By Carl Tobias |
When you subscribe to a service like OnStar, carry a smartphone in your pocket, or utilize a GPS device, you receive services no generation before you has ever known—the ability to see where you are on a map, get directions to where you want to go, or find someone who is lost. With those modern conveniences come new questions about who gets to see that information and under what circumstances.
No one wants their every move surreptitiously monitored without permission—whether it be by law enforcement, a spurned partner, or a company collecting marketing data. Given the legal ambiguities associated with modern technology, we must update and clarify the law.
With that in mind, I recently introduced the Geolocation Privacy and Surveillance Act. The bill creates a legal framework designed to give government agencies, commercial entities, and private citizens clear guidelines for when and how geolocation information can be accessed and used.
Recently, the U.S. Supreme Court ruled unanimously that physically attaching a GPS device to a vehicle constituted a search under the Fourth Amendment. Many law enforcement agencies have responded by requiring their officers to obtain probable cause warrants before placing GPS devices on vehicles.
However, the court stopped short of requiring a warrant for all geolocation information, including that obtained from other devices or methods such as smartphones or OnStar systems. The justices laid down the broad principle that location tracking without a warrant constitutes a search under the Fourth Amendment. It is now up to Congress to enact a comprehensive statute to fill in the details.
The GPS Act would require the government to show probable cause and get a warrant before acquiring the geolocational information of a U.S. person, while setting out clear exceptions such as emergency or national security situations or cases of theft or fraud.
The warrant and probable cause requirements are essential components of the Fourth Amendment. The function of the warrant clause is to safeguard the rights of the innocent by preventing the state from conducting searches solely at its discretion. Without these requirements, the low cost of collecting and storing geolocational information would permit someone to continuously track any driver or cellphone user.
The warrant requirement places no great burden on the state. Under the GPS Act, obtaining warrants for geolocational information would be less burdensome than obtaining them for wiretaps. And the privacy implications are at least as grave.
As the D.C. Circuit Court of Appeals put it, "[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."
Requiring law enforcement to show probable cause and obtain a warrant before accessing such personal and private information is reasonable and appropriate. It is the job of Congress to protect and defend the U.S. Constitution and the personal liberties provided to American citizens under the Fourth Amendment. The GPS Act is an important update to our laws that would ensure Americans' rights are preserved in the face of changing technology.
About Jason Chaffetz U.S. Representative from Utah
Ron Wyden U.S. Senator from Oregon
Catherine Crump Staff Attorney with the American Civil Liberties Union's Speech, Privacy & Technology Project
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