On June 15, Sen. Ron Wyden (D-OR) and Rep. Jason Chaffetz (R-Utah) announced the Geolocational Privacy and Surveillance Act, a statute which would require law enforcement to get a warrant before using technology to track individuals’ physical location. The statute would offer certainty in an uncertain legal regime. Currently, both the Ninth Circuit and the Seventh Circuit allow officers to attach a GPS device to your car and track you without cause, while the D.C. Circuit does not permit such warrantless surveillance. (The Obama Administration has asked the Supreme Court to overturn the D.C. Circuit opinion.)
State court cases are equally irregular with residents of Wisconsin subject to GPS surveillance for any or no reason and New York dwellers protected from such warrantless surveillance without just cause.
To add to the confusion, in the Third Circuit, federal magistrates have the discretion to require the government to get a search warrant based on probable cause before obtaining cell phone tower connection records that can reveal your physical location. In other Circuits, the Department of Justice successfully obtains such records with less than a probable cause showing under 18 U.S.C. 2703(d). (Section 2703(d) requires only specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.)
The new GPS Act would mandate a warrant for officers to obtain GPS and cell tracking information, regardless of whether the information was stored or obtained in real time. This is savvy because geolocation data can be equally revealing whether stored or contemporaneously received, and because the distinction, a legacy from the 1986 Electronic Communications Privacy Act, doesn’t make much sense in a store-and-forward world. The bill also would make it a crime for anyone to obtain or disclose unpublished geolocation information unless pursuant to a warrant, the Foreign Intelligence Surveillance Act or consent. To incentivize compliance, illegally obtained information would be excluded from courtroom use, and injured parties could sue civilly for actual or statutory damages and attorney’s fees.
The bill has support from CCIA, a DC trade group that represents major technology companies, and from me. I’m eager to see how well it does in Congress in the face of Administration opposition. I also wonder whether the Supreme Court will take the bill into account in deciding whether to review the D.C. Circuit decision.
For more about the sponsor’s motivation behind the bill, see Nate Anderson’s typically thorough coverage on Ars Technica.
(For the original post, see the ZwillGen blog.)