By: Jimmy Matteucci
On March 21, two bills were introduced in the House and the Senate that would prohibit law enforcement and private investigators from utilizing GPS data or cellphone location data without first obtaining a warrant. The Geolocational Privacy and Surveillance Act (“GPS Act”) was introduced in the House by Rep. Jason Chaffetz (R-Utah) and in the Senate by Mark Kirk (R-Illinois) and Ron Wyden (D-Oregon). The cosponsors of the GPS Act say it is a response to the Supreme Court’s holding in U.S. v.Jones, which they say did not go far enough. “Although Jones was a step in the right direction, the Department of Justice is still arguing in court that they do not need a warrant to track someone’s movements using GPS devices or technology. This highlights the need for Congress to step in and provide clear and reasonable guidelines,” said Rep. Chaffetz.
Writing for the majority in U.S. v. Jones, Justice Scalia used trespass doctrine to hold that placing a physical GPS tracking device on an owner’s car was a trespass to private property and therefore a “search” under the Fourth Amendment. Subsequently, law enforcement has argued that merely obtaining GPS information from someone’s phone or built-in car system, such as OnStar, is not such a trespass, and therefore does not require a warrant. The GPS Act would explicitly overrule this argument, making all acquisitions of geolocation information prohibited except pursuant to a warrant.
The text of the proposed GPS Act includes several exceptions to this general prohibition, including when consent is given; when the information is obtained in the normal course of business; when the information is acquired while conducting foreign intelligence surveillance; when the information is acquired in an emergency; when the information is used to locate a person who is unlawfully using the device through theft or fraud; and, when the geolocation information being acquired and used is readily accessible to the general public. Of all of these exceptions, the emergency situation exception has the potential to be read the broadest. The text allows an officer to intercept geolocation information if they, “reasonably determine that an emergency situation exists that involves (i) immediate danger of death or serious physical injury to any person; (ii) conspiratorial activities threatening the national security interest; or (iii) conspiratorial activities characteristic of organized crime.” There are safeguards built in, such as requiring an application for an order approving the interception within 48 hours after it has occurred, however one expects law enforcement to rely heavily on this exception.
To make sure that the prohibitions included in the GPS Act are enforced, the bills include civil and criminal penalties for violators.
The GPS Act has attracted vocal support from the American Civil Liberties Union, Americans for Tax Reform’s DigitalLiberty.net, the Competitive Enterprise Institute, the Electronic Frontier Foundation, and the Computer and Communications Industry Association. If the bills are enacted, the procedural protections surrounding the use of new technologies by law enforcement will be greatly enhanced.
For more articles on the subject:
http://www.wired.com/threatlevel/2013/03/warrantless-gps-tracking/