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ISPLA Year-End Report on 2011 Federal Legislative Issues

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  • Peter Psarouthakis
    Investigative and Security Professionals for Legislative Action had great success at the federal level in 2011. Although a number of bills were introduced in
    Message 1 of 2 , Jan 5, 2012
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      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
      tracking.



      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:



      <http://markey.house.gov/docs/2011_1201_letter_to_ftc.pdf>
      http://markey.house.gov/docs/2011_1201_letter_to_ftc.pdf



      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
      found at:




      <http://www.siannistraite.com/sites/default/files/Carrier%20IQ%20Class%20Act
      ion%20Complaint%202%20DEC%202011FINAL.pdf>
      http://www.siannistraite.com/sites/default/files/Carrier%20IQ%20Class%20Acti
      on%20Complaint%202%20DEC%202011FINAL.pdf



      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.



      <http://www.fas.org/sgp/crs/intel/R42109.pdf>
      http://www.fas.org/sgp/crs/intel/R42109.pdf



      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
      held.



      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
      <http://www.ispla.org/>





      [Non-text portions of this message have been removed]
    • Craig @ MSN
      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
      Message 2 of 2 , Jan 6, 2012
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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.

        Craig Smith
        Iowa Paralegal Services
        116 East 6th Street
        Davenport, IA. 52803
        (563) 726-3162

        [Non-text portions of this message have been removed]
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