Congress Should Resolve Location Tracking Questions

(Note: This blog was originally posted by Senator Wyden on Huffington Post.)

Today, the Supreme Court was asked to tackle an important question: does the government need a warrant to use an electronic tracking device to secretly monitor your movements, 24 hours a day?

It's an important question and the fact that it's reached the Supreme Court underscores the fact that the law is unclear. But it's not the only question that needs answering, and it would be a mistake to assume that the Supreme Court can or should provide all of the answers where geolocation data is concerned.

Until relatively recently, law enforcement's ability to determine an individual's location and track their movements was largely limited to natural human powers of observation. These limitations meant that law enforcement was unlikely to dedicate the time, energy and resources necessary to follow you around twenty-four hours a day, unless they had a good reason to do so.

But technological advances have made round-the-clock tracking of large numbers of people increasingly easy. Police departments no longer have to pay overtime or divert resources from other projects to find out where an individual goes -- all they have to do is place a tracking device on someone's car or ask a cell phone company for that individual's location history and the technology does the work for them.

It is unclear exactly how many law enforcement agencies are currently using this capability, but it is reasonable to say that while resource limitations used to discourage the government from tracking you without a good reason, these constraints have largely disappeared. A police department, for example, might not have the resources to follow everyone that lives within a city block for a month, but they can request every resident's cell phone location history, or place tracking devices on all of the residents' cars.

And while we all know that people might see us when we step out on the street each morning, we certainly don't expect any of those people to track all of our movements over a period of days, weeks, months or years. You can learn a lot about someone from where they've been: where they go to church, what doctors they're seeing, what political organizations they might be part of, and who they spend their time with.

Yet while technology has made gathering all of this data rather easy, the law is unclear about who can collect and access this information and when. Existing laws and court precedents did not anticipate modern geolocation technology, and these laws have generally not been updated since 1986. Congress's failure to grapple with these issues is one of the reasons the Supreme Court is being asked to weigh in.

But for those who are tempted to pass responsibility for this issue entirely to the Court, it is important to remember that the Supreme Court isn't being asked to decide what the best policy is for the use of geolocation data. They aren't even being asked to take a comprehensive look at the issue.

The Supreme Court is being asked to decide the fate of Antoine Jones, who was convicted of drug conspiracy charges after federal agents used a tracking device to follow him to a house where drugs and money were kept. In all likelihood, the Court will settle the narrow question of whether or not government agents need to get a warrant before installing a tracking device on a suspect's car. And the justices may also consider whether government-installed GPS tracking devices require warrants in general. But what about all of the other questions that the Supreme Court won't be considering?

What about the use of similar tracking devices by private citizens? A government agent may or may not have to get a warrant to track a suspect, but is it illegal for a stalker to place a tracking device on a young woman's car? Right now the law isn't clear.

What if instead of installing a tracking device, a government agent (or a private citizen) secretly uses a person's cell phone or GPS navigation device to ascertain that person's location? Is a warrant required for that? If so, should there be different rules for real-time tracking and getting records of someone's past movements?

More broadly, when should a cellular company give law enforcement access to a customer's geolocation records? What if instead of giving law enforcement access to its customers' location records, that cellular company wants to sell those records to another company? What are the rules then?

These are all important questions where clear rules would benefit law enforcement and private businesses, while ensuring that individual privacy is protected.

I'm proud to be part of a bipartisan, bicameral coalition that has proposed legislation to address these questions in a comprehensive way. You can learn more about our proposal at http://wyden.senate.gov/gpsact.

By tackling this issue directly, Congress can provide much needed clarity for law enforcement, private businesses and individual citizens, so that the courts are not asked to weigh in again and again. Rather than waiting for future trials to determine rules that will impact every citizen, Congress should step in and write a law that takes every American's rights into consideration.