Cellphone location records are lumped under Title 1 and Title 2 of the 1986 Electronic Communications Privacy Act, which cover stored communications and call details. Accessing those types of information typically requires only a court order, rather than a warrant.
Chaffetz, for his part, contends that “the 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.”
The Wyden-Chaffetz bill, known as the Geolocational Privacy and Surveillance Act, also includes a provision that would force commercial companies to obtain consumer consent before sharing their location information with third parties. That takes the bill away from Fourth Amendment search and seizure questions and into the realm of consumer privacy, where Sen. Al Franken, D-Minn., has offered his own legislation based around an opt-in standard.
The second bill designed with a flat warrant requirement for law enforcement to access all geolocation data comes from Reps. Zoe Lofgren, D-Calif., Ted Poe, R-Texas, and 15 other co-sponsors. That legislation (HR 983) would handle the location portion of the issue similarly to the GPS Act, but Lofgren’s bill also goes further by updating the 1986 ECPA law to standardize the warrant requirement for all stored electronic communications and data.
Senate Judiciary Chairman Patrick J. Leahy, D-Vt., has also offered legislation (S 607) that would update the stored electronic communications and data portion of ECPA, and his committee cleared it in May. Leahy’s staff said the chairman remains focused on his ECPA update and has not yet taken a stance on the issue, though they noted an earlier draft of his bill from the last Congress included a section on geolocation information.
A House Democratic aide suggested Leahy’s email and data update to ECPA appears to be a “slam dunk” at this point, especially after the recent revelations over National Security Agency surveillance programs. The aide expressed skepticism, however, that the Senate would be willing to significantly amend the legislation by re-inserting a location provision before sending it to the floor for a vote.
The prospects are no more clear in the House, where the Judiciary Subcommittee on Crime held hearings on ECPA earlier this year. At the time, subcommittee Chairman Jim Sensenbrenner, R-Wis., indicated a preference for updating both elements of ECPA, location data and stored communications, at the same time.
The House effort is now in the hands of Judiciary Chairman Robert W. Goodlatte, R-Va. Before gaining the gavel, Goodlatte signed on to the Chaffetz-Wyden bill as an original co-sponsor in 2011. His name is no longer listed among the co-sponsors, but a Judiciary aide said he is working on a bipartisan basis to draft an ECPA rewrite.
Congress’ bandwidth for privacy updates has been small in recent years, with only minor bills becoming law while broader changes face continued debate.
Many observers believe the recent revelations concerning NSA surveillance programs may have built momentum for new privacy rules like Leahy’s ECPA bill, even if they would not affect the intelligence programs in questions. If that is indeed the case, Leahy’s ECPA bill could find the floor later this year, where the location provisions could potentially be offered as a germane amendment.
Vice President Joe Biden waits to conduct a mock swearing-in ceremony with Sen. Brian Schatz, D-Hawaii, in the Capitol's Old Senate Chamber, December 2, 2014. Schatz was sworn in to serve the remainder of his term since he was appointed to the seat after Sen. Daniel Inouye, D-Hawaii, passed away.