When Maine enacted legislation last week banning law enforcement
officials from tracking individuals using cellphones or other
GPS-enabled devices, it became the second state to do so after Montana. A
similar effort failed in the Texas Legislature, but there is little
doubt that other states will also act if Congress fails to update the
statutes that govern access to digital communications.
One thing driving the states’ push for clear legal standards is
the uncertainty of the current law. Location data is not explicitly
addressed by the 1986 Electronic Communications Privacy Act (PL 99-508),
so instead law enforcement officials rely on elements of that law that
govern stored communications and other statutes.
The law can also vary depending where officials go to get the
data; a phone seized by police is subject to the Fourth Amendment, while
location data stored by a wireless service provider would be governed
Carriers often do not store GPS location data for individual
users and are unable to provide it. But law enforcement officials
frequently ask carriers to start compiling GPS data on individuals under
investigation, and the Justice Department typically seeks a warrant for
these cases. That’s in part because GPS data is recognized as highly
private because it offers granular insight into an individual’s
Providers, however, often keep records of a second type of
location data, which is less precise but can be used as an effective
means of tracking a phone’s location. Phones that place calls or use
data networks must use a nearby cell tower, and the location of the
towers that a particular phone has pinged can lend insight into a user’s
For historical location records based on cell tower data, law
enforcement seeks a court order, with a lower legal standard than the
probable cause required for a warrant. For prospective location
information based on cell tower locations, officials rely on a hybrid
order involving several statutes.
Some courts have found that hybrid order unsatisfactory and
have mandated a warrant for all prospective location data. A number of
pending cases are being litigated in federal courts that would test the
legality of the court orders, but experts believe legislation would be
needed to impose a new warrant requirement.
Regardless, if Congress doesn’t act, it is clear that many states are comfortable taking matters into their own hands.
Original Story >