traffic. "That's especially true in emerging economies like the (United Arab Emirates), where mobile Internet growth is really exploding -- in many cases mobile Internet providers have leapfrogged fixed-line Internet providers."

Blackberry maker Research in Motion is in the cross-hairs now. On Monday, a ban in Saudi Arabia went into effect, though Blackberry's Messenger service appeared to continue to operate normally. Other bans are threatened in the U.A.E., Algeria, Lebanon, Indonesia and India. But censorship experts expect the battle eventually will affect all mobile Internet devices. That expected escalation alarms Clothilde Le Coz, U.S. director of free speech advocacy group Reporters Without Borders.

"Mobiles devices such as the Blackberry ones are one way to get … news, share news and comment on it. If even these devices are getting controlled and monitored by the governments, it is a bad sign for freedom of speech," Le Coz said.

On Thursday, Blackberry CEO Mike Lazaridis threw down the gauntlet, indicating he plans to pick a fight with Arab nations who try to limit his company's service.

"Everything on the Internet is encrypted," he told the Wall Street Journal. "This is not a BlackBerry-only issue. If they can't deal with the Internet, they should shut it off."

But privately, the company appears to be in active negotiations with governments in the region. Some of the compromises that have been floated would sound alarming to any free speech advocate's ears. A report in The Economic Times in India said Research in Motion offered to let the Indian government access user e-mail and promised to create a system that would allow monitoring of chats within six to eight months.

From an architecture standpoint, there's even more to be concerned about. While hand-held smart phones seem to imply great freedom of movement, they may ultimately be easier to control, Cowie said. Countries tend to have far fewer mobile providers than Internet service providers, as the wireless spectrum is highly regulated. That gives governments a lot of leverage in any censorship debate.

"This might make it a lot easier for governments to censor -- or to implement community-appropriate filtering -- depending on your spin," Cowie said. "There are typically fewer mobile providers in a given national Internet market because of licensing requirements. They have more tightly integrated control over the end user Internet experience."

Harvard Professor Jonathan Zittrain, who runs the censorship-fighting Web site Herdict.org, takes that argument one step farther. Now that Web users seem to be clustering around a few Web sites and service providers, censors' jobs are getting easier, he thinks. It's hard for governments to censor e-mails flowing in an out of from hundreds of Web mail services. It's much easier to censor all traffic in and out of Facebook.com.

"(It) could be a game changer, the re-emergence of more centralized umbrellas for activities on the Internet," he said.

Cell users are rebels
On the other hand, Cowie thinks mobile Internet users have already shown a disdain for control that will ultimately be the undoing of any attempts at censorship. Smart phone users, for example, have demonstrated their tendency toward rebellion.

"There was a time when mobile providers thought that they could create a 'walled garden' mobile Internet," he said. "They believed that users would be satisfied with a few kinds of well-tended content on their phones, served up from the provider's own online kiosks.  If the story had ended there, it would have been a government censor's dream -- complete integration of hardware, software, delivery infrastructure and content, in one manageable package.

'We're all geeks now'
 "However, mobile consumers have pretty clearly indicated that they reject that model. They want access to the entire Internet on their smart phone -- not just a small corner of it, but all their familiar sites and services. They want to be able to jailbreak their smart phones, have carrier choice … and generally have the same freedom to tinker that they have on their desktop. This was a somewhat unexpected outcome, but the masses have spoken. We're all geeks now." 

If Middle Eastern nations stick to their Blackberry bans, their motivations will remain hazy. Few observers take the claim of national security at face value, and it's possible the ban is aimed as much at halting teen-aged flirting as it is to preventing terrorism attacks. (Thanks, World Blog.)

What the United Arab Emirates has asked for isn't, on its face, much different from what the U.S. government regularly asks for, said Mark Rasch, former head of the U.S. Department of Justice computer crime unit. 

During the Clinton years, the federal government engaged in a protracted (and failed) battle to prevent the widespread use of encryption by Internet users. But federal investigators armed with court orders still use wiretaps and other technologies to regularly inspect e-mail, Web and mobile communications. And European nations have saddled Internet service providers with data retention requirements for the purpose of law enforcement investigations.

There is an important distinction, however, said Rasch, now a consultant with Secure IT Experts.

"What the UAE is asking for is not fundamentally different from what the U.S. government sometimes asks for," he said. "But while it may not be an unreasonable request, it may be an unreasonable government that is requesting it."

There are plenty of reasons not to trust foreign nations with the keys to inspect smart phone traffic. However flawed U.S. due process might be, most U.S. citizens would be considerably more uncomfortable with the idea that governments in the United Arab Emirates or India could read their Blackberry messages in real time, or months after they were sent.

Tala Dowlatshah, another spokeswoman for Reporters Without Borders, said it's important for consumers to realize that countries like the UAE are trying to have it both ways.

"In recent years, the UAE has implemented a  Draconian  policy toward its citizens concerning the free flow of information," she said. "Clearly the UAE believes in democracy and free markets when it comes to doing big business deals with the West. But when it comes to empowering its own citizens, that's when the country demonstrates how small minded it really is."

Google's lesson
But while human rights groups can call attention to the problem, at the moment, the job of fighting on the front lines of the censorship battle has really been left to companies like Google. The firm's well-publicized spat with China earlier this year set the standard for company vs. state censorship battles. Google had happily provided China with a scaled-down Web experience designed to prevent citizens from finding Web sites on controversial topics such as the Falun Gung or the Dalai Lama. But when a scandal erupted that suggested hackers sponsored by the Chinese government had raided Google's servers, the company flipped a switch and began sending Chinese users to its unfiltered Hong Kong site. China, in turn, threatened to kick Google out, a potential body blow to the company's Asian aspirations.

In the end, Google blinked, but only slightly. It went back to the filtered Chinese site, but added a link to the free Hong Kong site. That earthquake was over, even if the fault line along the China-Google border remains active.

Zittrain, who praised Google for confronting China, encourages tech companies to think about the big picture -- instead of next quarter's profits -- during censorship fights.

"It's helpful for corporations to realize they are representing interests and issues that go beyond their customers," he said. Standing up to censorship is the thing to do, he stressed, but it's also good business.

"In a place like China, if there is a regime change in 15 or 20 years, how might you be greeted if you stood up on principles? Or if you didn't?"

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Americans overwhelmingly think texting while driving is dangerous, but about half of cell phone users do it anyway.  Worse yet, 44 percent of U.S. adults say they've been a passenger in a car when a driver used their cell phone in a way that created a dangerous situation, according to a poll released Friday by the Pew Internet and American Life Project.  The finding suggests that drivers are talking out of both sides of their mouth.  In a poll published last year, 89 percent of adults said they think texting while driving is dangerous and they would support a ban.

States and local governments have acted aggressively to legislate against texting while driving, and 28 states ban it outright, but the laws appear to be having little impact.

While recent emphasis has been placed on stopping young drivers from texting -- 28 states and the District of Columbia ban all cell phone use by novice drivers -- adults are by one measure even more likely to text while driving. A Pew study last year found that 34 percent of 16- and 17-year-old drivers admitted sending or reading a text while driving, while 47 percent of adults said they had done so in the new study.

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"People are happy with their cell phones. There's a sense that it's happening all the time all around them, so it must be ok," said Lee Rainie, director of the Pew project.

The study has limitations. It relied on drivers' honest answers to poll-takers' questions. But Rainie said that respondents were unusually willing to confess to cell phone use while driving, another sign that there is not an overwhelming social stigma attached to it.

And the study did not account for the circumstances of drivers' cell phone use. Some may argue that texting while sitting at a stop light or calling while on an open highway in the Southwest is not dangerous behavior.

Still, respondents in numerous other studies show drivers think cell phone use in cars is dangerous. These do-as-I-say, not-as-I-do results shouldn't be too surprising, Rainie said.

"This is a classic thing you see in a lot of polling, this idea that it's OK for me but not for others," Rainie said. "People often underestimate their neighbors' ability and overestimate their own."

Behavioral scientists sometimes call this "superiority bias," and it shows up in all sorts of studies. Most people think they have above-average intelligence, for example. More on point, in a study conducted during the 1980s, 93 percent of Americans said they were above-average drivers.

The Pew research is consistent with other studies that show U.S. drivers just can't seem to put down their cell phones. According to figures released by the National Highway Traffic Safety Administration (NHTSA) in 2008, at any given moment 6 percent of drivers are talking on a cell phone.  That was up from 4 percent in 2002. The study also found that 1 percent of all drivers are texting at any given time.

That's not hard to observe.  Just stand on any street corner and peek at drivers as they pass. Even during rush hour, a stunning number are yakking -- or even typing -- away.

Perhaps that's why a 2009 study by the AAA Foundation for Traffic Safety found that 35 percent of drivers feel less safe on the road than they did five years ago.

Roads are getting safer, too
On the other hand, based on number of fatalities, driving is becoming safer. In March, the federal government announced that highway deaths fell nearly 9 percent from the previous year.  The fatality rate was the lowest since the government began tracking the data in 1966. Highway deaths have fallen steadily since 2005, leading some to suggest that the drop off is no cause for celebration: They say a sluggish economy that has kept drivers off the road is the cause. But dramatic safety improvements in highway design and cars, along with increased seat belt use rates, are also cited as reasons for the dip in deaths.

But the drop-off might come with a trade-off, in the form a surprising cause-and-effect that's referred to as the Peltzman Effect.  Cars can become so safe that drivers become overconfident and engage in more risky behaviors, such as texting while driving. It appears that while fatalities are down, fatalities caused by cell phone users are on the rise.

Not all states collect data on the cause of crashes, and often, that data is speculative. Still, the NHTSA estimates that in 2008, 5,870 people lost their lives and another half-million were injured while talking on the phone or texting -- meaning cell phones played a role in nearly one out of seven driving deaths and one out of five accidents.

Efforts by states to legislate the problem away have been bumpy.  Seven states and the District of Columbia outlaw the use of all hand-held cell phones while driving, encouraging a thriving market in hands-free devices. But several studies have discredited this strategy, showing it's the conversation -- not the one-handed driving -- that causes the distraction and danger.

Still, despite those fits and starts, Congress seems ready to take on the issue.  This month, the Senate Commerce Committee approved a bill that would set up a $94 million grant fund for states that take action against cell phone use while driving. The measure is awaiting action by the full Senate..

Enforcement also is a tricky issue. While in most states texting and driving is a primary offense -- meaning cops can issue tickets even if there is no other offense -- there are practical limits to the ability of police officers to peer into drivers' cars and see what they are doing behind the wheel. In many cases, tickets are handed out only after a police officer witnesses a tell-tale sign of texting while driving, such as erratic swerving.

(Click for a summary of state laws).

In recent years, there has been more focus on the more general topic of "distracted" driving, which includes activities that range from fumbling with iPods to putting on makeup.  Still, cell phones are a lightning rod for emotion on the topic. The heartbreaking stories of tragic deaths caused by cell phone use rival those on drunk driving.

Even Oprah has gotten involved, recently promoting a "No Phone Zone" pledge on her television show and in radio advertisements.

The Pew study shows that both legal and educational efforts aren't gaining much traction. Perhaps that's because technology is apparently using our brains against us. Some studies show that cell phone use -- calls or texts – evokes a response similar to addictive behavior.  Receiving or sending a message can give recipients a "kick" in the form of dopamine, part of the brain's seek-and-pleasure system. One kick usually encourages another, and users often get caught in a "dopamine induced loop," according to psychologist Susan Weinschenk, author of the book "Neuro Web Design."

That makes it awfully hard to ignore a buzz that indicates a text message is waiting to be read -- outweighing any perceived risk.

Pew researchers found that men are more likely than women to text while driving, perhaps because men are generally "more risk takers," Rainie said. Still, 42 percent of women have texted while driving.

The only group which seems unwilling to make the dangerous texting-while-driving bet are older adults -- only 3 in 10 adults aged 46 or older say they have done so. The gap is easily explained because younger users are far more comfortable with multitasking, Rainie said.

"They are multitaskers in every other dimension of their lives, why not driving?" he said.

His cell phone sits on the night table while he showers. Her e-mail is left accidentally on the computer screen while she uses the bathroom. To look or not to look?

It's perhaps the strongest new temptation of the 21st century -- the casual glance at a lover's cell phone text messages or e-mail.  This level of snooping once required rather deliberate spy-like behavior, such as rustling through a bedroom   drawer to find stashes of old-fashioned letters. Now it can happen as quickly as an instant glance.  And, according to one new study, it's happening a lot.

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But is such amateur sleuthing a normal part of life in the digital world, or does it mean couples need professional help?

 

A study commissioned by online gadget review site Retrevo.com found that 38 percent of people under age 25 had stolen a glance at their lover's texts or e-mails - without that person's permission or awareness. Among married adults of any age, the rate was 36 percent.

"We were surprised to see how large the percentage was," said Manish Rathi, co-founder of Retrevo.

California-based couples counselor Jay Slupesky was not.

"It happens all the time," he said. "That has brought people into counseling on many occasions."

Spousal spying can be illegal

There are numerous examples of extreme spousal spying.  Entire Web sites are devoted to buying hidden cameras, special cell phone snooping software, cracking e-mail passwords- and all manner of cyberspying. The newest trick, says Slupesky, is for one partner to secretly enable the GPS location software on a cell phone that's designed to help parents keep track of children. Then, a jealous spouse can virtually follow their lover's every move.

"Snooping on spouses has been taken to the next level.  The next lower level, that is," he wrote in a recent blog entry. "This … is downright creepy."

In some cases, spousal spying is illegal.  In 2005, the Department of Justice indicted the owners of a firm named LoverSpy, which sold electronic greeting cards laced with Trojan horse software designed to track a lover's Internet activity.  Authorities also charged four LoverSpy customers with illegal wiretapping.

While most reasonable adults would agree that going to such lengths to spy on a lover is inappropriate, the issue is not nearly so clear when considering casual glances at cell phones or e-mail inboxes.

Healthy relationship boundaries are constantly under assault from 21st century hyper-connectivity.

"In the past if you looked around after your lover you'd get caught. You had to look at their phone bill or rummage through someone's drawers," said Rathi.  The spying required at least some measure of premeditation.  Today, spying can be completely impulsive. "Now, it's always available, and people don't necessarily see it as spying. It's just so easy to do it. The phone is sitting right there."

Adding fuel to the fire is the rapid growth of smartphones, which put personal e-mail and texts in one handy, easily accessible gadget.  According to The Nielsen Company, only 10 percent of U.S. adults had a smartphone during the second quarter of 2008.  By the end of last year, that number had risen to 21 percent, and by 2011, Nielsen expects half of America to be using smartphones. That's a lot of opportunity for casual spying.

Online relationship forums are jammed with debate about the ethics and mental health impact of such snooping.  In numerous places, lovers say they discovered infidelity by snooping and swear by the tactic. But nearly as often, the spying ends poorly.  In one anonymous thread, a woman admits reading her boyfriend's text messages and says she regrets it because "I found nothing to help me nor did I find anything to make me worry about our relationship." She later admitted the snooping to her boyfriend, who felt violated.

"One of the things you will learn in life, as a girlfriend, or a parent," responds one advice giver, "is NEVER to admit when you spy."

But Slupesky, the therapist, says it's never a good idea to cross that line.

"I am always opposed to spying. If you are in a loving relationship, you just don't spy on your partner," he says. If there is suspicion of infidelity, the relationship needs therapy, not snooping-. "There are better ways to address your concerns."

He did offer a broader perspective on cell phone spying, however.

"I think some people are feeling distance from their spouse for whatever reason, and they think if they see who their spouse is e-mailing they will feel more connected.  That happens a lot," he said. "They are looking for a way to restore the connection...it's a way of asking, 'Are you still close to me? Am I still the most important person in your life? Do you still love me?' "

Of course, there are healthier ways to deal with those profound questions. In therapy, Slupesky always tries to get lovers to stop the spying behavior.

"One thing I do when someone tells me they are doing that is I ask, 'Did you feel better after you looked at his phone?' They usually say, 'No.' And then I ask, 'If it doesn't make you feel better, why do you keep doing it?' "

But often, he said, the compulsion is too strong, and the access too easy, for his patients to stop.

While the Retrevo survey found that men and women utilize casual spying equally, Slupesky said two-thirds  of his spying patients are women.

"Women are more likely to notice something is missing in the emotional connection, and men cheat more," he said.

Rathi said one way to help solve the problem of casual spying is to take away the opportunity.  Smartphone users should password-protect their gadgets to avoid creating an irresistible temptation for their lovers, he said. Logging out of Web sites and e-mail accounts is also a sound, safe computing practice.

Retrevo plans to study the spying issue annually to identify any shifts in social standards on spying.

"The amount of time people spend using these gadgets is increasing, and the amount of data they are consuming through these devices is continuing to increase.  So I think we will see more (spying) as time goes by," he said.

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