By Carl Tobias |
Congress should pass the Geolocational Surveillance and Privacy Act. Requiring law enforcement agents to secure a warrant based on probable cause before obtaining geolocational information from cell phones and by attaching GPS devices to cars would allow legitimate investigations to proceed, while ensuring that innocent Americans are protected from intrusions into their privacy.
Americans carry their cell phones with them wherever they go, and most of us depend on cars for transportation. Where people travel can reveal a great deal of information about them. It can show what political and civic organizations they patronize, what medical professionals they visit, and their network of friends and acquaintances. Especially when location is tracked over a prolonged period of time, this information can be put together to reveal a detailed portrait of how a person has chosen to lead his or her life.
This is not the sort of information that law enforcement agents should be able to obtain without having to explain their demand to a judge. Nor does the Constitution allow them to do so. That is even clearer after the Supreme Court's decision this year in United States v. Jones, in which five justices concluded that prolonged tracking of a GPS device attached to a person's car violates a reasonable expectation of privacy under the Fourth Amendment. If tracking someone's car is a search under the Fourth Amendment, then surely tracking a device such as a cell phone that people have with them at all times is covered as well. And because of the invasive nature of the search, it should be deemed the kind of search that requires a warrant.
To be sure, in some limited cases the police will not have enough time to obtain a warrant. Where there are such exigent circumstances, such as a search for a missing person, no warrant should be required. But for the far more common scenario of a routine law enforcement investigation, a warrant should be mandatory.
Unfortunately, today warrantless geolocation tracking is widespread. To take cell phone tracking as an example, this spring the American Civil Liberties Union released records from over 200 police departments around the nation revealing that cell phone tracking often occurs under lax legal standards. Our police departments cannot be counted on to police themselves. Congress should pass the GPS Act to ensure that as technology advances, our civil liberties keep pace.
About Catherine Crump Staff Attorney with the American Civil Liberties Union's Speech, Privacy & Technology Project
Ron Wyden U.S. Senator from Oregon
Jason Chaffetz U.S. Representative from Utah
Jennifer S. Granick Director of Civil Liberties at the Center for Internet and Society
Trey Gowdy U.S. Representative from South Carolina
Joseph I. Cassilly Former President of the National District Attorneys Association