Here’s an important piece of legislation that was submitted a few months ago, in the House by Rep. Jason Chaffetz (R-Utah) and in the Senate by Sen. Ron Wyden (D-Oregon), that would prevent the government from using GPS or cell phone geolocation data to track us without first getting a warrant. This is the statement released by the two of them announcing the bill and the rationale for it:
New technologies – like cell phones, smart phones, laptops and navigation devices – are making it increasingly easy to track and log the location of individual Americans, yet federal laws have not kept pace with the technology. The lack of legal clarity surrounding the use of electronically-obtained location data, also known as geolocation information, means that there are no clear rules for how this data can be used, accessed or sold by law enforcement, commercial entities or private citizens. As a result, prosecutors are often unsure when judges will allow geolocation information to be admitted as evidence. Telecommunications companies are often unsure when or if they are allowed to share their customer’s geolocation data with law enforcement. Customers are often unsure when or if their providers are sharing their geolocation data with law enforcement or selling it to other private companies. It is even unclear if law enforcement has the tools to arrest a stalker caught using technology to follow another person or obtain that person’s geolocation information.
With this in mind, U.S. Representative Jason Chaffetz (R-Utah) and U.S. Senator Ron Wyden (D-Ore.) teamed up to write the Geolocation Privacy and Surveillance (GPS) Act. The bipartisan legislation creates a legal framework designed to give government agencies, commercial entities and private citizens clear guidelines for when and how geolocation information can be accessed and used. U.S. Representative Bob Goodlatte, Chairman of the House Judiciary Subcommittee on Intellectual Property, Competition and the Internet, endorsed the effort as an original co-sponsor.
“I think it’s great that GPS and tracking technology exists,” said Chaffetz. “What isn’t great is the idea that this technology can be used to track somebody without their knowledge. It is the job of Congress to protect and defend the United States Constitution and the personal liberties provided to American citizens under the Fourth Amendment. Quite frankly, the government and law enforcement should not be able to track somebody indefinitely without their knowledge or consent, or without obtaining a warrant from a judge.”
“GPS technology is unquestionably a great tool, not just for Americans on the go and cellular companies offering services, but for law enforcement professionals looking to track suspects and catch criminals,”Wyden said. “But all tools and tactics require rules and right now, when it comes to geolocation information, the rules aren’t clear. Congressman Chaffetz and I have worked to establish rules that we believe will foster the effective use of geolocation data while protecting the privacy rights of law-abiding American citizens.”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. In a recent memo, the Congressional Research Service identified a lack of cohesion throughout criminal court jurisdictions over what standards and procedures must be met in order for information gathered though GPS 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. The GPS Act takes steps to establish 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).
- Prohibit commercial service providers from sharing customers’ geolocational information with outside entities without customer consent.
Unfortunately, it has only garnered six co-sponsors in the House, four Democrats and two Republicans, and it has been ignored at this point, not even getting a committee hearing. It doesn’t have a single co-sponsor in the Senate where, again, it has been ignored. And even if it passes, there’s an easy and obvious loophole opened by Presidents Bush and Obama in the State Secrets Privilege. Welcome to the National Surveillance State.