March 21, 2013

Bipartisan Legislation Institutes Warrant Requirements to Track Americans with GPS Data

Washington, D.C. – Recent reports indicate that by the end of 2013 smart phones could account for 70 percent of all mobile phones in the U.S. Each of these cutting-edge devices includes built-in GPS technology collecting more personal geolocation data than ever before. However, the rules governing how law-enforcement can acquire and use this data to track individuals are unclear.

To add to the confusion, courts in different jurisdictions have applied the law inconsistently – with some courts allowing law-enforcement wide latitude for the tracking of Americans through their cell phones and GPS-enabled devices.  The Supreme Court’s ruling in the US vs. Jones tracking case in 2012 was consistent with the GPS Act, but several of the Justices noted that a number of questions remain unresolved by the courts, and suggested that it is up to Congress to establish clear rules.

In order to provide uniformity and clarity for the use of GPS data by law-enforcement and to protect American civil liberties in the digital age, a bipartisan coalition led by Senator Ron Wyden (D-Ore.), Rep. Jason Chaffetz (R-Utah) and Senator Mark Kirk (R-Ill.) have reintroduced the Geolocation Privacy and Surveillance Act (GPS Act) in the House and Senate which will require law-enforcement to obtain a warrant before acquiring geolocation information of an American. The law makes exceptions for cases of emergencies or national security, but will extend warrant requirements to acquisition from commercial service providers and covert government tracking devices.  

“GPS technology has evolved into a useful commercial and law enforcement tool but the rules for the use of that tool have not evolved along with it,” Wyden said. “The GPS Act provides law enforcement with a clear mandate for when to obtain a warrant for the geolocation information of an American. It also provides much-needed legal clarity for commercial service providers who often struggle to balance the privacy of their customers with requests for information from law enforcement. Finally, it protects the privacy and civil liberty of any American using a GPS-enabled device.”

"The GPS Act will modernize our outdated communications privacy laws, which were created before the Internet was even invented," Senator Kirk said. "Our bill will continue to protect citizens' 4th Amendment rights against unreasonable search and seizure by requiring law enforcement to obtain a warrant prior to digitally tracking your location. I am proud to join Senator Wyden in this bipartisan effort to help set a clear legal standard to safeguard our digital privacy rights."  

The GPS Act is supported by technology and civil liberty advocacy groups such as the American Civil Liberties Union and the Computer and Communications Industry Association.

“Cell phones are also portable tracking devices, and the law needs to catch up with technology to protect Americans from the indiscriminant use of this type of invasive surveillance,” said Chris Calabrese, legislative counsel in the ACLU’s Washington Legislative Office. “Police routinely get people’s location information with little judicial oversight because Congress has never defined the appropriate checks and balances. Under the GPS Act, all that would change. Police would need to convince a judge that a person is likely engaging in criminal activity before accessing and monitoring someone’s location data. Innocent people shouldn’t have to sacrifice their privacy in order to have a cell phone.”

“The GPS Act is vital to protect the privacy and civil liberties of Americans and to set standards that give businesses certainty,” said Ed Black, President & CEO of the Computer & Communications Industry Association. Resolving these critical privacy policies will have a positive impact on stakeholders from customers to investors and help boost a booming sector of our economy.”

Overall the GPS Act:

· Provides clarity for government agencies, commercial service providers, and the public regarding the legal procedures and protections that apply to electronic devices that can be used to track the movements of individual Americans.  The Congressional Research Service identified a lack of cohesion throughout criminal court jurisdictions over what standards and procedures must be met in order for location information gathered though electronic devices to be used in court.  This lack of clarity has led to confusion among law enforcement and prosecutors, who waste valuable time and resources litigating and appealing what should be clear cut rules.

· Requires the government to show probable cause and get a warrant before acquiring the geolocational information of a U.S. person, while setting out clear exceptions such as emergency or national security situations or cases of theft or fraud.  

· Applies to all law enforcement acquisitions of the geolocational information of individual Americans without their knowledge, including acquisition from commercial service providers as well as from tracking devices covertly installed by the government.

· Applies to real-time tracking of a person’s movements, as well as the acquisition of records of past movements.  (Real-time tracking = “Where is John Smith right now?”  Acquisition of records of past movements =“Where did John Smith go on St. Patrick’s Day?”)

· Closely tracks existing wiretapping laws with regard to court procedures for getting a warrant, penalties for acting without a warrant, exclusivity of the authority, authorization without a court order, etc.

· Creates criminal penalties for surreptitiously using an electronic device to track a person’s movements that parallel those for wiretapping.  (Currently, if a woman’s ex-husband taps her phone, he is breaking the law.  This legislation would treat hacking her GPS to track her movements as a similar offense).

· Prohibits commercial service providers from sharing customers’ geolocational information with outside entities without customer consent. 

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