US legislation revived to curb warrantless geolocation tracking

The aim is to establish a clear, nationwide framework for the use of geolocation technologies

U.S. legislators have reintroduced bills that would place curbs on warrantless access by the government to electronically generated geolocation information of Americans, including on the use of cell-site simulators that can capture cellphone data.

Bicameral legislation introduced Wednesday, called the Geolocation Privacy and Surveillance Act, aims to create clear rules for when law enforcement agencies can acquire an individual’s geolocation information, generated from electronic devices like smartphones, GPS units and Wi-Fi equipped laptops.

Another bill, the Cell Location Privacy Act of 2017, requires law enforcement, including local, state and federal agencies, to obtain a warrant for the use of cell-site simulators, with exceptions such as the use of the technology in emergencies or for foreign intelligence surveillance. It also imposes a fine or imprisonment of up to 10 years, or both, for any one knowingly using a cell-site simulator, except under certain exceptions like a warrant.

Also known as Stingrays or “IMSI catchers,” cell-site simulators track the location of mobile phones by mimicking cellphone towers.

The geolocation privacy bill was introduced by Senator Ron Wyden, a Democrat from Oregon; Representative Jason Chaffetz, a Republican from Utah; and Representative John Conyers, a Democrat from Michigan. Chaffetz introduced the Cell Location Privacy Act in the House of Representatives.

The Department of Justice said in September 2015 that law enforcement agents will have to obtain a search warrant supported by probable cause before using a cell-site simulator, with some exceptions. Under the DOJ policy, old and irrelevant data would also have to be deleted. The Department of Homeland Security and the Internal Revenue Service also announced a similar requirement of warrants for the use of stingrays.

But a staff report released in December by the House Oversight and Government Reform Committee pointed out that state laws continue to vary as to what court authorization is required before law enforcement can deploy cell-site simulators. State and local law enforcement continue to rely in many cases “on the state equivalent of a pen register/trap and trace order, which only requires law enforcement to meet a ‘relevance based standard’ to use cell-site simulation devices, a standard that is lower than probable cause," it added.

In 2012, the Supreme Court unanimously ruled in the U.S. v. Jones case that attaching a GPS tracking device to a vehicle requires a warrant, but did not address other digital location tracking, including through cell phones, OnStar systems and consumer electronics devices, the legislators said. The court upheld an appeals court verdict that the attachment of the GPS device to Antoine Jones' vehicle and its use to monitor its movements constituted a search under the Fourth Amendment.

The Geolocation Privacy and Surveillance Act would apply to all domestic acquisitions by law enforcement of geolocation information of individual Americans without their knowledge, and would also cover collections from private companies and direct acquisitions through the use of cell-site technology.

Judges have ruled differently on the procedures law enforcement must follow to obtain individuals’ geolocation data from private companies, and also on how much evidence is necessary. The bill aims to bring uniformity in the guidelines for when and how geolocation information can be accessed and used, according to FAQs on Wyden’s website. The rules will not affect collection of location data by smartphone apps when done with the consent of the user, it added.

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