ECPA Reform Necessary to Clarify Tracking Rules, Lawmakers Say

Wyden introduced the Geolocation Privacy and Surveillance (GPS) Act (S-1212) in June, which aims to resolve legal ambiguities over how geolocation data is treated (CD June 16 p8). The bill specifically limits police and government entities from warrantless tracking of individuals’ location data, and is co-sponsored by Kirk. The House companion bill (HR-2168) was introduced by Rep. Jason Chaffetz, R-Utah, and sponsored by a bipartisan collection of members from the House Judiciary Committee, including Howard Coble, R-N.C.; Robert Goodlatte, R-Va.; and Zoe Lofgren, D-Calif.

"Electronic means that keep tabs on your location, and we're talking about cellphones, GPS, laptops, any technology that can keep tabs on your location, we need to set rules for how that information can be used,” Wyden said. As currently written, ECPA permits wireless service providers and third-party applications to share customers’ location information with the government and law enforcement agencies without user consent. Kirk said the legislation is “absolutely necessary because of the technology and the ability of the state to track you wherever you may go.” He also urged better privacy protections on cloud services that American citizens have increasingly adopted. The bill is a “good first step,” said Kirk, “but we may need to go further. I think also we have privacy rights concurrent to the cloud and that might be the next step we may take."

Wyden dismissed criticism that his GPS bill would hinder the capabilities of law enforcement agencies to ensure national security. “I think law enforcement works best when there is a clear set of rules,” Wyden told us. “That’s what Miranda was all about. If you don’t have a clear set of rules, we're going to have problems. To me you have this division in the courts and the legal system with respect to what you're allowed to do … and I think you have to have a clear set of rules and you will have more support for law enforcement if you do.”

The Federal Law Enforcement Officers Association denounced the bill for restricting its members’ ability to pursue criminals, said President John Adler. “We already have a clear set of rules,” he said, and Wyden’s “proposal only serves to empower those who have no rules: criminals. We can’t pursue criminals while confined in a potato sack. Sen. Wyden should trust the professionalism of the Inspector General to investigate any allegations of abuse of authority."

The bill contains narrow exemptions that enable federal law enforcement agencies to secure the U.S., said Kirk. “We are preserving the ability under a FISA [Foreign Intelligence Surveillance Act] statute to make sure that the country can be protected against the problems of international terrorism,” he said. “I think in a world absent from the Fourth Amendment, [law enforcement officials] would prefer it not to exist, but it’s a fundamental part of being an American.”

Wyden said he will be paying close attention to the Supreme Court case of U.S. v. Jones which will consider whether the warrantless use of a tracking device on a suspect’s vehicle violates the Fourth Amendment, which bans warrentless searches and seizures. The court will look at the case of Antoine Jones, whose movements were recorded by a GPS device that was installed later than a warrant had allowed (CD June 28 p10). “We're not surprised that this case is going to go to the Supreme Court,” Wyden told us. “I think that the arguments are very compelling on constitutional grounds which is what we are highlighting today.” The court will hear oral argument on the case Nov. 8.