New Hampshire Legislators Propose Law Banning Warrantless Use Of Tracking Devices

from the incremental-change dept

New Hampshire is continuing to lead the way in privacy. After becoming the first state to ban the use of automatic license plate readers, its legislators are now attempting to rein in warrantless tracking of cellphone users. A couple of false starts (dating back to last year) resulted in no changes (and complaints from app makers that the wording might make some of their offerings illegal).

But it now appears to be moving forward again after the implementation of some changes. The heart of the bill is this paragraph:

No government entity shall place, locate, or install an electronic device on the person or property of another, or obtain location information from such an electronic device, without a warrant issued by a judge based on probable cause and on a case-by-case basis.
As Watchdog.org points out, the spirit of the law is somewhat undermined by the letter of the law.
There are noteworthy exceptions, many of which appeared in previous iterations.

Tracking is permitted without a warrant with the informed consent of a device owner, unless the owner knowingly loaned it to a third party. You can track calls for 911 emergencies. A parent or legal guardian can provide informed consent to locate a missing child. The government can track its own property or employees in possession of that property. And alcohol ignition interlock control devices placed by court order would also be traceable without a warrant.
The other problem with the bill is a problem with all bills introduced by state legislators: it can't lock out federal intrusion, at least not in its present form. The bill states that it does not apply to "federal government agencies." So, if local law enforcement wants to engage in warrantless tracking of cellphones, all it has to do is partner up with a federal agency.

On top of that, there are the loopholes that have always been exploited. Stingray use -- one method of tracking location -- has routinely been hidden under more innocuous paperwork, like pen register orders. Obtaining cellphone records -- including location data -- is primarily done with subpoenas, considering most laws still treat these as third-party business records. While the law would force some of the latter requests to take the form of a search warrant, it doesn't make a clear distinction between real-time tracking and historical data.

What it does appear to outlaw is the warrantless, real-time tracking of GPS location, meaning tracking devices can only be deployed after obtaining a warrant. This is certainly a step forward, one perhaps partially prompted by the Supreme Court's US v. Jones decision. However, this would go against precedent in the First Circuit Court (which covers New Hampshire), which has found that warrantless GPS tracking devices may constitute a "search," but not to the extent that a lack of a warrant should automatically result in suppression of evidence. (Also somewhat aligned with the Supreme Court's reluctance to declare all GPS tracking worthy of a warrant.)
The court then held that it was reasonable for the agents to use the GPS device in Sparks’ case based upon reliance on clear precedent.

However, the court noted that they did not decide the issue of whether any exceptions to the warrant requirement exist for future installation use of the GPS device to monitor suspect’s movements. Therefore, future use of such GPS monitoring is governed under the United States v. Jones.

As such, the court of appeals affirmed the denial of the motion to suppress.
Although this case appeared before the judges after the Supreme Court's US v. Jones decision, the events of the case proceeded that finding. This may change rulings in the future, but for now, the First Circuit has not made it expressly clear that tracking devices require warrants.

As the proposed law pertains to physical tracking devices, it's much more closely aligned with the Supreme Court's decision. Left unclear is its application to Stingray devices and obtaining historical cell site location information from telcos -- both forms of "tracking" that don't involve attaching a monitoring device to a "person or property."

Filed Under: 4th amendment, devices, new hampshire, warrantless tracking, warrants


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  • identicon
    Anonymous Coward, 19 Jun 2015 @ 6:14pm

    Question about lawful wording...

    "No government entity shall place, locate, or install an electronic device on the person or property of another, or obtain location information from such an electronic device, without a warrant issued by a judge based on probable cause and on a case-by-case basis."

    Does the 'such an electronic device' refer to the strict definition earlier in this sentence, that being any 'electronic device' that can be 'place(d), locate(d), or install(ed) .. on the person or property of another'?

    Is it possible to place a stingray on somebody? Strap it to them like a backpack, and certainly it seems so.

    Does 'such an electronic device' constitute the device regardless of if it was placed, located or installed?

    Does 'located' refer to owned devices on one's person where the device's data, as well as physical position, can be 'located', i.e. cell phone GPS?

    It says the government entity cannot 'obtain' location information from such an electronic device. Does this mean it also cannot obtain this data from a third party, such as your cell phone carrier, without a warrant issued by a judge based on probable cause?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Jun 2015 @ 8:09pm

    > Tracking is permitted without a warrant with the informed consent of a device owner, unless the owner knowingly loaned it to a third party.


    Beware, they're not bullshitting when they say this! I accepted a free collect call from the county jail one time on my cellphone. I've been GPS tracked ever since. It's been close to a year now since I accepted the collect call from my friend needing a ride home from jail.

    I had to press a button in order to accept the free call. The recording said something about 'consenting to location tracking', but I didn't think anything of it at the time. My friend needed help so I pressed the button.

    It started out with the GPS icon on my phone only flashing when the friend I gave a ride home from jail would call me. Now I'm also noticing the GPS icon flashing when I call my banking services.

    It's creepy, but I wanted to let other people know that once you accept a collect call from jail, even a free collect call, you really are signing away your privacy rights and will be GPS tracked like an animal for life. Even if you've never been arrested and are a law-abiding citizen.

    reply to this | link to this | view in chronology ]

  • icon
    Mason Wheeler (profile), 20 Jun 2015 @ 6:51am

    As Watchdog.org points out, the spirit of the law is somewhat undermined by the letter of the law.
    There are noteworthy exceptions, many of which appeared in previous iterations.

    Tracking is permitted without a warrant with the informed consent of a device owner, unless the owner knowingly loaned it to a third party. You can track calls for 911 emergencies. A parent or legal guardian can provide informed consent to locate a missing child. The government can track its own property or employees in possession of that property. And alcohol ignition interlock control devices placed by court order would also be traceable without a warrant.

    I don't see how any of these things undermine the spirit of the law, which is that warrantless surveillance of criminal suspects is a bad thing, since none of these exceptions are about the surveillance of criminal suspects. The closest one would be the breathalyzer one, but such a person isn't a suspect; it's someone who's already been caught doing something that recklessly puts at risk the lives of everyone around them, and as such has shown themselves unworthy of the same level of trust as ordinary, law-abiding citizens.

    Where's the problem with these exemptions, then?

    reply to this | link to this | view in chronology ]

  • identicon
    Tom Czerniawski, 20 Jun 2015 @ 7:53am

    What's the 4th amendment for again?

    reply to this | link to this | view in chronology ]

  • icon
    OldMugwump (profile), 20 Jun 2015 @ 9:15am

    New Hampshire is special

    New Hampshire has 400 state representatives, with a population of only 1.3 million people. That's 3200 people per rep (maybe 2000 voters).

    They can afford this by paying them $100/year each. Plus mileage to Concord (the capital).

    So - no professional politicians in the legislature.

    See what a difference that makes?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Jul 2015 @ 2:31am

    "The government can track its own property or employees in possession of that property."

    So they can put a GPS device on your car and then track it.

    reply to this | link to this | view in chronology ]


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