Bad Bill Would Create A Nationwide Exception To Subpoena And Warrant Requirements For Cellphone Location Data

from the STOP-TRYING-TO-HELP dept

It's a law named after a crime victim, so you already know it's going to be questionable. Federal lawmakers are floating a bill aimed at undermining some of the Fourth Amendment just handed back to us by the Supreme Court. At stake is cell site location info, although in a much more limited amount and in much more limited form. The EFF's Dave Ruiz has more details.

The Kelsey Smith Act (H.R. 5983) tries to correct a tragedy that occurred a decade ago by expanding government surveillance authorities. It is a mis-correction.

The bill would force cell phone companies to disclose the location of a person’s device at the request of police who believe that person is in distress. On its face, that’s not unreasonable. But if the police make a mistake—or abuse their power—the bill offers almost no legal recourse for someone whose location privacy was wrongfully invaded.

This law is named after Kelsey Smith, who was murdered more than a decade ago. Police approached Verizon asking for her cellphone's current location, only to be told they needed to get a subpoena. By the time police had obtained that, Smith was already dead -- killed the same day she was kidnapped. As Ruiz points out, Kansas lawmakers immediately carved out an emergency exception for cell location ping orders, stripping away subpoena requirements. This bill would extend that to all 50 states.

The problem is the bill's wording, which would eliminate privacy protections granted to Americans under the nebulous heading of "emergency." The bill's language contains an expansive definition for the new subpoena/warrant exception, which would definitely cover no one idea of an emergency.

The Kelsey Smith Act allows law enforcement agents to access the location of any cell phone that has dialed 9-1-1 for emergency assistance in the last 48 hours. Almost by definition, that’s not an emergency. Emergencies are of-the-moment crises, requiring immediate responses. If you call 9-1-1 today to request emergency assistance, law enforcement shouldn’t be able to get your location information 48 hours later without showing that the call relates to a current emergency.

At this point, service providers can make judgment calls on demands for location info. A provider can demand a subpoena or warrant first, even if law enforcement claims it's an emergency. These assessments are made on behalf of their customers, protecting their privacy against needless intrusion. If the police need the info, they have the burden of showing cause. This bill would do more than simply reverse the burden of proof. It would do away with it completely, forcing service providers to turn over info any time an officer states it's an emergency.

The problem with granting law enforcement a longer leash in these cases is they've been shown to abuse the permissions they already have. The EFF's post contains statements from the ACLU's Nate Wessler about abuse of emergency exceptions in police departments all over the nation, used in criminal cases involving no real emergencies.

But that's not all. The Justice Department's watchdog has uncovered systemic abuse of the same exceptions by federal officers.

In a 2010 report, the Department of Justice’s Inspector General found systemic misuse of emergency requests for call record information by the FBI. The report found that emergency requests were used in entirely non-life-threatening situations, including three “media leak investigations,” one of which resulted in the collection of telephone records from Washington Post and New York Times reporters.

While nominally limited to phones that have dialed 9-1-1, the exception encourages officers to think outside the Fourth Amendment's box and use the paperless route whenever possible. This isn't speculation. This is what's already happening. At this point, it's still mainly up to service providers to fend off BS demands for location data. If this bill passes, the last barrier will be torn down, turning service providers into unofficial extensions of law enforcement agencies.


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  • icon
    Uriel-238 (profile), 23 Jul 2018 @ 2:03pm

    Sounds like the prisons aren't full enough.

    It sounds like our legislators want to fill up the jail cells with more people who committed CFAA felonies. (For those new to TD that would be all of us at a rate of about three a day.)

    Our Department of Justice has already established that the public is the enemy, that we are all bad people who just need to be proven guilty of crime.

    It's already being used to sweep the minorities and undesirables into incarceration. Dissidents next?

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

  • identicon
    Anonymous Coward, 23 Jul 2018 @ 2:10pm

    Oh hey, a reason to use ResistBot.

    My congressional representatives have received a letter indicating my displeasure with this bill. If you're not in favor of this bill, recommend you all take similar action.

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

  • identicon
    Anonymous Coward, 23 Jul 2018 @ 2:38pm

    how long before a cop dials 911 on a suspect phone?

    Most phones allow emergency calls even when locked, so what's to stop an enterprising officer from dialing 911 on the phone in their possession, then allowing them to target the individual (but this would NEVER happen).

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

    • identicon
      Anonymous Coward, 23 Jul 2018 @ 2:49pm

      Re: how long before a cop dials 911 on a suspect phone?

      If they have the phone, but not the owner, all they can do is locate themselves, and get historic location data. That will not help them find the phones owner to rescue them.

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

      • identicon
        Anonymous Coward, 23 Jul 2018 @ 4:58pm

        Re: Re: how long before a cop dials 911 on a suspect phone?

        Yeah... if police were only interested in the well-being of their communities, then this wouldn't be so bad. :\

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

      • identicon
        Bruce C., 23 Jul 2018 @ 7:01pm

        Re: Re: how long before a cop dials 911 on a suspect phone?

        The article isn't clear if the bill only gives access to current location data if 911 has been dialed in the past 48 hours (explicitly stated), all location data since the 911 call was placed (if within the past 48 hours), or all location data during the past 48 hours as long as there has been a 911 call during that time period.

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

      • identicon
        Anonymous Coward, 23 Jul 2018 @ 8:20pm

        Re: Re: how long before a cop dials 911 on a suspect phone?

        What if they want info on where they have been?

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

    • identicon
      Anonymous Coward, 24 Jul 2018 @ 3:23pm

      Re: how long before a cop dials 911 on a suspect phone?

      Been there, already done that :)..I recall a TD article from 2016 titled:

      Court Says Cop Calling 911 With Suspect's Phone To Obtain Owner Info Is Not A Search

      Link: https://www.techdirt.com/articles/20160721/09041435027/court-says-cop-calling-911-with-suspects-phon e-to-obtain-owner-info-is-not-search.shtml

      I realize this involves what is "Not a Considered a Search".

      Lately it just feels like...PRIVACY Is not for the 'rest of us'

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

      • icon
        Uriel-238 (profile), 24 Jul 2018 @ 3:59pm

        Not for the 'rest of us

        Privacy is not for us proles. Nor are rights.

        Nor is the law. They'll bust you for whatever, seize your stuff and if you can't afford a lawyer, tough titties. (The public defender appointed to you is grossly overworked and underpaid.)

        If they really want to get you, they'll seize your assets and freeze your accounts in hopes that will stop you from lawyering up.

        Because rights and justice are what get in the way of their loot. And their credit for putting warm bodies in prison.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 23 Jul 2018 @ 4:18pm

    Oh, did you REALLY believe that trove will be let alone?

    You kids are always talking about people who don't understand the ramifications of "technology", and you still dream that gov't / corporations are just going to let you live privately? How quaint.

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

    • identicon
      Anonymous Coward, 23 Jul 2018 @ 5:04pm

      Oh look you’re still here. How stupid.

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

    • identicon
      Anonymous Coward, 24 Jul 2018 @ 8:01pm

      Re:

      You cheer on government and corporate surveillance for copyright enforcement while bitching that people give them money... then demand that we give them money.

      Someone's in a state of non-understanding, blue boy...

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

  • icon
    That One Guy (profile), 23 Jul 2018 @ 5:36pm

    'Emergency' according to WHO?

    In a 2010 report, the Department of Justice’s Inspector General found systemic misuse of emergency requests for call record information by the FBI. The report found that emergency requests were used in entirely non-life-threatening situations, including three “media leak investigations,” one of which resulted in the collection of telephone records from Washington Post and New York Times reporters.

    Come now, just because there's evidence showing abuse of 'emergency' clauses to bypass warrant requirements does't mean that said abuse would skyrocket should a law be put in place enshrining the 'emergency clause' in law.

    Just because abuse has been confirmed in the past doesn't mean it will continue and grow in the future if made even easier, right?

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

  • icon
    Eldakka (profile), 23 Jul 2018 @ 9:25pm

    Surely if it is truly an emergency, getting a warrant could be done in less than an hour?

    I understand that run-of-the-mill warrants could take a day or 2 to fill out the paperwork, get approval from the police's internal processes to get it submitted to a judge, get put on the judges 'todo' list which they'll look at after they've finished current activities such as the trials/hearing they are conducting today, and so on.

    But if it's truly an emergency, surely a senior police officer (e.g. a Captain, Chief Inspector, or whatever level is above them) would personally take a warrant application to the local courthouse, walk through the corridors/chambers in person and find any judge who is available - even interrupting a current proceeding - to get it signed?

    I mean, if they aren't willing to do that, is it really an emergency?

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

  • identicon
    Anonymous Coward, 23 Jul 2018 @ 9:32pm

    Easy workaround

    If you're on the AT&T or T-Mobile networks, next time you have an emergency, remember to try the new number: 1-1-2.

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


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