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.

Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

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


Reader Comments

Subscribe: RSS

View by: Time | Thread


  1. 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.


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Special Affiliate Offer

Essential Reading
Techdirt Insider Chat
Recent Stories

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it
Close

Email This

This feature is only available to registered users. Register or sign in to use it.