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The question of whether law enforcement officials need a warrant to track individuals using their cellphones remains open, but the prospects for legislation on the issue are murky at best in Congress.
Maine recently became the second state to ban officials from accessing cellphone location data without a warrant, highlighting again how Congress has been unable to reach a compromise on updating various elements of federal digital privacy laws.
Today’s smartphones are equipped with GPS devices and store a wealth of data on users’ location and movements. The courts have been mixed on whether a warrant is required for officials to access this data, with some courts maintaining that the legal standard differs depending on the age of the data and how it is obtained, according to Alan Butler, appellate advisory council at the Electronic Privacy Information Center, a public-interest research group.
Cellphone location records are currently lumped under Title 1 and Title 2 of the 1986 Electronic Communications Privacy Act (PL 99-508), which cover stored communications and call details. Accessing those types of information typically requires only a court order, rather than a warrant, as is required for the contents of a phone call or digital message under Title 3.
The Justice Department maintains in court that it doesn’t need a warrant for most location data, but in practice it has sought warrants whenever it is attempting to use GPS to track a user’s current or future location, Butler said. He said some courts have also recognized the distinction between historical and real-time location records and that the issue continues to be litigated in various jurisdictions.
Law enforcement officials “are trying to fit these new investigative methods into old legal boxes drawn in the 1980s,” Butler said. “Our view is that the comprehensive location records, especially, are just as sensitive as the content of the calls. In some cases, they can be more sensitive.”
A number of lawmakers share the position that accessing any location data should require a warrant, resulting in two bills that have gained support. Sen. Ron Wyden, D-Ore., and Rep. Jason Chaffetz, R-Utah, are sponsoring legislation (HR 1312, S 639) that would require law enforcement to obtain a warrant for all location data with limited exceptions for national security and emergencies.
“The courts have been conflicted over the proper use of geolocation tracking data by law enforcement,” Wyden’s office said via email. “This clarifies the rules that law enforcement and prosecutors need to follow in order to track individuals using their cellphones or GPS devices, and ensures that private providers know exactly how and when they are required to comply with law enforcement requests for data.”