Restrictions on GPS Data Use Considered in Congress

A bill that would limit the ability of law enforcement agencies to track the location of personal mobile devices was introduced last week and is moving along the legislative process on Capitol Hill.

The proposed Geolocational Privacy and Surveillance Act (GPS Act), H.R. 2168, co-sponsored by Sen. Ron Wyden, D-Ore., and Rep. Jason Chaffetz, R-Utah, is currently being reviewed by the House Judiciary Committee and the House Permanent Select Committee on Intelligence. The bill provides some clarity for police and other law enforcement officials about when geolocation data can be used and accessed.

In addition, the legislation would also give telecommunications companies guidance on whether they can share customer geolocation data.

“GPS technology is unquestionably a great tool, not just for Americans on the go and cellular companies offering services, but for law enforcement professionals looking to track suspects and catch criminals,” Wyden said in a statement. “But all tools and tactics require rules and right now, when it comes to geolocation information, the rules aren’t clear.”

If signed into law, the GPS Act would require law enforcement representatives to have probable cause and secure a warrant before acquiring the geolocational information of a “person,” which is defined in the bill as “any employee or agent of the United States, or any state or political subdivision thereof, and any individual, partnership, association, joint stock company, trust or corporation.” 

Earlier this year, draft legislation of the GPS Act was criticized by public safety advocates for a litany of reasons, from causing a “chilling effect” on officers from using GPS tracking, to not properly defining exceptions as to where tracking may occur.

Paul Wormeli, executive director emeritus at the Integrated Justice Information Systems Institute, told Government Technology in March that in the example of a kidnapping, if there’s a demand for ransom, most police departments in the U.S. would try and put a tracking device with the money to find out where a victim was being held.

“It’s a normal thing that police do all the time,” Wormeli explained regarding GPS tracking devices and using location data. “But you may not have time to get a warrant. Going to the [Foreign Intelligence Surveillance] Court in particular, there is a limited number of places you can do that.”

Wormeli added that a geolocation privacy law, if passed, could force law enforcement to figure out other ways to tail a person and “that puts the life of the victim in danger, so the consequences are quite serious for not having that tool.”

The GPS Act carves out an exception to needing a warrant in the case of geolocational information when it comes to missing children and kidnappers. But interestingly, in Section 2062(f)(2) of the law, it appears the bill does not contain a similar exception for the geolocational information of an alleged kidnapper, just the victim.

According to Wyden’s press release, the GPS Act also:

• applies to all law enforcement acquisitions of the geolocational information of individual Americans without their knowledge, including acquisition from commercial service providers as well as from tracking devices covertly installed by the government;

• applies to real-time tracking of a person’s movements, as well as the acquisition of records of past movements;

• closely tracks existing wiretapping laws with regard to court procedures for getting a warrant, penalties for acting without a warrant, exclusivity of the authority, authorization without a court order, etc.;

• creates criminal penalties for surreptitiously using an electronic device to track a person’s movements that parallel those for wiretapping; and

• prohibits commercial service providers from sharing customers’ geolocational information with outside entities without customer consent. 

Chaffetz said that while he thinks GPS and tracking technology is great, giving police and other officials free rein to keep tabs on someone’s location is another matter entirely.

“Quite frankly, government and law enforcement should not be able to track somebody indefinitely without their knowledge or consent, or without obtaining a warrant from a judge,” Chaffetz added in a statement.