Law enforcement officials today expressed concern over a bill intended to provide guidelines for how and when they can access someone's location-based data.
Representatives from the Federal Law Enforcement Officers Association (FLEOA) and the National District Attorneys Association (NDDA) told members of the House Judiciary Committee that the legislation in question is overbroad and could hinder investigations.
"Do we really want to slow down the apprehension of murderers and rapists so they can build their trophy wall by increasing the amount of legal documents necessary to gather information?" John Ramsey, national vice president of FLEOA, said during a hearing before the committee.
At issue is the Geolocation Privacy and Surveillance (GPS) Act, first introduced in June 2011. The GPS Act would work much like current federal wiretapping statutes. Government agencies would be required to get a probable cause warrant if they want to access geolocation information, much like they obtain warrants for wiretaps or other electronic surveillance.
Last year, bill sponsor Sen. Ron Wyden argued that the bill would help law enforcement by "providing strong, clear rules." According to Wyden, current laws relating to geolocation have not kept pace with technology, so judges in different jurisdictions have issued conflicting rulings about how to handle location-based data.
Officials like Ramsey and Joseph I. Cassilly, past president of the NDDA, however, argued that it would instead create more steps and put time-sensitive investigations in jeopardy.
"The GPS Act, as currently written, has been drafted so broadly that the bill would require a search warrant to gather many forms of information that can currently be obtained by subpoena," Cassilly said. "The new standards set through the GPS Act would hamper law enforcement's ability to quickly obtain important information that could be used to save lives."
Cassilly used the example of someone who anonymously calls the police and provides them with the names of two gang members involved in a recent shooting. Using cell-phone data obtained from previous arrest records, police find that the gang members' phones were hitting off cell towers in the area of the shooting. The GPS Act, however, would require probable cause to access those historical records, which would make it harder to come by.
"The overwhelming majority of the requests for geolocation data in my jurisdiction are for the historical data," Cassilly said. "Denying law enforcement the ability to use this critical tool is to decide to refuse to allow America's communities to protect themselves from the scourge of gangs."
Rep. Jason Chaffetz, the bill sponsor on the House side, insisted it is not solely focused on law enforcement. "I'm worried about someone tracking and following someone else," like a spurned lover, he said.
Chaffetz pressed Ramsey and Cassilly on whether a standard for location-based information was necessary. They reluctantly admitted that it probably was, but Cassilly stressed that "I don't think the probable cause standard set out in this bill is appropriate."
Also in attendance today was Catherine Crump, a staff attorney for the American Civil Liberties Union (ACLU), which supports the legislation. "Requiring law enforcement agents to secure a warrant based upon probable cause before obtaining geolocational information would allow legitimate investigations to proceed, while ensuring that innocent Americans are protected from intrusions into their privacy," she said.
Both sides referenced a January Supreme Court decision that said the government must obtain a warrant before using GPS to track suspected criminals. Attaching such a device to a suspect's car and tracking them after a warrant has expired - like the government did with Antoine Jones - is a violation of that person's Fourth Amendment rights, which guards against unreasonable search and seizure, the Court found.
Ramsey said the GPS Act is a "pale attempt" to build on the Jones decision.
"The Supreme Court did not extend the Jones decision to cellular phones," Ramsey said. "Law enforcement is not seeking the 'content' of a conversation, nor are we trying to step on someone's expectation of privacy. We are simply looking at corporate records, just like financial records, to which a legally authorized subpoena or court order will suffice."
The ACLU's Crump argued that the Jones case did not address whether affixing a GPS monitor and tracking someone "is the sort of search that requires a judicial warrant supported by probable cause. It will likely take years for this question to reach the Supreme Court again," she said. "Congress should not stand by as law enforcement faces confusion over the rules for obtaining location information and Americans' privacy rights are violated."
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