ISPLA Continues Working on GPS Tracking Issues
- The past two years, ISPLA has been assisting state associations in gaining
exceptions for use by investigators utilizing global positioning systems
while conducting lawful investigations and surveillance. Although such use
is illegal by the private sector in some states (with very few exceptions
granted for permissible purposes), there are other states which have
provided exceptions for investigators, or have no statute prohibiting such
However, with federal anti-GPS tracking legislation being offered and
pending legislation to amend the Electronic Communications Privacy Act, a
bipartisan proposal has been put forth by Representative Jason Chaffetz
[R-UT] and Senator Ron Wyden [D-OR], the "Geolocational Privacy and
Surveillance Act" or the "GPS Act" to protect geolocation information.
Representative Chaffetz stated their bill would limit the governments and
private companies' access to citizens' geospatial data, making it illegal to
track persons without their consent.
ISPLA has reviewed a 20-page draft of this proposed GPS Act. In a nutshell,
criminal penalties are provided on individuals using GPS to track another
person's movements and on cellular phone companies that share customers'
location data without clear consent. Exceptions concern emergencies,
warrants, and parental consent to having children tracked. Statutory
damages, whichever is the greater of $100 a day for each day of violation or
$10,000, or actual damages suffered by the plaintiff and disgorgement of
profits by the violator to the plaintiff, whichever is greater, are provided
in this proposed bill.
This is an issue that provokes the ire of liberals and conservatives alike
-- the ACLU and the Cato Institute. Earlier this year Senator Wyden, in a
speech at the Cato Institute Policy Forum, gave a presentation titled "Calls
for Modernizing Law, Providing Clarity on Geolocation: Cell phone and GPS
Technology Offer Easy Surveillance of Americans While the Law Protecting
Civil Liberties Lags Behind."
Senator Wyden spoke of the what he called the stunning lack of legal clarity
in digital intelligence gathering and ways to protect civil liberties
without upending personal safety - "It seems clear to me that the explosion
of portable electronic devices in our society and their ability to track
their owners' movements is a genuinely new phenomenon, and that this
phenomenon raises serious issues for intelligence gathering, law
enforcement, and the protection of individual privacy rights. The next
question to ask is, are our existing laws adequate for dealing with this
situation. I believe it is time to modernize the law in this area."
He offered six basic tenets of modernization:
1. - Providing clarity for the public, law enforcement officials and the
judicial system about what legal procedures and protections apply to
electronic devices that can be used to track individual's movements.
2. - Law requiring government agencies to show probable cause and receive a
warrant before acquiring the geolocation information of a person in the U.S.
Tracking someone's movements 24/7 is "a significant intrusion on their
privacy" and one that should not be done by meeting low or nonexistent
standards of evidence.
3. - Modernized laws should apply to acquiring geolocation information both
from personal cell phones and GPS units as well as devices covertly
installed by the government, such as a GPS unit attached to someone's car.
4. - Laws on geolocation tracking should give guidance to both law
enforcement and intelligence investigations.
5. - Need for updated rules to apply to real-time monitoring as well as the
acquiring of records of past movements, stating that without this step, some
government lawyers would be likely to argue that efforts to engage in real
time tracking were actually applications "for authorization to receive
five-second-old records of a person's movements on a constant rolling
6. - The law must extend these protections to all Americans, regardless of
whether or not they are located in the United States, a tenet that was also
reflected in a provision he added to the FISA Amendments Act of 2008
requiring intelligence agencies to get a warrant to deliberately target the
communications of Americans outside of the U.S.
During ISPLA's brief history it has successfully fought anti-surreptitious
video legislation, helped obtain and keep an "intent" provision which
effectively allows "spoofing" by investigators, continued to protect the use
of the SSN to preserve credit header access, and now will be expending
considerable effort and expenses lobbying in Washington to gain a suitable
exception for legitimate use of GPS by investigators for lawful purposes.
Frankly, this will not be easy to obtain, if at all, but we would be doing a
disservice to investigative and security professionals - and our clients -
if we did not try.
To help financially support the mission and continuing good work of ISPLA
feel free to join our efforts. Information about ISPLA may be found at
<http://www.ispla.org/> www.ISPLA.org telephone (734) 428-9663
Donations to our lobbying efforts may be sent to:
ISPLA - 235 N. Pine Street, Lansing, Michigan 48933
Bruce Hulme, Director of Government Affairs
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