Privacy concerns threaten emergency response bill

Greg and Missey Smith started the the Kelsey Smith Foundation in honor of their daughter. (Kelsey Smith Foundation)

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There are two sides to the Kelsey Smith Act.

For Kansas Republican state Sen. Greg Smith, the U.S. Senate bill — which could give emergency operators easier access to cellphone location data — might have stopped the death of his daughter, for whom the bill is named. For others, however, it’s a privacy nightmare.

This battle between privacy and safety advocates has become the core controversy behind the Kansas senator’s bill. Inspired by the kidnapping and homicide of his daughter Kelsey, Smith and his wife, Missey, have pushed endlessly to require cellular companies to disclose to law enforcement the location of a mobile phone in emergency situations.

After Kelsey was kidnapped in June 2007, it took police four days to retrieve her cellphone location from Verizon, Smith said. Once they did, police found her body in an hour.

“This is a bill that could save lives,” Smith told FedScoop. “There are already examples of times where we wouldn’t have found a person without this bill.”

This isn’t Congress’ first encounter with the Kelsey Smith Act. Despite similar legislation passing in 23 states — starting in Smith’s home state of Kanas in 2009 and moving all across the country, most recently signed into law in Indiana this past March — opposing advocacy groups and dissenting congressmen feared a federal version of the bill would give law enforcement too much power, killing a proposed bill from the the House Energy and Commerce Committee earlier this year.

The bill’s future — now nine years since Kelsey’s death — rests in anticipation of an upcoming markup, which the Senate Committee on Commerce, Science, Transportation was supposed to hold in June but delayed. Now, with Congress on recess, that markup won’t happen until September.

“We had all hoped this important measure would be ready for consideration today; however, the sponsors are still working to strike the right balance between public safety and privacy,” Chairman Sen. John Thune, R-S.D., said at the committee’s most recent executive session. “Progress has been made, and I’m confident we’ll consider the measure relatively soon.”

Meanwhile, Sen. Pat Roberts, R-Kan., the legislation’s sponsor, “is working on the bill and is vetting it through some law enforcement groups,” his spokesperson told FedScoop in an email.

Smith is also confident in the Senate bill’s future. He said he is “feeling pretty good” about its chances in September and has personally spoken to many in the chamber who support it. Spending the past seven years developing legislation around the cause has allowed him to gather more support from law enforcement, constituents and those on Capitol Hill, Smith said.

“We’ve known for a while this is a marathon, not a sprint,” he said. “Even if we can’t move forward, we’ll be back again next year.”

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Kelsey Smith, the daughter of Kansas Republican state Sen. Greg Smith and the inspiration for the bill. (Kelsey Smith Foundation)

Despite strong, vocal support in the House, the bill’s marathon and mostly unsuccessful run in Congress has been largely influenced by the opposition of advocacy groups, like the American Civil Liberties Union and the Electric Frontier Foundation, who’ve fought to convince Congress the Kelsey Smith Act could hurt privacy more than it promotes safety.

The current version of the Senate bill lacks the necessary safeguards to stop police and emergency operators from abusing the added power, ACLU legislative counsel Neema Singh Guliani told FedScoop. By forcing telecommunications to provide cell phone data, Guliani’s ACLU and others fear the law would not improve emergency response times, but instead hinder privacy for all.

“We think this is harmful because, on the front end, we want law enforcement to make sure they have permission when they really do have evidence that someone is in danger,” she said.

Smith is worried that the extra specifications would add even more hoops for the responders to jump through before they are able to help people in danger. If there are too many obstacles, or if companies can opt out, the bill cannot serve its purpose, he said.

But Guliani and others said they want a more clarified and narrow definition of what is considered an emergency and for the bill to require law enforcers to have a “probable cause” of danger instead of a “reasonable belief.” For each time enforcement does track receive someone’s location, the bill’s adversaries want to guarantee the person is notified and the case gets reviewed.

More privacy protection will ensure that police do not go too far, which has happened before, Guliani said.

“Given the fact that we have other circumstances where we know emergency requests have been abused, and also situations where emergency requests have been abused at a local level, I think it’s really important we put in place the checks and balances to make sure that emergency exceptions don’t act as a run-around the Fourth Amendment,” Guliani told FedScoop.

When Smith’s fight picks back up in September, he is determined to stand by and pass the bill — even if it fails in the Senate.

“I was a cop for 20 years, so I know how these procedures work and what it takes to get this information,” Smith said. “During the time it takes to go through the front-end and get this information, there is a good chance you are raising the risk.”

“Time is of the essence,” he said.

Contact the reporter on this story via email: Jeremy.Snow@FedScoop.com. Follow him on Twitter @JeremyM_Snow. Sign up for the Daily Scoop — all the federal IT news you need in your inbox every morning — here: fdscp.com/sign-me-on.

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