Privacy experts and attorneys urged Congress to update laws governing protections for wireless customers' location data in criminal investigations Thursday, testifying on Capitol Hill that there is confusion among federal courts and other practical difficulties.
The House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security is looking to update the Electronic Communications Privacy Act in the wake of the U.S. Supreme Court decision last year in United States v. Jones. The court, upholding the reversal of a man's life sentence, held that a government's placement of a GPS device on a car is a Fourth Amendment search.
But the ubiquitous nature of mobile phones that also include ways to track people brings up a wide range of issues, said subcommittee Chairman Representative Jim Sensenbrenner (R-Wis.). "Unfortunately, Jones was limited to the installation of a GPS tracker on a suspect’s vehicle and gives us limited guidance," Sensenbrenner said.
Law enforcement and civil liberties groups agree "the current system is unclear and in a state of chaos, with judges applying different standards to identical forms of tracking in different states, and it’s important the law be uniform," said Catherine Crump, staff attorney for the American Civil Liberties Union.
"It took many years for the court to even reach the Jones decision, and GPS tracking had been going on for a long time, and it only partially answered the question," Crump testified. "It’s important this body step in and clarify the law so everyone understands what their rights are."
The U.S. Court of Appeals for the Third Circuit, while struggling to apply the law to a government request for historical cell site location information, stated that it was "stymied by the failure of Congress to make its intention clear," Crump noted in her written testimony.
At least one gap in the statute has provoked widespread disagreement among federal judges, and other practical and procedural difficulties have emerged over time, Perkins Coie senior counsel Mark Eckenwiler said in written testimony.
A sharp divide has occurred among lower federal courts about the government's use of orders that combine two different types authority or legal tests to get location information, said Eckenwiler, a former U.S. Justice Department lawyer who focused on electronic surveillance law.
Other areas that could use clarity are tower dumps—where law enforcement gets all records handled by a cell tower—and the legal framework for real-time tracking information, Eckenwiler said.
The agency that most frequently seeks the data, the Justice Department, declined to send anyone to testify at the hearing, Sensenbrenner said.
Antoine Jones, the man at the center of the Supreme Court case, remains jailed pending a fourth trial in on charges he participated in a drug trafficking ring in the Washington metropolitan area. Jones represented himself at trial earlier this year. The jury deadlocked 6-6.