Surveillance through GPS is not the same as using cellular tower data, say law enforcement officials

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The boundaries of surveillance are being called into question as the law enforcement community seeks continued warantless access to electronically-generated location data while privacy advocates say a January 2012 Supreme Court case means all geolocation data is protected by the Fourth Amendment.

In the wake of the case (.pdf), United States v. Antoine Jones, two congressmen--Rep. Jason Chaffetz (R-Utah) and Bob Goodlatte (R-Va.)--have proposed a bill (H.R. 2168 [.pdf]) that would require law enforcement obtain a warrant before accessing any geolocation data. The Jones case ruled that the FBI could not attach a Global Positioning System device to a car without a warrant.

Panelists before a May 17 hearing regarding the bill called by the House Judiciary subcommittee on crime, terrorism, and homeland security, agreed that clarity is needed around methods of surveillance, but were divided in their support of the bill, called the Geolocational Privacy and Surveillance Act.

The "GPS Act" would require government entities to show probable cause and obtain a warrant before requesting geolocation information from cellular carriers, EZ-Pass and OnStar service providers. National security emergencies would fall within a small set of exceptions to the warrant requirement under the bill.

Extending the probable cause requirement would make the proposed legislation "overly broad," said John Ramsey, national vice president of the Federal Law Enforcement Officers Association.

"Law enforcement is not seeking the content of conversations, nor are we trying to step on someone's expectation of privacy. We are simply looking at corporate records, just like financial records, through which a legally authorized subpoena, or court order will suffice…the same standards should extend to all corporate records," said Ramsey.

There's a difference between historical data compiled from cell phone towers and real-time GPS ping information, argued Joseph Cassilly, president of the National District Attorneys Association.

"The overwhelming request for geolocation data in my jurisdiction are for historical data. These requests are often made to confirm or rebut information that does not meet the probable cause standard," said Cassilly.

But Catherine Crump, staff attorney with the American Civil Liberties Union, said there is no difference between monitoring someone's movements by attaching a GPS device to someone's car or from obtaining information from their cell phone.

"The physical attachment of a device is not the operative thing here," she said, voicing the ACLU's support for the legislation.

Contrary to the arguments of Ramsey and Cassilly, establishing probable cause will typically not interfere with investigations, said Edward Black, president and chief executive of the Computer & Communications Industry Association.

"We do feel that a probable cause standard is not that high of a standard, but it is important and it is a standard high enough to protect some vital privacy rights," said Black.

"I believe that the vast majority of law enforcement needs are not time sensitive and urgent, and can be met by a probable cause standard," he added.

For more:
- go to the hearing page (archived webcast and prepared testimony available)

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