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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Filed Under: 4th amendment, emergencies, exceptions, kelsey smith, kelsey smith act, law enforcement, location info, subpoena, warrants

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  1. 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?

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