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ISPLA News: Another GPS Bill, DOJ Asks Supreme Court to Rule GPS Warrant Not Needed.......

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  • Peter Psarouthakis
    S 1223, the Location Privacy Protection Act, has been introduced by Senators Al Franken [DN], chairman of the Judiciary Subcommittee on Privacy, Technology and
    Message 1 of 1 , Jun 20, 2011
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      S 1223, the Location Privacy Protection Act, has been introduced by Senators
      Al Franken [DN], chairman of the Judiciary Subcommittee on Privacy,
      Technology and the Law, and Richard Blumenthal [D-CT]. The bill would
      require companies like Apple and Google, as well as application developers,
      to obtain express consent from users of mobile devices like smartphones and
      tablets before sharing information about those users' location with third
      parties. The bill would also close current loopholes in federal law to
      ensure that consumers know what location information is being collected
      about them and allow them to decide if they want to share it. ISPLA has
      previously reported on hearings held by Senator Franken regarding this topic

      Sen. Franken has stated: "Geolocation technology gives us incredible
      benefits, but the same information that allows emergency responders to
      locate us when we're in trouble is not necessarily information all of us
      want to share with the rest of the world. This legislation would give people
      the right to know what geolocation data is being collected about them and
      ensure they give their consent before it's shared with others."

      The bill is endorsed by the Center for Democracy and Technology, Consumers
      Union, the National Association of Consumer Advocates, the National Center
      for Victims of Crime, National Consumers League, the National Network to End
      Domestic Violence, the National Women's Law Center, and the Minnesota Public
      Interest Research Group.

      To read a one-page summary of the legislation:


      <http://franken.senate.gov/files/docs/110614_The_Location_Privacy_Protection
      _Act_of_2011_One_pager.pdf>
      http://franken.senate.gov/files/docs/110614_The_Location_Privacy_Protection_
      Act_of_2011_One_pager.pdf


      Last year, Sen. Franken pressed Attorney General Eric Holder to incorporate
      an analysis of geotags-information about a person's location that is
      embedded in photos and videos taken with GPS-equipped smartphones-into an
      updated stalking victimization study connected to the National Crime
      Victimization Survey. This past March, he along with several Senate
      colleagues, urged Facebook to stop plans that would have permitted third
      party application providers to access users' home addresses and phone
      numbers. In April, he asked the U.S. Department of Justice to clarify its
      interpretation of a federal law that protects personal data after a security
      breach at Epsilon Data Management and allegations that several popular
      smartphone applications were gathering and disclosing users' private
      information without their knowledge or consent. ISPLA reviewed this 16-page
      bill and is meeting with sponsors regarding it and another GPS tracking
      bill.

      DOJ Asks Supreme Court to Rule GPS Warrant Not Needed

      Meanwhile, the Department of Justice has asked the U.S. Supreme Court to
      rule that police do not need a warrant to use the Global Positioning System
      to track the movements of suspects. The Court is expected to decide on
      Thursday if it will take this case. DOJ will argue a warrant is not needed
      even if future "scientific enhancements" or an aggregation of devices is
      used. But the question will be "Can law enforcement use the technology
      without a warrant in a constitutional way?"

      The American Civil Liberties Union says GPS technology is just too
      "invasive" to be used without a warrant. They argue that an appeals court
      decision is on point:

      "'A person who knows all of another's travels can deduce whether he is a
      weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful
      husband, an outpatient receiving medical treatment, an associate of
      particular individuals or political groups -- and not just one such fact
      about a person, but all such facts.'"



      ISPLA has previously discussed a case involving one Antoine Jones, who owned
      and operated a DC nightclub and was suspected of narcotics violations. Law
      enforcement agents obtained a warrant from a federal judge in Washington
      authorizing surreptitious installation and monitoring with a GPS tracking
      device on the Jeep Grand Cherokee of Jones -- as long as it was installed
      within 10 days and only within the District of Columbia. However, it did not
      get installed until 11 days after the warrant was issued. Furthermore,
      although installed in a Maryland public parking lot, it was not installed in
      DC.

      Agents tracked the Jeep to the vicinity of a suspected drug stash house in
      Fort Washington, MD where they recovered approximately 97 kilograms of
      powder cocaine, one kilogram of crack cocaine, and $850,000 in cash. Jones
      was indicted for conspiring to distribute 5 kilograms or more of cocaine and
      50 grams or more of cocaine base, and 29 counts of using a communications
      facility to facilitate a drug-trafficking offense.

      Before trial, his defense lawyers moved to suppress the data from the GPS
      tracking device. A federal judge ruled that any information gleaned while
      the Jeep was on public roads was admissible, but any data obtained while the
      Jeep was in Jones' garage was not.
      He was acquitted of some charges and the jury was unable to reach a verdict
      on others.

      Then a new federal grand jury, in a superseding indictment, charged Jones
      with a single count of conspiracy to distribute and possess 5 kilograms of
      cocaine and 50 grams or more of cocaine base. After a second trial which
      involved using GPS information obtained while the Jeep was moving, Jones was
      convicted of the sole count, sentenced to life in prison and ordered to
      forfeit $1 million in proceeds from drug trafficking. However, the U.S.
      Court of Appeals for the District of Columbia reversed the conviction.

      An appeals court panel conceded that the Supreme Court said in the 1983 case
      U.S. vs. Knotts when police placed a beeper inside a container of chemicals
      in order to track it, it was not a search within the meaning of the Fourth
      Amendment because someone "traveling in an automobile on public
      thoroughfares has no reasonable expectation of privacy in his movements from
      one place to another."

      The Fourth Amendment says, "The right of the people to be secure in their
      persons, houses, papers, and effects, against unreasonable searches and
      seizures, shall not be violated, and no warrants shall issue, but upon
      probable cause, supported by oath or affirmation, and particularly
      describing the place to be searched, and the persons or things to be
      seized." That said, the courts have also ruled the Fourth Amendment's
      protections extend only to places where there is a "reasonable expectation
      of privacy" -- not in places such as airports, for example, where passengers
      are searched before boarding an airplane.

      The appeals court said Knotts was not the controlling precedent, because
      officers in that case monitored a "discrete journey" of 100 miles, where in
      the Jones case police were conducting monitoring of a vehicle over several
      weeks. The Knotts ruling also did not answer the question whether a warrant
      would be required before police could use electronic devices as part of a
      "dragnet-type law enforcement," such as "24-four hour surveillance." The
      appeals court noted that two other U.S. courts of appeal in different
      circuits have ruled that prolonged GPS monitoring without a warrant did not
      violate the Fourth Amendment. It said that Jones has a reasonable
      expectation of privacy in the public movements of his Jeep over the course
      of a month, because he had not exposed the "totality" of those movements to
      the public -- "the whole of a person's movements over the course of a month
      is not actually exposed to the public because the likelihood a stranger
      would observe all those movements is essentially nil." It concluded that a
      reasonable person "does not expect anyone to monitor and retain a record of
      every time he drives his car, rather, he expects each of those movements to
      remain disconnected and anonymous."

      Seven states have enacted laws requiring the government to obtain a warrant
      before using GPS technology. The appeals court rejected the government's
      argument that the "automobile exception" to the Fourth Amendment's warrant
      requirement -- generally used in traffic stops -- saying "the automobile
      exception permits the police to search a car without a warrant if they have
      reason to believe it contains contraband; the exception does not authorize
      them to install a tracking device on a car without the approval of a neutral
      magistrate."

      After the panel's ruling, the Obama administration asked the full appeals
      court to hear the case, but was rejected. It then asked the U.S. Supreme
      Court for review. Noting the conflict in rulings by several appeals courts,
      the government's petition states - "Prompt resolution of this conflict is
      critically important to law enforcement efforts throughout the United
      States. The court of appeals' decision seriously impedes the government's
      use of GPS devices at the beginning stages of an investigation when officers
      are gathering evidence to establish probable cause and provides no guidance
      on the circumstances under which officers must obtain a warrant before
      placing a GPS device on a vehicle."

      "Given the potential application of the court of appeals' 'aggregation'
      theory to other, non-GPS forms of surveillance, this (Supreme) Court's
      intervention is also necessary to preserve the government's ability to
      collect public information during criminal investigations without fear that
      the evidence will later be suppressed because the investigation revealed
      'too much' about a person's private life."

      The petition further states: "This (Supreme) Court has held (in Knotts) that
      a 'search' within the meaning of the Fourth Amendment occurs only where a
      'legitimate expectation of privacy' has been invaded by government action.
      ... As a result, 'what someone 'knowingly exposes to the public is not a
      subject of Fourth Amendment protection.'" Our hope is that the government's
      position prevails before the Supreme Court. Should it rule that a warrant
      is necessary then it is unlikely we cam make our case before Congress for an
      exception for use of GPS tracking devices in lawful investigations.

      And the breaches go on:

      ISPLA monitored the hearings held by Representative Mary Bono Mack
      [R-CA-45]. Since then, Sega Corp, a division of Japanese video game
      developer Sammy Holdings, has acknowledged that personally identifying
      information of 1.3 million customers has been stolen from its database.
      This is the latest in a number of recent data security breaches, such as
      Sony Play Station, Apple, Citigroup, Epsilon, and the International Monetary
      Fund, that has prompted the introduction of numerous federal data breach and
      ID theft bills in recent weeks. Lulz Security, a hacker group involved in
      some of the forgoing breaches, has also publicly acknowledged hacking into
      the CIA, InfraGard and U.S. Senate websites in the U.S., as well as foreign
      government ones.

      In recent weeks and months ISPLA has reported on numerous bills offered in
      the House and Senate to address these issues - Secure and Fortify Electronic
      Data Act or Safe Data Act, Personal Data Privacy and Security Act, Consumer
      Protection Privacy Act, Data Accountability and Trust Act, Do Not Track Kids
      Act, Commercial Privacy Bill of Rights Act, and the Gelocational Privacy and
      Surveillance Act.

      We are grateful to the professional associations that have supported our
      lobbying work in Washington, DC. Without their support we could not easily
      continue our sole mission - representing the best interests of investigative
      and security professionals on regulatory and legislative issues. Although
      there are a number of national associations also lobbying the above issues,
      only ISPLA is presently addressing the issue of GPS tracking which affects a
      segment of investigators. One investigative professional association
      lobbying group views opposing such bills as a "Quixotic" effort. However,
      ISPLA has successfully lobbied to legalize such investigative techniques
      before state legislatures. We will take the same approach at the federal
      level, although we admit it will not be easy to achieve similar results. We
      welcome support from our individual colleagues - by joining ISPLA -- and if
      possible, financially supporting our efforts.

      To join and support the good work of ISPLA please visit
      <http://www.ispla.org/> www.ISPLA.org

      Bruce Hulme, ISPLA Director of Government Affairs

      Your Proactive Voice from State Capitols to the Nation's Capitol



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