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Preserving the right to privacy in the digital age

Welch co-sponsors bill to protect public from warrantless GPS tracking

With additional reporting by Taylor Dobbs of VTDigger.org.

BRATTLEBORO—Everyday technologies, such as cell phones, laptop computers, and Global Positioning System (GPS) devices, produce data that make it easy to monitor and log the activities of individual Americans.

As a result, some say, there is a lack of legal clarity regarding how this data should be treated by law enforcement agencies, telecommunications companies, and private citizens.

U.S. Rep. Peter Welch, D-Vt., wants to end some of this confusion. He is signing on to new legislation designed to create a legal framework for when and how GPS data, known as geolocation information, can be accessed and used from GPS devices and cell phones.

“Technology is moving so fast, it’s getting ahead of the legal protections we need to maintain,” Welch said.

Welch is a co-sponsor of the Geolocation Privacy and Surveillance (GPS) Act, introduced last month by U.S. Senator Ron Wyden, D-Ore., and U.S. Rep. Jason Chaffetz, R-Utah.

Welch was in Brattleboro on June 29 to talk about the bill during a news conference in front of U.S. District Court on Main Street. He was accompanied by Allen Gilbert, executive director of the American Civil Liberties Union (ACLU) of Vermont.

The GPS Act would require the government to show probable cause and get a court warrant before acquiring the geolocational information of a person, as required by the Fourth Amendment of the U.S. Constitution, which protects people from unreasonable search and seizure.

The proposed law is similar to current wiretapping laws, and would apply to all law-enforcement acquisitions of the geolocational information of individual Americans without their knowledge, including acquisition from commercial service providers and from tracking devices covertly installed by the government.

Commercial service providers would also be prohibited from sharing customers’ geolocational information with outside entities, except by consent of the customer.

There would be exceptions to the use of the data without a warrant. They include situations in which the person being tracked is in danger, the person’s data is publicly available, police are assisting in the recovery of a stolen electronic device, an emergency or national security situation arises, or a fraud has been committed.

Gilbert said that the ACLU strongly supports the bill.

“For the ACLU, the Fourth Amendment contains one of the most important rights — the right to be left alone by the government. There’s been an explosion of digital information, and the law has not kept up,” he said.

“It’s become a wild west of confusion out there,” Gilbert said, “and privacy is the victim.”

A federal case

Both Welch and Gilbert agreed that the Fourth Amendment applies to electronic records.

Regardless of what happens to the GPS Act, this principle will be tested in a case before the U.S. Supreme Court.

This fall, in United States v. Jones, the Supreme Court will consider whether the warrantless use of a GPS tracking device placed on the vehicle by police to track the whereabouts of a suspected drug dealer violated the Fourth Amendment.

According to court documents, the case involves a joint drug crime investigation by the FBI and the District of Columbia police. The target of the investigation, a nightclub owner named Antoine Jones, was charged and later convicted of several offenses.

Some of the information that led to the conviction was gathered by the GPS device on Jones’ vehicle, and his attorneys sought to suppress that information as being illegally gathered because it violated his “reasonable expectation of privacy” outlined in the Fourth Amendment.

In August 2010, the U.S. Court of Appeals overturned Jones’ conviction. Judge Douglas Ginsburg wrote that “society recognizes Jones’ expectation of privacy in his movements over the course of a month as reasonable, and the use of the GPS device to monitor those movements defeated that reasonable expectation.”

Gilbert said that the various U.S. Circuit Courts “have all come up with different standards” regarding the legality of GPS tracking without a warrant.

“There needs to be some good thinking about this. Modern technology should not deprive us of our historical right to privacy,” he said.

Welch agreed, saying he believes the law should “favor the preservation of privacy.”

The fight in Vermont

On the state level, the ACLU has been battling the Vermont Attorney General’s Office over its request for information about whether law enforcement agencies in the state use cell phone GPS data to track persons under investigation.

The state contended that information about police investigations must be kept secret; the ACLU lost the case, and no records were released.

Gilbert said that the information obtained in the ACLU’s research for the court case is telling.

The Attorney General has been allowing police, without warrants, to electronically monitor Vermonters who are under investigation, he pointed out, adding that police have used a secretive inquest process through the Attorney General’s office to obtain subpoenas for electronic location data, which is available through cell phone providers.

Because inquest proceedings are closed and not outlined in statute, “it’s difficult to know what standards, if any, have to be met in order for law enforcement to get information through this process,” Gilbert said.

Attorney General William Sorrell said in an interview with VTDigger.org that “Vermont law enforcement does, on occasion, access GPS information.”

Cell phone companies voluntarily enter the inquest process. The secret inquest proceedings are used only when cell phone providers do not comply with subpoenas, he said.

Police then initiate inquest proceedings, and, in most cases, the inquests are conducted with judicial oversight — a judge, prosecutor, and court reporter must be present. Prosecutors must then seek permission from a judge to use any evidence that has been obtained through an inquest.

Sorrell said that the ACLU did not have the right to access records regarding criminal investigations, so his office would not release them. The use of inquests, he said, is standard operating procedure in Vermont.

“If the Welch legislation says that this may only be done through a search warrant, that would be a change in practice in Vermont,” Sorrell said.

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Originally published in The Commons issue #108 (Wednesday, July 6, 2011).

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