Just over a year ago, the US Supreme Court declined to clear up the nationwide legal confusion regarding whether the Constitution requires authorities to get a probable-cause court warrant to obtain cell-site location data records of suspects under investigation.
The federal circuit courts of appeal and the lower courts have been all over the map when it comes to this bread-and-butter privacy issue. Even AT&T has said it was confused about the law, and it has demanded clarity on the issue. To that end, a bipartisan group of federal lawmakers proposed legislation Wednesday that seeks to answer the question once and for all: the government would need probable-cause warrants to obtain geolocation data on suspects.
"Outdated laws shouldn't be an excuse for open season on tracking Americans, and owning a smartphone or fitness tracker shouldn’t give the government a blank check to track your movements," Sen. Ron Wyden, a democrat of Oregon, said of the legislation he's co-sponsoring.
Consider cell-site tracking, even via stingrays that simulate cell sites. This type of spying has become an important surveillance tool in the aftermath of the US Supreme Court's 2012 ruling that the authorities need a warrant to place GPS trackers on vehicles.
The government can often get data on a person's whereabouts via cell tower pings without a probable-cause warrant. And in all the litigated cases on cell-site location tracking, the government argues that cell-site records are not constitutionally protected. Instead, the authorities maintain that the information is a business record that the telcos or other private companies may hand over if the government asserts that reasonable grounds exist to believe the data is relevant to an investigation.
That argument stems from the 1979 Supreme Court precedent that provided the legal justification for the National Security Agency's telephone metadata snooping program that NSA whistleblower Edward Snowden exposed.
The proposed legislation is called the "Geolocational Privacy and Surveillance Act." It would also apply to GPS-enabled gadgets like fitness devices and onboard navigation systems.
"Congress has an obligation to act quickly to protect Americans from violations of their privacy made possible by emerging technologies. As we welcome innovative technologies that help fight crime, we must be mindful of the potential for abuse," said Rep. Jason Chaffetz, a republican of Utah. "This bill will build a framework governing the use of geolocation and cell-site simulator technologies."
The Center for Democracy and Technology, Access Now, the Electronic Frontier Foundation, and the American Civil Liberties said Wednesday they supported the legislation.
The proposal—similar versions of which date to 2012—would also make it a crime for people to surreptitiously track an adult's movements using an electronic device. Further, unless there is a court warrant, the measure says companies may not share geolocation information with third parties unless a customer consents.
Listing image by Daniel Arvesen
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