Law enforcement representatives and privacy advocates clashed on Capitol Hill today over a bill that would require law enforcement to get a search warrant before getting cellular phone data that can track the user’s location.
Right now, Congress and most states have not enacted statutes to regulate how law enforcement can get access to the tracking data kept in more than 322 million smartphones and cellular phones in the United States.
That data, when analyzed, can paint a clear picture of a person’s life – trips to a psychiatrist, the strip club or a paramour’s home – that violate a right to privacy, representatives from the ACLU and the cell phone industry told a House Subcommittee on Crime, Terrorism, and Homeland Security.
“Today, individuals’ movements can be subject to remote monitoring and permanent recording without any judicial oversight,” ACLU staff attorney Catherine Crump said. “Innocent Americans can never be confident that they are free from round-the-clock surveillance by law enforcement of their activities.”
An internal Department of Justice document shows cell phone service providers keep that information for more than a year, Crump told the committee. Verizon stores the cell towers used by a mobile phone for “one rolling year;” T-Mobile USA keeps this information “officially 4-6 months, really a year or more;” Sprint and Nextel store this data for “18-24 months;” and AT&T/Cingular retains it “from July 2008.”
The Supreme Court, in January’s U.S. v Jones decision, ruled that a GPS tracking device attached to a car for weeks without a warrant violates the Fourth Amendment rights to be free of searches. But the ruling did not address the loads of GPS data from smartphones, which are half of all cellular phones now in use.
Congress needs to act, Crump said, because “it will likely take years for this question to reach the Supreme Court again.”
But Joseph I. Cassilly, state’s attorney for Harford County, Md., and past president of the National District Attorneys Association, said the Geolocational Privacy and Surveillance Act, or GPS Act, as written could limit law enforcement’s ability to most effectively and efficiently protect citizens.
The GPS Act “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 gave the example of a murder where police received an anonymous call giving the identity of two gang members alleged to be involved. The detectives got information about those gang members’ phones from previous arrests, and then were able to get geolocation data that showed the men were in the same place as the murder when it happened.
“Even with this information, the police do not have probable cause to arrest but to require probable cause to access historical records would have deprived the officers of this vital information,” Cassilly said.
He said there are thousands of times law enforcement has properly gathered this evidence to help with the rescue of abducted children, the identification and prosecution of sexual predators, and the apprehension of suspected terrorists.
A related bill in the Senate awaits action in the Senate Judiciary Committee.