ISPLA Year-End Report on 2011 Federal Legislative Issues
- Investigative and Security Professionals for Legislative Action had great
success at the federal level in 2011. Although a number of bills were
introduced in the 112th Congress to amend federal surveillance laws, thus
far, none have passed.
Due to the rapid advances in technology Congress has attempted to address
conflicts between technological innovation and privacy interests. At the
same time the courts have been asked to resolve similar issues, particularly
to determine whether the Fourth Amendment's protection against unreasonable
searches and seizures precludes police agencies from placing a GPS tracking
device on a person's vehicle without a warrant. Pending before the U.S.
Supreme Court is the matter of United States v. Jones, 131 S. Ct.3064
(2011). It is our hope that the government wins. If not, our position is
greatly weakened in those states that presently allow GPS tracking use by
private sector investigators conducting lawful investigations. A loss by the
U.S. will adversely affect our lobbying efforts regarding laws proposed to
limit GPS use. Coupled to this issue are concerns of cell phone location
In New York, the matter of Michael Cunningham v. New York State Department
of Labor, New York Supreme Court, Appellate Division, Third Department No.
512036, in a 3-2 decision, the court ruled that the NYS Department of Labor
was within its rights when it utilized GPS tracking to follow an employee
during and after work hours and while on vacation with his family. It
dismissed the claims of Michael Cunningham, a former Labor Department
employee, that the use of a GPS tracking device constituted an illegal
search and seizure. The state relied on GPS data to show that Cunningham had
submitted false expense sheets and other travel records. The court ruled
that because the device was only monitored by an investigator during work
hours its use was constitutional. "To establish a pattern of serious
misconduct, it was necessary to obtain pertinent and credible information
over a period of time." In a dissenting opinion it was argued that while the
use of a GPS device to track employees suspected of misconduct is reasonable
during work hours, the scope of the use in Cunningham's caseundefined was
unconstitutional. "(The Labor Department's) valid interest in (Cunningham's)
whereabouts extended only to the hours of his workday, yet the device placed
on (his) personal vehicle collected data 24 hours a day, seven days a week."
A bipartisan bill S. 1212 and H.R. 2168, the Geolocational Privacy and
Surveillance Act, or GPS Bill, offered by Senator Ron Wyden [D-OR] and
Representative Jason Chaffetz [R-UT-3], seeks to clarify and establish the
standards government must meet to monitor an individual's movements. It
would effectively ban GPS use by private investigators without permission of
the vehicle's owner. The proposed legislation calls for a broad prohibition
against the disclosure or use of geolocation information making it unlawful
for any person to (A) intentionally intercept geolocation information
pertaining to another person; (B) Intentionally disclose geolocation
information pertaining to another person when it is known that information
was obtained in violation of the act; (C) intentionally use any geolocation
when it is known that information was obtained in violation of the act; or
(D) intentionally disclose information that was lawfully obtained under the
act, but not authorized to be released to third parties.
Under this GPS bill the government's only means for acquiring geolocation
information would be pursuant to a warrant under Rule 41 of the Federal
Rules of Criminal Procedure or the Foreign Intelligence Surveillance Act
(FISA) of 1978. The Stored Communication Act or Pen Register/Trap and Trace
Act would no longer be the method whereby such information is required.
In an emergency or exigent circumstances the police or emergency responders
are allowed to use geolocation information to a person requesting
assistance, such as a 911 call or where police "believe that the life or
safety of the person is threatened or to assist the person." There are other
permitted circumstances for such methods by the
US Attorney General and states' Attorneys General to intercept geolocation
information without a warrant. An exclusionary rule is also contained in
the GPS bill that no evidence acquired in violation of the act may be
received in evidence in any trial or judicial proceeding. This contrasts
between the ECPA which does not contain an exclusionary rule.
A coalition of industry representatives, including Apple, AT&T, and Google,
has joined with the ACLU and the Constitution Project to form the "Digital
Due Process Coalition to advocate amending various federal surveillance
laws. Senate Judiciary Chairman Patrick J. Leahy [D-VT] introduced S. 1011,
the Electronic Communications Privacy Act Amendments of 2011 which would not
only amend the 25-year old ECPA but the Stored Communications Act as well.
Representative Edward J. Markey [D-MA-7] in a December 2, 2011 letter to the
chairman of the Federal Trade Commission raised privacy issues and claims of
potential violations of Section 5 FTC "unfair or deceptive acts or
practices" concerning reported technology developed by Carrier IQ, a cell
phone monitoring provider. An item published in "Wired" magazine was an
impetus for Representative Markey's writing to the FTC. The effects of the
reported technology are apparently applicable to Android, BlackBerry and
Nokia users. Representative Markey's letter may be found at:
Wireless carriers will be claiming that the data of 150 million potential
users presently does not violate their privacy and the carriers' use of this
software is only to diagnose smartphone and network issues. Senator Al
Franken [D-MN] chairs the Senate Privacy Subcommittee and has also entered
into the fray. Earlier in 2011, he held hearings on the S. 1223, the
Location Privacy Protection Act of 2011. a bill he cosponsored with Senator
Richard Blumenthal [D-CT]. There has been speculation that the FBI may be
handling an investigation regarding Carrier IQ.
A class action lawsuit has also been filed in the USDC for the District of
Delaware in Pacilli et al v. Carrier IQ, Inc. et al. The complaint may be
There are numerous other bills pending, as well as proposed FTC regulations,
regarding Internet tracking and keystroke monitoring about which ISPLA has
reported throughout 2011 to members via email listservs. As we enter the
Second Session of the 112th Congress, we can expect more action from
Representative Markey, who also co-chairs the bipartisan Congressional
Privacy Caucus. He has been outspoken on providing privacy protections of
personal consumer information. He is a longtime advocate of "opt-in"
remedies. He has investigated the data privacy and security practices of
Amazon, Apple, Facebook, and Google, and the four major wireless carriers as
well as the Social Security Administration. He is our profession's "Nemesis"
with a history of refusing to negotiate with private investigators regarding
our concerns. Expect to hear more from him in 2012!
The following link provides the December 1, 2011 Congressional Research
Service report entitled Governmental Tracking of Cell Phones and Vehicles:
The Confluence of Privacy, Technology, and the Law.
The writer of the CRS report in his conclusion states: "Congress, the
courts, and the people will continue to grapple with 'what limits there are
upon [the] power of technology to shrink the realm of guaranteed privacy.'
.Several Members of Congress have introduced legislation to mend this
perceived problem, and overhaul the current federal regime."
We anticipate that in 2012 privacy legislation interest will remain strong
with reports of security information breaches and Identity theft continuing
to remain in the headlines. We expect that the Rupert Murdoch fiasco over
tapping cell phone messages in the UK may become a larger problem for our
profession here in the U.S. with DOJ investigators focusing on the possible
the Foreign Corrupt Practices Act, violations of FCC licensing regulations
possibly affecting Fox News, and Congressional hearings scheduled to be
Rest assured that ISPLA is well aware of these and other issues. We will
continue to address them. We are grateful to the professional associations
that have acknowledged our legislative efforts at the federal level these
past three years. Recently allocated donations by ALDONYS of $2500 and an
additional $2500 from its Security Guard Company Committee, $2000 from PALI,
$1000 from NJLPIA and $500 from INTELLENET are truly appreciated. It is
through such support, and from our individual members, that we have financed
our state and federal legislative tracking systems, maintained Federal
Election Commission compliance of our political action committee,
professionally executed the effective federal Washington lobbying campaign
of our volunteers, and achieved continuing successful results. Thank you!
Bruce Hulme, ISPLA Director of Government Affairs
To further help support our good work -- please go to: www.ISPLA.org
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- We are looking for a latent print examiner in the Midwest to review a partial print in a post conviction proceeding.
Please contact me by email at csmithlaw@... if interested. I will email a copy of the print in question and the facts of the case.
Iowa Paralegal Services
116 East 6th Street
Davenport, IA. 52803
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