House subcommittee considering geolocation privacy, some claim no warrant should be required
By End the Lie
In the House the battle over the Fourth Amendment and privacy rages yet again with some saying our constitutional rights should be upheld while others claim probable cause warrants would hinder police.
Currently, the debate surrounds geolocation data, which has been requested by the government more than ever.
Keep in mind, researchers have shown that future movements can be predicted using geolocation data from cellphones while the Obama administration claims location data is not constitutionally protected.
The House Subcommittee on Crime, Terrorism, Homeland Security, and Investigations recently heard testimony on proposed safeguards for geolocation privacy. One individual simply claimed that providing constitutional protections to location data would significantly hinder law enforcement.
These safeguards would deal with the collection and use of the extensive location data generated by cellphones and other devices, much of which is not currently protected.
Judiciary Committee Chairman Bob Goodlatte said that while he believes some current Department of Justice practices are encouraging, “current DOJ practices do not carry the same weight as federal statutes.”
Goodlatte said he was “encouraged to learn that the Department seeks a court order for every type of geolocation information it acquires. At a minimum, the Department obtains what is called a 2703(d) federal court order when it seeks historical cell site data on a particular cell phone. “
Unfortunately, 2703(d) court orders are granted if the government merely “offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.”
This, obviously, is not a probable cause warrant. Indeed, the United States Court of Appeals for the Fourth Circuit made that clear in ruling, “This is essentially a reasonable suspicion standard.”
Furthermore, subscribers or customers targeted by the order do not need to be given prior notice by the government and the Electronic Communications Privacy Act also known as the Stored Communications Act “provides for gag orders, which direct the recipient of a 2703(d) order to refrain from disclosing the existence of the order or investigation.”
Goodlatte claims that data acquired through these orders “only provides very general location information which can vary widely.”
However, as a Harvard Law Review article once pointed out, this data “could enable the government to place a person within fifty feet of her physical location,” and thus one judge “held that cell phones are ‘tracking device[s].’”
“On the other side of the spectrum, the Department of Justice obtains a search warrant from a federal judge when it seeks very accurate, real-time location information based on GPS satellite technology,” Goodlatte said.
“Such search warrants are based on probable cause, the same standard specified in the Fourth Amendment to our Constitution,” he added.
Yet, there is evidence indicating that is not quite accurate.
Indeed, federal agents may have deceived judges when obtaining authorization to use the secretive ‘Stingray’ surveillance tool. The Electronic Frontier Foundation has pointed out that the government has failed to even explain the technology to a federal judge and even misled a court about the fact that they’re using the technology.
According to the Electronic Privacy Information Center (EPIC), Stingray is one of the “surveillance technologies that facilitate real-time tracking of a mobile signal directly.”
Unsurprisingly, some individuals like Peter Modafferi, the Chief of Detectives for the Rockland County, New York District Attorney, claimed that warrants actually would make it “significantly more difficult to solve crimes.”
41-year police veteran Modafferi testified as the chair of the Investigative Operations Committee of the International Association of Chiefs of Police.
During his testimony, Modafferi told the subcommittee that “requiring probable cause in the initial stage of an investigation to gain access to geolocation information would make it significantly more difficult to solve crimes.”
“Some of this valuable evidence that is crucial in generating leads and ruling out suspects is in jeopardy if we are held to a probable cause standard to access every aspect of geolocation data,” Modafferi said, referring to the “digital evidence” that crime scenes are filled with.
“If we are constrained by a process that slows our progress in pursuing justice by extending the timeline of an investigation, the digital evidence at a crime scene may well go unexplored, evidence not be seized and analyzed, and our investigation will not meet our needs or the expectations of victims or civilized society as a whole,” Modafferi said.
“Requiring probable cause to get basic, limited information about a person’s historical location would make it significantly more difficult to solve crimes and seek justice,” Modafferi concluded.
In other words, the Fourth Amendment should be set aside simply because people like Modafferi claim it will slow their “progress in pursuing justice.”
EPIC, on the other hand, points out, “The current lack of protection for location data in unjustifiable given the state of technology and the Supreme Court’s decision in [United States v.] Jones.”
While EPIC notes that “courts are divided on whether such records are protected by the Fourth Amendment,” simply claiming that abiding by the Fourth Amendment would hinder investigations, as Modafferi has, simply does not stand up to scrutiny.
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