While the atrocities in Boston last week may give credence to arguments by law enforcement on the necessity of easy access to mobile geolocation data, civil liberties advocates took the stand today to fight for amendments to the 27 year-old legislation that makes it possible.
Amendments to the Electronic Communications Privacy Act were last introduced April 19 by Senate Judiciary Committee Chairman Sen. Patrick Leahy (D-Vt.) and Sen. Mike Lee (R-Utah).
Civil liberties advocates and experts from private sector voiced their concern in a House hearing April 25 about the ability of law enforcement to access an array of geolocation information from mobile providers without warrants and, at times, without probable cause via the ECPA.
The House Subcommittee on Crime, Terrorism, Homeland Security and Investigations hearing on the ECPA delved into the pros and cons of current geolocation surveillance legislation. Expert testimony was provided by Mark Eckenwiler, senior counsel at Perkins Coie LLP; Peter Modafferi, chairman of the Police Investigative Operations Committee at the International Association of Chiefs of Police; Catherine Crump, staff attorney at the American Civil Liberties Union; and Matt Blaze, professor at the University of Pennsylvania.
Currently, law enforcement can obtain two types of cell site geolocation information: historical data and prospective data. Historical data can retrace a person’s previous movements, while prospective data tracks mobile phones in real-time. Historical data availability varies according to the policies of the mobile provider.
An internal Justice Department document obtained by the ACLU found mobile phone service providers store their customers’ historical location information for significant periods of time, some for years, others for months.
“Verizon stores the cell towers used by a mobile phone for ‘one rolling year,’ T-Mobile keeps this information ‘officially 4-6 months, really a year or more,’ Sprint and Nextel store this data for ‘18-24 months,’ and AT&T/Cingular retains it ‘from July 2008’,” Crump said.
No clear standard currently exists among courts on what legal criterion is required for law enforcement officials to obtain mobile geolocation data. For this reason, the ACLU urged Congress to update electronic privacy laws to require law enforcement officials to obtain a warrant based on probable cause before attaining any type of private mobile geolocation data.
On the other hand, geolocation data “often provides fundamental building blocks on which cases may rest . . . 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,” said Modafferi, a 41-year detective.
Crump testified that geolocation data may also have played a role in the citywide manhunt and ultimate apprehension of the Boston Marathon bombing suspects. This data could be an integral part of the case against the surviving suspect, placing the teenager at various crime scenes, she said.
Other groups are hoping to push the amended legislation forward as quickly as possible. The Software & Information Industry Association released a statement supporting the Senate Judiciary Committee’s passage of the ECPA amendments, urging Congress to swiftly approve the legislation.
“We urge the full Senate to now move this bill forward, so that Americans can be assured that information stored in the cloud gets the same protection as the information stored in their homes,” said Ken Wasch, president of SIIA.