[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
ELECTRONIC COMMUNICATIONS PRIVACY ACT (ECPA) (PART II): GEOLOCATION
PRIVACY AND SURVEILLANCE
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
HOMELAND SECURITY, AND INVESTIGATIONS
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
APRIL 25, 2013
__________
Serial No. 113-34
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
HOWARD COBLE, North Carolina ROBERT C. ``BOBBY'' SCOTT,
LAMAR SMITH, Texas Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
SPENCER BACHUS, Alabama ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio JUDY CHU, California
TED POE, Texas TED DEUTCH, Florida
JASON CHAFFETZ, Utah LUIS V. GUTIERREZ, Illinois
TOM MARINO, Pennsylvania KAREN BASS, California
TREY GOWDY, South Carolina CEDRIC RICHMOND, Louisiana
MARK AMODEI, Nevada SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
[Vacant]
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
------
Subcommittee on Crime, Terrorism, Homeland Security, and Investigations
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
LOUIE GOHMERT, Texas, Vice-Chairman
HOWARD COBLE, North Carolina ROBERT C. ``BOBBY'' SCOTT,
SPENCER BACHUS, Alabama Virginia
J. RANDY FORBES, Virginia PEDRO R. PIERLUISI, Puerto Rico
TRENT FRANKS, Arizona JUDY CHU, California
JASON CHAFFETZ, Utah LUIS V. GUTIERREZ, Illinois
TREY GOWDY, South Carolina KAREN BASS, California
RAUL LABRADOR, Idaho CEDRIC RICHMOND, Louisiana
Caroline Lynch, Chief Counsel
Bobby Vassar, Minority Counsel
C O N T E N T S
----------
APRIL 25, 2013
Page
OPENING STATEMENTS
The Honorable F. James Sensenbrenner, Jr., a Representative in
Congress from the State of Wisconsin, and Chairman,
Subcommittee on Crime, Terrorism, Homeland Security, and
Investigations................................................. 1
The Honorable Robert C. ``Bobby'' Scott, a Representative in
Congress from the State of Virginia, and Ranking Member,
Subcommittee on Crime, Terrorism, Homeland Security, and
Investigations................................................. 2
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 3
WITNESSES
Mark Eckenwiler, Senior Counsel, Perkins Coie LLP
Oral Testimony................................................. 6
Prepared Statement............................................. 8
Peter A. Modaferri, International Association of Chiefs of Police
Oral Testimony................................................. 19
Prepared Statement............................................. 21
Catherine Crump, Staff Attorney, American Civil Liberties Union
(ACLU)
Oral Testimony................................................. 29
Prepared Statement............................................. 31
Matt Blaze, Professor, University of Pennsylvania
Oral Testimony................................................. 43
Prepared Statement............................................. 45
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 4
APPENDIX
Material Submitted for the Hearing Record
Material submitted by the Honorable Robert C. ``Bobby'' Scott, a
Representative in Congress from the State of Virginia, and
Ranking Member, Subcommittee on Crime, Terrorism, Homeland
Security, and Investigations................................... 72
Questions for the Record submitted to Mark Eckenwiler, Senior
Counsel, Perkins Coie LLP...................................... 152
Response to Questions for the Record from Peter A. Modaferri,
International Association of Chiefs of Police.................. 155
Questions for the Record submitted to Catherine Crump, Staff
Attorney, American Civil Liberties Union (ACLU)................ 158
Response to Questions for the Record from Matt Blaze, Professor,
University of Pennsylvania..................................... 161
ELECTRONIC COMMUNICATIONS PRIVACY ACT (ECPA) (PART II): GEOLOCATION
PRIVACY AND SURVEILLANCE
----------
THURSDAY, APRIL 25, 2013
House of Representatives
Subcommittee on Crime, Terrorism,
Homeland Security, and Investigations
Committee on the Judiciary
Washington, DC.
The Subcommittee met, pursuant to call, at 10 a.m., in room
2141, Rayburn House Office Building, the Honorable F. James
Sensenbrenner, Jr. (Chairman of the Subcommittee) presiding.
Present: Representatives Sensenbrenner, Goodlatte, Scott,
Conyers, Chu, and Richmond.
Staff Present: Anthony Angeli, Majority Counsel; and Joe
Graupensperger, Minority Counsel.
Mr. Sensenbrenner. The Subcommittee will come to order.
Without objection, the Chair will be authorized to declare
recesses during votes today.
This hearing is the second in a series on the Electronic
Communications Privacy Act, otherwise known as ECPA. Today, we
will examine the issue of geolocation and its use by law
enforcement in criminal investigations.
While this hearing was planned before the attack in Boston,
those tragic events highlight the importance of the topic. The
stakes are high. As in any ECPA reform, Congress needs to
strike the right balance to protect privacy rights without
undermining law enforcement.
The term ``geolocation'' is often used broadly and in a
variety of contexts. Geolocation refers to the method of
assessing the location of an electronic device--typically a
cell phone, but sometimes a vehicle--with or without a tracker
or a computer.
Geolocation is often related with the acquisition of cell
tower information to determine the general location of a cell
phone. Thus, frequently, geolocation is related to the use of
global positioning systems, or GPS.
The results from its use often vary. Depending upon the
type of cell phone being tracked or the provider on whose
network it operates, the information about a phone's location
can vary from a city block to specific latitude and longitude
coordinates.
The primary objective of this hearing is to examine whether
the electronic acquisition of a device's geographical location
is covered by the Fourth Amendment and, if so, what level of
legal process should be required before accessing such
information. The hearing will also examine how law enforcement
makes use of this information and its importance in their
response to criminal and national security threats.
ECPA has not kept pace with the assortment of new
communication devices and other technologies that are now
widely available in today's marketplace. This is particularly
true with geolocation technology. As GPS technology has become
cheaper, more widely available, and used more frequently in our
daily lives, the legal authorities and restrictions that are or
should be in place to govern when and where such information is
accessed and used have become less clear.
No one doubts that geolocation information is useful,
especially to law enforcement officers and agents. The larger
question is how do we balance the needs of law enforcement with
the expectations of privacy of those they are charged with
protecting?
In U.S. v. Jones, the Supreme Court proposed that new
intrusions on privacy may spur the enactment of legislation to
protect against these intrusions, as had occurred in the case
of wiretapping many years ago. The court asserted that Congress
should enact a comprehensive statute regulating the use of GPS
tracking technology for law enforcement purposes.
Since all geolocation capabilities are not created equal,
our task in enacting comprehensive legislation is more complex.
Unfortunately, Jones was limited to the installation of a GPS
tracker on a suspect's vehicle and gives us limited guidance.
I am dismayed to point out that the Department of Justice
declined to testify at today's hearing. I was tempted to have
an empty chair for their witness, should they change their mind
at the last minute. There is not an empty chair at the witness
table, but the chair notes that there are plenty of empty
chairs in the room, should they decide to appear.
As the Nation's most frequent user of ECPA for geolocation
purposes, the department is in a unique position to educate the
Members of this Subcommittee on the status of Federal law and
the department's current practices when seeking court orders
for geolocation information. While DOJ has briefed Committee
staff on ECPA and geolocation, the Obama administration has
refused our request to testify in public because it lacks a
clear policy position on how best to reform ECPA.
This is unacceptable, and I don't want to spend a lot of
time working on something that is workable when, all of a
sudden, out of the blue there will be a statement of
Administration policy that will threaten a veto over hours of
work and input from everybody except the Department of Justice.
We must, unfortunately, move forward in their absence.
I welcome our witnesses who are with us today and look
forward to their testimony and now recognize the gentleman from
Virginia, Mr. Scott, the Ranking Member.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Chairman, today we meet to discuss issues related to
geolocation, privacy, and surveillance and the need to clarify
the standards of Government access to certain types of personal
location information.
Technology affords us greater conveniences, but advances in
technology present new challenges to our privacy rights. Much
more information is generated about us, and we are presented
with questions about how it is stored and by whom it may be
accessed.
The Supreme Court 1967 decision Katz v. United States
continues to direct our privacy jurisprudence. In that case, a
man's calls from a public pay phone booth were recorded by a
device attached to the outside of the booth by the FBI. The
court ruled that this eavesdropping was a search under the
Fourth Amendment because it violated a man's ``reasonable
expectation of privacy.''
Now that standard should continue to guide us today. When
we go somewhere in public, we know that we may be seen by
others, and even if we do not want others to know where we are,
the visual recognition by others is a risk we take. What we do
not expect is that our carrying of a personal communication
device, such as a cell phone, will be used by Government to
track and record our every move.
This is particularly the case as cell site location
information has become, in many cases, as accurate as GPS
because of the growing number of cell sites and the use of
microcells that cover extremely small areas. We have laws that
make a combination between privacy rights and sometimes urgent
need of law enforcement to investigate crimes, and that is why
Congress drafted Federal statutes to restrict Government access
to the content of electronic communications but provides a less
stringent standard for accessing noncontent records reflecting
just that a communication took place, but not the content of
the communication.
The Electronic Communications Privacy Act, which was
enacted in 1986, was forward looking in some ways but did not
contemplate every possible technological advance. Because the
statute did not foresee the current state of location
technology, the law does not provide clear guidance as to what
steps the Government must take in order to obtain location data
from devices like cell phones and navigation systems in cars.
While we should have exceptions for emergency situations
and situations where the need to locate a missing person--where
there may be a need to locate a missing person, we need
legislation to address the lack of clarity in the law by
generally requiring the Government to show something, possibly
probable cause, to get a warrant in order to obtain historical
and prospective data location about our citizens.
Given our expectation of privacy, this should be the
starting point for our discussion of the issue today.
I yield back the balance of my time.
Mr. Sensenbrenner. I thank the Ranking Member.
The Chair now recognizes the most recent Chairman emeritus
of the Committee, the gentleman from Michigan, Mr. Conyers, for
his opening remarks.
Mr. Conyers. Thank you, Chairman Sensenbrenner and Ranking
Member Scott.
I will put my statement in the record and indicate my
support and co-sponsorship of H.R. 1312 and warmly welcome the
witnesses that are joining us here today.
This question of cell phones and tracking locations are
right smack up against the privacy considerations, and this
discussion and this legislation will be very important in that
direction.
And so, I am happy to join all of you at this hearing, and
I return the balance of my time.
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Ranking Member, Committee
on the Judiciary
Today we consider a critical issue of personal privacy: whether the
government should have to show probable cause and get a warrant in
order to obtain from wireless devices information about where someone
has been or is going. This is particularly important because the ACLU
has reported the widespread use of cell phone tracking by law
enforcement agencies and revealed that the legal standards used to
engage in tracking vary widely.
I want to make several points about this issue and what we must do.
First, government tracking of everywhere we go is contrary to our
reasonable expectation of privacy. Today, almost all of us carry cell
phones or other electronic devices, but we do so in order to
communicate with each other, not to be tracked by the government.
Geolocation tracking, whether information about where we have been or
where we are going, strikes at the heart of personal privacy interests.
The pattern of our movements reveals much about ourselves. When
individuals are tracked in this way, the government is able to generate
a profile of a person's public movements that includes details about a
person's familial, political, professional, religious, and other
intimate associations.
Next, we must recognize that the Supreme Court's decision last year
in U.S. v Jones reinforces the fact that the question of location
privacy in the hands of Congress. In Jones, the court ruled that
placing a GPS tracking device on a car constitutes a search under the
Fourth Amendment.
While the Court was not presented with the question of whether a
warrant should be required or under what standard a court order should
be issued, the case highlights the need for us to address the full
range of location tracking issues.
In his concurring opinion, Justice Alito noted that the
availability of location tracking devices, including cell phones,
raises important questions about our expectations of privacy. He noted
that Congress has not adequately addressed these issues and that ``in
circumstances involving dramatic technological change, the best
solution to privacy concerns may well be legislative.''
Finally, I propose that we enact legislation to address uncertainty
in the law and provide the appropriate standard. Current law does not
adequately address this issue and we need to enact H.R. 1312, the
``Geolocation Privacy and Surveillance Act.''
I am a cosponsor this bill, introduced by Congressman Jason
Chaffetz to require the government to obtain a warrant based on
probable cause to compel cell phone companies to disclose the location
information of their customers.
As the New York Times reported, ``lawyers and law enforcement
officials agree[] that there [is] uncertainty over what information the
police are entitled to get legally from cell phone companies, what
standards of evidence they must meet, and when courts must get
involved.''
Protecting the privacy of this information is up to Congress, and
given the reasonable expectations of privacy we have about our location
information, the appropriate standard is probable cause. That is why I
support enactment of H.R. 1312.
Thank you.
__________
Mr. Sensenbrenner. I thank the distinguished Chairman
emeritus.
By tradition, we swear witnesses in at the beginning of
each hearing. So will the witnesses please rise, raise your
right hand?
[Witnesses sworn.]
Mr. Sensenbrenner. Let the record show that each of the
witnesses answered in the affirmative, and the Chair will now
introduce the witnesses.
Mr. Mark Eckenwiler is senior counsel of the firm Perkins
Coie. His focus is in electronic privacy law, civil and
criminal liability for online conduct, computer intrusions, and
service provider interactions with law enforcement. Mr.
Eckenwiler previously served with the Department of Justice as
a primary authority on Federal electronic surveillance law,
including the Wiretap Act, the pen register/trap and trace
statute, the Electronic Communications Privacy Act of 1986, and
CALEA.
Most recently, he was the Associate Director for Technology
with the Office of Enforcement Operations in the Justice
Department's Criminal Division, where he oversaw all Federal
applications for Internet communications surveillance orders.
He received his bachelor's of arts degree from Harvard, his
master of arts from Boston University, and his law degree from
NYU School of Law.
Mr. Peter Modaferri has been a detective with the Rockland
County District Attorney's Office for over 40 years and the
last 25 years as chief of detectives. Since 1990, Mr. Modaferri
has chaired the Investigative Operations Committee for the
International Association of Chiefs of Police. He is a member
of the Criminal Intelligence Coordinating Council and served as
a regional expert for the Office of National Drug Control
Policy Technology Transfer Program and consulted with the
Foreign Terrorism Tracking Task Force, which was established in
2001.
Mr. Modaferri is a graduate of the FBI National Academy,
holds a B.A. from Siena College, and a master of arts in
criminal justice, and has concluded the coursework in the
doctoral program at the City University of New York. In 1992,
he was awarded a Fulbright Fellowship for graduate study in the
United Kingdom.
Ms. Catherine Crump currently serves as a staff attorney
for the American Civil Liberties Union Speech, Privacy, and
Technology Project. She is currently litigating constitutional
challenges to cell phone tracking by law enforcement and is
seeking information related to the Justice Department
interpretation of how United States v. Jones applies to its
location tracking activity.
If you find that out, please let us know because,
apparently, they don't want to tell us directly.
She has directed nationwide requests for public records
regarding law enforcement's use of cell phone information and
license plate readers. She received her bachelor of arts from
Stanford University and her law degree from Stanford Law
School.
Mr. Matthew Blaze is Associate Professor of Computer and
Information Science at the University of Pennsylvania. Mr.
Blaze's research focuses on cryptography, mass applications,
trust management, human scale security, secure systems design,
networking, and distributed computing. His focus is in security
technology with bearing on public policy issues, including
cryptology policy, wiretapping, and surveillance.
He received his bachelor of science degree from City
University of New York, Hunter College; his master of science
degree from Columbia; and his master's of art and Ph.D. from
Princeton.
Each of the witnesses' written statements will be entered
into the record in its entirety, and I ask that each summarize
his or her testimony in 5 minutes. We have the lights there.
The yellow light means you should speed up, and the red light
means you should stop.
Mr. Eckenwiler?
TESTIMONY OF MARK ECKENWILER, SENIOR COUNSEL, PERKINS COIE LLP
Mr. Eckenwiler. Chairman Sensenbrenner, Ranking Member
Scott, Mr. Chairman Emeritus, and distinguished Members of the
Subcommittee, thank you for your invitation to testify this
morning on the important topic of cell phone location privacy.
My name is Mark Eckenwiler, and I should state at the
outset that my comments today reflect only my personal views. I
will, of course, be drawing on my 16 years of experience
working on a daily basis with the Electronic Communications
Privacy Act, or ECPA. I am not speaking today on behalf of the
Justice Department or my current employer or any individual
client.
My testimony today focuses on both the types of location
data that law enforcement seeks from wireless providers and the
legal rules that restrict such disclosures. I have three main
points.
First, not all location data is the same. It can be
generated in a variety of ways, and one type of location data,
cell site location information, is less precise than others.
Second, in general, existing law provides a carefully
calibrated set of meaningful protections for wireless user
location data. The sky is not falling. And third, the current
framework does, however, have some gaps and inconsistencies
that I think would benefit from careful study by this
Committee.
Now I mentioned that there are different types of location
data. Cell site information is generated in the ordinary course
of business whenever a user sends or receives a phone call or a
text message. It does not provide pinpoint location information
for a phone. Rather, these records indicate which cell tower
handled a particular communication.
Because tower spacing varies widely across a range of
locations from rural to suburban to urban settings, so does the
area covered by each tower. And as a result, cell site location
information may place a phone on a given city block, or it may
only indicate a very large area of several square miles in
which a phone was apparently located at the time of a
communication.
Contrast this with precise location information. This
separate class of data, which includes but is not limited to
GPS, is different not only in its level of precision and, thus,
its privacy invasiveness, but also how it is obtained. One
significant difference is that precise location information may
be generated even when the phone is not in active use, sending
or receiving a communication.
Existing law treats these two types of information, cell
site and precise location information, very differently. Under
ECPA, law enforcement can obtain stored cell site records--that
is, for some period in the past--only by applying to a court
for a so-called 2703(d) order.
Now the standard for issuance of this, specific and
articulable facts, is an important safeguard, and indeed, the
executive director of the Electronic Frontier Foundation
testified before a joint House/Senate committee this standard
affords ``a high degree of protection.''
The rules governing prospective collection of cell site
information--that is, real-time collection--are a subject of
profound disagreement among the Federal courts. Some of them
apply this same 2703(d) standard in granting so-called ``hybrid
orders.'' Others see a gap in the statute and have required a
warrant because there's no other available mechanism.
Because precise location information, by contrast, is not
collected by wireless carriers in the ordinary course, it is
not typically available as a stored record for past periods.
For ongoing surveillance, ECPA provides no clear statutory
mechanism, and as a result, the practice at the Federal level
has been to seek a search warrant under Criminal Rule 41, based
upon a showing of probable cause.
Finally, as set out in more detail in my written statement,
the current legal framework is not perfect. There are a number
of issues that merit this Committee's attention, and I would be
pleased to discuss those in greater detail during the Q&A.
In summary, Mr. Chairman, existing law, especially ECPA,
recognizes the important privacy interests at stake by putting
meaningful legal barriers between law enforcement and users'
location data. In doing so, current law takes the approach of
careful calibration of legal standards rather than one size
fits all.
Thank you for the opportunity to appear this morning. I
look forward to your questions.
[The prepared statement of Mr. Eckenwiler follows:]
__________
Mr. Sensenbrenner. Thank you.
Mr. Modaferri? Could you please press the voice button?
TESTIMONY OF PETER A. MODAFERRI,
INTERNATIONAL ASSOCIATION OF CHIEFS OF POLICE
Mr. Modaferri. Good morning, Chairman Sensenbrenner,
Ranking Member Scott, and Members of the Subcommittee.
Thank you for this opportunity to discuss the role that
geolocation information plays as evidence in criminal
investigations and its importance in law enforcement's effort
to seek justice and public safety in the 21st century.
It is from the vantage point of being a detective for 40
years and currently chief of detectives and longtime chairman
of the IACP's Police Investigative Operations Committee that I
have seen a great deal of--a great and growing value of
geolocation information to criminal investigations. Two issues
have arisen over the past 10 years, which have increased this
value significantly--globalization and wrongful convictions.
When this information is obtained in early stages of
investigation, it provides fundamental building blocks on which
successful cases may rest. Requiring probable cause in the
initial stage of investigation to obtain certain types of
geolocation information would make it significantly more
difficult to solve crimes.
Investigative issues of time, technology, and process must
be addressed in a way that allows us to proceed from the
initial stages of an investigation, where little is known and
nothing can be assumed, to a point where investigators
establish probable cause.
The classic questions presented in investigations--who,
what, where, when, why, and how--can be answered with
geolocation evidence. To learn facts and make valid
assumptions, investigators use available geolocation evidence
as a filter to help corroborate or refute statements and
conclusions at any time during investigation, to confirm or
dismiss alibi statements or claims of witnesses, and to act
as--for stored times and places, it can be the only witness at
a crime scene.
Geolocation information gives us more than the ability to
solve crime. It can prevent wrongful arrest by revealing the
suspect was not at the scene of the crime. Mistaken
identifications are a leading cause of wrongful convictions.
It can provide us with accurate time and place evidence
that can confirm or refute identifications, confessions, and
inaccurate testimony. Justice and public safety in the 21st
century is a new ballgame. Today's criminal investigators are
more mobile than ever. That makes law enforcement access to
geolocation information all the more important.
Law enforcement must take advantage of geolocation
information and location-based information just as the private
sector does. Smartphones, mobile devices, GPS, and preinstalled
technology like OnStar are available with more location
technology evolving at a rapid pace.
Technologies generate--also generate historical data and
business records from which location information can be
derived. E-ZPass, credit card, and debit transactions are
examples.
If we do not have standards of access in place to ensure we
can get location evidence early in a case, then law enforcement
will miss out on the productivity impact of advancing
technology. That affects our ability to do our jobs the best we
possibly can.
An example that demonstrates this type of importance of
geolocation information was a bank robbery case in the Rockland
County area. In the area around Rockland County, there were
seven bank robberies. We had no success in identifying the
perpetrators of those crimes until a witness came forward. She
was a victim of one of the crimes, and she was at a gas station
and saw a person who she believed was one of the robbers. And
she was able to take a photograph of that person's car, and it
had dealer license plates on it.
Using a subpoena, the detectives were able to get a
possible identity on the person who purchased that car. Police
then focused on the--with the subpoena on the basis of
subscriber information and phone numbers. That was followed by
a so-ordered subpoena, which produced historical cell site
locations. Then a trap and trace pen register surveillance with
location authorization was established.
Utilizing probable cause, we then attached a GPS device.
The result was an arrest of the suspects immediately after
their next robbery, while they were holding the proceeds of the
crime.
At the beginning of the case, standard identification
procedures were of little value, and there were no suspects in
the case. A witness opened a criminal investigation. To build
the case, subpoenas for stored cell phone call detailed records
with location information were issued once we had that lead.
The subpoenas produced suspects and locations that were
essential to reach probable cause. Throughout the
investigation, location information revealed and confirmed the
activities of the true perpetrators. Not only did it help
identify the right people, it resolved a misidentification and
prevented a wrongful arrest.
To conclude, Mr. Chairman, geolocation information has
become an essential building material in the construction of
many criminal investigations. It could be the concrete that
cements eyewitness identification, the criminal, and the crime
scene together.
To gather and integrate this information in the initial
stages of an investigation, we must have reasonable balance
between the standards of access required to obtain location
evidence and the need of the investigation to proceed. Just as
important, law enforcement must be able to receive these facts
in a rapid and complete response from the holder of the
information record.
Requiring probable cause to get basic limited information
about a person's historical location could make it
significantly more difficult for us in law enforcement to solve
crimes and seek justice.
Thank you.
[The prepared statement of Mr. Modaferri follows:]
__________
Mr. Sensenbrenner. Thank you.
Ms. Crump?
TESTIMONY OF CATHERINE CRUMP, STAFF ATTORNEY, AMERICAN CIVIL
LIBERTIES UNION (ACLU)
Ms. Crump. Good morning, Chairman Sensenbrenner, Ranking
Member Scott, Chairman Emeritus, and Members of the
Subcommittee.
Thank you for the opportunity to testify on behalf of the
American Civil Liberties Union.
Over the past week and a half, our Nation has been gripped
by the horrific events in Boston. Today, our thoughts remain
with the victims of that tragedy and with their families.
Although details of the investigation are still unfolding,
it is apparent that electronic surveillance played an important
role in locating and tracking the suspected perpetrators. That
is as it should be. No one denies that electronic surveillance
can be an important tool for law enforcement and, indeed, in
horrific and rare events, such as what transpired in Boston, an
essential one.
That is why the ACLU has always supported an exemption in
the law permitting immediate disclosure of location data in aid
to agencies in such life and death situations. However, in
routine investigations, law enforcement agencies, such as the
local police and the FBI, should secure a warrant based upon
probable cause to obtain mobile phone location data.
The ACLU supports the Geolocation Privacy and Surveillance
Act because the framework it establishes allows law enforcement
agents to access the tools they need while providing an
independent check and balance through review by a judge, which
will ensure that innocent Americans do not have their privacy
violated.
Mobile phone location technology provides law enforcement
agents with an invasive, yet inexpensive method of tracking
individuals over extended periods of time and unlimited
expanses of space, as they traverse both public and private
areas. It also makes it possible for law enforcement agents to
identify all individuals located in a particular location, a
valuable tool, but one that, by necessity, can reveal the
location of thousands or even tens of thousands of innocent
Americans.
In many parts of the country, the police have been tracking
mobile phones for days, weeks, or even months at a time without
ever having to demonstrate to an independent judge that they
have a good reason to believe the tracking will turn up
evidence of wrongdoing.
Mobile phone location data implicates strong privacy
interest because tracking people's movements makes it possible
to learn a great deal of personal and private information about
them. As Justice Alito explained, society's expectation has
been that law enforcement agents would not and, indeed, in the
main could not track people's movements over a long period of
time in their car, an observation which applies with even
greater force to the cell phones people carry with them all the
time.
The warrant and probable cause requirements are essential
components of the Fourth Amendment. The probable cause
requirement is not high. Law enforcement merely has to have a
good reason to believe that a search will turn up evidence of
wrongdoing.
It is useful to identify points of agreement between law
enforcement interests and those civil society organizations
concerned about privacy. First, the Department of Justice
already recommends that its agents obtain a warrant based upon
probable cause to secure real-time precision location
information, the very standard that the ACLU supports.
Also, local law enforcement agencies, such as the County of
Hawaii, Wichita, and Lexington, Kentucky, already secure
warrants across the board. Thus, merely codifying a
longstanding Department of Justice policy would help protect
Americans' privacy.
Second, we agree with Mr. Eckenwiler, as he stated in his
written testimony, that the so-called cell tower dumps, the
acquisition of location data of all individuals at a particular
location, pose especially grave privacy concerns because they
could sweep up the locations of thousands of innocent
Americans. Like Mr. Eckenwiler, we believe the Committee should
consider additional statutory protection, such as limits on the
number of records or the length of time window requested or
protocols for sealing or destroying the documents obtained.
We also agree with numerous law enforcement representatives
that the current legal standards in force are unclear. However,
we part ways over the applicable legal standard because the
warrant and probable cause requirement should apply across the
board to cell phone location data.
These requirements are especially important today, given
the tremendous and rapid technological development over the
past 10 years that make it easier than ever to track Americans'
every movement. The ACLU supports passage of the GPS Act
because it would ensure that law enforcement agents obtain a
warrant based upon probable cause to access mobile phone
location data subject to appropriate exceptions.
Thank you.
[The prepared statement of Ms. Crump follows:]
__________
Mr. Sensenbrenner. Thank you.
Mr. Blaze?
TESTIMONY OF MATTHEW BLAZE, PROFESSOR,
UNIVERSITY OF PENNSYLVANIA
Mr. Blaze. First of all, thank you. Thank you, Chairman
Sensenbrenner and Members of the Subcommittee, for the
opportunity to testify here today.
The focus of my remarks will be on the technology of mobile
location tracking and the trends that we can expect mobile
location technologies to follow as these devices become a more
ubiquitous and critical part of our daily lives into the
future.
I think the most important thing for the Committee to
consider in drafting legislation regulating the use of location
information from mobile devices is that this is a very rapidly
moving area of technology, enjoying continued and explosive
growth. And that will continue for the foreseeable future and
beyond.
I'd like to talk for just a few moments about how cellular
mobile devices operate. Of course, as you know, cellular
telephones and cellular data devices, such as tablet computers,
operate not with a wired connection, but rather with a radio
connection.
The radio connection is provided by a service provider that
operates a network of base stations throughout its geographic
coverage area. These base stations are alternatively called
cell sites or cellular base stations or sometimes towers or
sector antennas. The terms are approximately equivalent for our
purposes here.
Unfortunately, the capacity of any given base station is
limited by two fundamental factors. The first and today less
important one is the radio range over which they can operate. A
cellular telephone under ideal conditions in a clear radio
spectrum may be able to operate with a base station as far as a
mile or two from the cellular handset.
But the more important limitation is the spectrum capacity
of the frequency bands that are used by the mobile service
providers. Each base station has a limited number of calls that
it can process, a limited number of data services that it can
handle simultaneously from different customers.
So as cellular and mobile technology has grown and become
so important, as we all get different mobile devices and use
them more often for more things, with higher bandwidth
broadband connections, service providers have had no choice but
to reduce the geographic area over which each base station
operates so that smaller cell towers, smaller antennas cover a
smaller number of users who can take advantage of the services
that they've provided.
And this trend has over the last 15 years been continuously
in the direction of higher and higher density. We have provided
more spectrum to mobile service providers, but the amount of
spectrum is ultimately limited not by regulation, but by
physics, and so really the only direction in which growth can
happen at the explosive pace that it's occurring is by making
the base stations serve a smaller and smaller geographic area.
One of the trends is the use of small cell sites that cover
very small geographic areas, such as an individual home or an
individual office. These are sometimes called microcells or
picocells or femtocells. Various service providers offer them.
These may cover an area as small as this hearing room or our
homes.
Because of this increased density and because of this
increased amount of usage, it's become more difficult to
meaningfully distinguish between cell site location and other
geolocation technologies, such as vehicle-based GPS and precise
location technologies that are used for E911 services,
particularly if we consider how revealing this information is
about our daily lives.
Unlike vehicle-based GPS surveillance, we carry our
cellular telephones with us everywhere we go. We have them on
at all times. We take advantage of data services that cause
them to send and receive data without us being aware that it's
occurring in many cases. And we can use them indoors and in
private spaces, unlike GPS devices, which generally work only
outdoors with a view to the satellite.
And then, finally, the precision with which these can be
located is increasing as the density improves, and that trend
is going to continue because service providers have no choice
but to improve density if they want to provide more services--
--
Mr. Sensenbrenner. The gentleman's time is expired.
Mr. Blaze. Oh, I'm sorry. My light wasn't working.
[The prepared statement of Mr. Blaze follows:]
__________
Mr. Sensenbrenner. That light isn't working. So sorry about
that.
Mr. Blaze. Thank you, Mr. Chairman.
Mr. Sensenbrenner. Okay. The Chair will enforce the 5-
minute rule during the question time and first recognizes the
Chair of the full Committee, the gentleman from Virginia, Mr.
Goodlatte.
Mr. Goodlatte. Thank you, Chairman Sensenbrenner, and thank
you for holding this hearing.
I regret that I wasn't able to be here at the outset. So I
am going to use my question time to offer my observations about
geolocation issues, and I will start by saying that the
Electronic Communications Privacy Act, or ECPA, provides a
myriad of protections. Keep in mind that it was enacted well
before our everyday use of cell phones and the Internet, yet
ECPA sets forth the rules that prevent unauthorized Government
access to certain electronic records.
Even when it became law in 1986, ECPA, perhaps
unintentionally, set the standards for the court-authorized
disclosure of geolocation information. A suspect's location is
often only a piece of the puzzle for law enforcement, but
sometimes that piece is a matter of life or death.
In 2001, enhanced or E911 was deployed in the U.S. to
associate a location with the origin of a phone call.
Geolocation is critical in cases of child abductions, lost
hikers, and missing Alzheimer's patients where every minute
counts.
In many other investigations, geolocation is a vital
building block in order to prevent or curtail a crime. Many
criminals use false identities to impede law enforcement so
they may complete their crimes and commit more. In every case,
the identity of the criminal is essential for the investigation
to move forward. The geolocation of dangerous fugitives is
crucial, particularly after they are convicted of crimes like
rape and murder.
Today, many civil liberty concerns center on the abundance
of new technological devices and a lag in the law keeping pace
with this new technology. For instance, the law is well settled
when it comes to police entering a home to arrest someone or
conduct a search. However, complexities arise when, by the use
of cell phones, we are permitting communication providers to
record our location to route a phone call.
We also allow them to record our location in order to
advertize to us or send us instant coupons on our cell phones
when we subscribe to a certain app. Cellular providers often
use cell tower data, but also use GPS technology and our public
Wi-Fi connections to determine where we are.
In updating our Federal surveillance laws, Congress must
weigh our privacy interests with the needs of law enforcement
without stifling commerce and innovation. Last week, the
Department of Justice briefed Judiciary staff on its current
practices in seeking geolocation data. I was encouraged to
learn that the department seeks a court order for every type of
geolocation information it acquires.
At a minimum, the department obtains what is called a
2703(d) Federal court order when it seeks historical cell site
data on a particular cell phone. This cell site data only
provides very general location information, which can vary
widely.
On the other side of the spectrum, the Department of
Justice obtains a search warrant from a Federal judge when it
seeks very accurate real-time location information based on GPS
satellite technology. Such search warrants are based on
probable cause, the same standard specified in the Fourth
Amendment to our Constitution.
While these practices are encouraging, current DOJ
practices do not carry the same weight as Federal statutes. The
privacy interests we have in our cell phones are being
protected today through a patchwork of Federal laws. Our task
is to reexamine current laws and give clarity to individuals,
corporations, innovators, and law enforcement.
I look forward to working with my colleagues to examine
geolocation privacy and surveillance. Our efforts must protect
individual liberties by providing clear guidelines for when and
how geolocation information can be accessed and used.
And I thank Chairman Sensenbrenner and yield back.
Mr. Sensenbrenner. I thank the full Committee Chair.
The Chair recognizes the Ranking Member, Mr. Scott of
Virginia.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Modaferri, you indicated--you talked about a crime
where somebody committed seven robberies. Was any attempt made
to get historic data at those locations to see if one person
had been in all seven sites at the particular times?
Mr. Modaferri. You mean a general subpoena for anybody in
that area? No.
Mr. Scott. Well, if you had--if you got a document--if you
got a tower dump from the seven different sites and cross-
referenced and found that only one person had been at all seven
sites at the same time, is that--would that have been possible
information to get?
Mr. Modaferri. Not logically because all 7 robberies, the
robberies were between 3 and 6 months apart in different
locations in a tri-State area.
Mr. Scott. How long is the tower information kept?
Mr. Modaferri. That I don't know.
Mr. Scott. Anybody know how long tower information is kept?
Mr. Eckenwiler. Ranking Member Scott, it varies according
to provider. Some keep that information for a few months. Some
keep it for up to a year or two.
Mr. Scott. And so, if it was one of the services that kept
it for a year or two, then you could have gotten information
from the seven different locations. Is that true?
Mr. Eckenwiler. If there were, in fact, network events that
would be represented. Certainly when the records are available,
the Government can compel them. Whether or not there would be a
commonality across all seven of those locations is dependent
not just on whether the phone was present, but whether there
was an active communication like the sending or receipt of a
text message or a phone call.
Mr. Scott. The information that you are near a site is not
recorded?
Mr. Eckenwiler. When the Government obtains a tower dump
that you referred to, what is produced is only a set of
affirmative network activities, like the receipt of a call. A
phone call is answered. A phone call is placed. It does not
reflect the presence of all phones that are simply on but not
in active communication at that time.
Mr. Scott. Is that because the information is not available
or because it wasn't--you can't get it?
Mr. Eckenwiler. It's not the practice of the carriers to
log that. There is not a real technical reason to retain
information at that level of granularity.
Mr. Scott. How expensive is it to the either law
enforcement, if they pay for it, or the provider to provide a
tower dump?
Mr. Eckenwiler. I'd say a tower dump is fairly burdensome
for the providers to disclose to law enforcement. And in
practice, what often happens is law enforcement will obtain an
order for a certain set of information, and there is often a
negotiation, as there is in other cases--grand jury subpoenas
and administrative subpoenas--to see if the scope of the
request cannot be narrowed.
Mr. Scott. Ms. Crump, we were talking about probable cause
before you get all of this information. Probable cause is
usually that a crime has been committed and the--what would be
the standard after the crime has been committed to try to catch
people?
Ms. Crump. Are you contemplating the fugitive-type
situation?
Mr. Scott. Yes.
Ms. Crump. I think that the civil liberties groups that
support a probable cause requirement believe that in general
the standard should be probable cause that a crime has been
committed but also agree that it is important that fugitives be
apprehended and don't have an objection to cell phone location
data being used in that circumstance.
So a standard, for example, that there was an arrest
warrant out for someone and that location information was
useful to effectuate that arrest warrant is not something that
anyone would object to.
Mr. Scott. There is an expectation that the Government
isn't following you everywhere you go. How would you deal with
emergency situations?
Ms. Crump. We support an exception such as that in place in
the GPS Act. Earlier, Mr. Goodlatte set out a number of
examples of emergency situations--a child abduction, a lost
hiker, and situations like that. I think everyone agrees that
in those types of circumstances, it is important that law
enforcement be able to act immediately and that if there's not
enough time to secure a warrant, that they should be able to
proceed on an emergency basis and go ahead and locate someone.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Sensenbrenner. Thank you.
The junior Chairman emeritus of the Committee, the
gentleman from Michigan, Mr. Conyers?
Mr. Conyers. Well, I thank the senior Chairman emeritus for
recognizing me.
This is an unusual hearing in that I can't remember ACLU
ever quoting Justice Alito before, nor can I remember all of
the emeritus being on the same bill of a Republican Member of
the Committee, and the general agreement actually among the
four witnesses. The only difference of view that I have been
able to note is the difference between a probable cause
standard and a 2703(d).
And I was wondering do you firmly hold to that, to the
2703(d) order, Mr. Eckenwiler? Or are you prepared to
reluctantly go along with the probable cause standard that is
in the bill?
Mr. Eckenwiler. Mr. Conyers, I think, as Mr. Modaferri
pointed out, one of the difficulties with adopting a probable
cause standard for that less precise class of location data,
cell site information, has significant potential to impair law
enforcement investigations.
Think of this as the building block of--it's one of the
building blocks for an investigation. In some cases, it may be
used in conjunction with bank records. It may be used in
conjunction with telephone toll records. There are various
pieces that go into an investigation, especially at those
earliest stages when probable cause has not yet been developed.
And so, I think there would be significant costs to law
enforcement if an across-the-board probable cause standard were
to be adopted. But I would also refer you to the language I
quoted earlier from Jerry Berman, the executive director of
EFF, testifying before joint House/Senate Judiciary Committee
hearing.
Pointing out that the 2703(d) standard is, in fact,
meaningful, Mr. Berman pointed out in his testimony court order
protection will make it much more difficult for law enforcement
to go on fishing expeditions. And he pointed out in that same
testimony that law enforcement would have to meet this
particular showing, this need to establish access to these
records based on specific and articulable facts.
So law enforcement has to tell a story. It's not like
certain other kinds of compulsory process, a grand jury
subpoena, which merely issues from the prosecutor. It's not
like a pen register order to monitor the noncontent activity
on, say, a telephone line, the numbers dialed out or in. Those
kinds of orders, under the existing statute, simply require a
certification to a judge, who has no discretion.
2703 is different. A factual showing has to be made to the
court, which the court may then weigh and, based upon that
weighing of the showing, may grant or deny the application.
Mr. Conyers. Professor Blaze, I know you have a slightly
different view?
Mr. Blaze. So I think this is one of the areas where Mr.
Eckenwiler and I disagree. The gap between these different
technologies is narrowing, I think, sufficiently that we can't
really make meaningful distinctions between how revealing they
are.
So if we understand GPS location technology to be revealing
enough to warrant one standard, I don't see any technological
basis to understand cell site location as being sufficiently
less precise or less revealing to merit a different standard.
The gap is narrowing in how precise they are, and in some
cases, cell site location can reveal location information when
vehicle-based GPS would be unable to, such as when the target
is indoors.
Mr. Conyers. Well, I guess the probable cause standard
based on the Fourth Amendment is more compelling. But you know,
when you read these off the top, Chairman Sensenbrenner, you
could probably use either one to accomplish your goal.
And I thank you for the time.
Mr. Sensenbrenner. I thank the gentleman from Michigan.
The gentleman from Louisiana, Mr. Richmond?
Mr. Richmond. Thank you, Mr. Chairman.
Let me see, my first question, and I guess I will direct
this question to Ms. Crump. Do cell phone users ever find out
that their geolocation information has been divulged?
Ms. Crump. Thank you for the question.
That highlights one of the key problems with this form of
tracking. On occasion, cell phone users do learn that they are
tracked. But in order for that to happen, in general, they have
to be prosecuted, and then that evidence has to be used in the
case-in-chief.
That means that whenever someone is tracked and they are
innocent or the Government chooses not to disclose that
information, individuals never learn they were subject to that
technique. That has had the effect of meaning that for a long
time, the Government's policies and procedures for engaging in
cell phone tracking have been shrouded in secrecy.
And we believe that it's important that individuals who are
subject to this form of surveillance receive notice, at least
after the fact when the investigation is closed, because that
will increase the public's awareness and information about how
the Government is balancing civil liberties and law enforcement
interests.
Mr. Richmond. Now is that--is your position pretty
consistent with what they do with wiretaps?
Ms. Crump. Yes, that's true.
Mr. Richmond. So after a wiretap, they do disclose to the
person that they were subject to a wiretap?
Ms. Crump. Yes. That's the case.
Mr. Richmond. Do they also disclose that to the person who
may have been on the phone with someone on a wiretap that they
were--that their call was intercepted or that you all don't do
that? Do you know that, Mr. Eckenwiler?
Ms. Crump. The answer--oh.
Mr. Eckenwiler. Yes. The--in general, the requirement under
Section 2518 of Title 18 requires that notice be given. Often
the court may direct the scope of the disclosure, but it is not
simply limited to the person who is named in the wiretap order.
So, in direct response to your question, yes, other
communicants with whom that person has, say, spoken on the
phone would also typically receive notice.
Mr. Richmond. Is there a timeframe on that notice or----
Mr. Eckenwiler. The statute, Title III, the Wiretap Act
currently says that the--what's called the inventory must be
given within 90 days after the termination of the wiretap,
although the delay of notice may be extended for good cause
shown to the issuing court.
Mr. Richmond. And I don't know if we discussed it, but I
will go back to you, Ms. Crump. What standard do you think
should be applied to the one-time ping or the real-time looking
at where a person is once?
Ms. Crump. Our view is that a one-time real-time tracking
ping should also require probable cause. The reason for that is
you do not know, generally speaking, when you conduct that ping
whether someone is going to be in a, for instance, a private
place where they have a reasonable expectation of privacy. And
the better rule is a probable cause requirement across the
board.
Mr. Richmond. We have mentioned a couple of times about
reasonable expectation of privacy, and I guess as technology
evolves, at some point, do you think there is going to be a
discussion that if you have your cell phone with you, you
probably don't have a reasonable expectation of privacy?
Ms. Crump. No. I don't think people should have to give up
their privacy rights simply because today's modern era
essentially requires people to have a cell phone in order to
participate. It has traditionally been the case that
individuals have been able to move around public and private
places without being subject to the continuous monitoring and
permanent recording of their movements.
I think that's an important freedom and that it shouldn't
be sacrificed just because we now have cell phones.
Mr. Richmond. Well, you mentioned the recording of their
movements, and I guess that one is probably a lot easier than
the real-time where you are. And I wouldn't want anyone
recording my movements, but do I have a reasonable expectation
of privacy that if I was in the audience, no one would know I
was here?
I mean, as it evolves, the question is how realistic it
becomes and how reasonable that expectation is? And that is why
I pose it because at some point, I think that question will
become very relative to all of the conversations that we have
in terms of our privacy.
Mr. Eckenwiler, did you want to add to that?
Mr. Eckenwiler. It's certainly true, Congressman Richmond,
that there are different kinds of location data, many of which
are overtly public. People who post on social media and choose
to turn on their location disclosure feature, I think it would
be abundantly clear that there is no expectation of privacy
that attaches to that kind of location information.
Mr. Richmond. I thank you, and I yield back, Mr. Chairman.
Mr. Sensenbrenner. I thank you.
The gentlewoman from California, Ms. Chu?
Ms. Chu. Thank you, Mr. Chair.
For the panel, I would like to ask this question. We trust
law enforcement to use their own discretion in deciding whom to
physically follow around for extended periods of time. Why
can't law enforcement be trusted to exercise their discretion
when engaging in similar tracking using GPS systems or cell
phones?
Isn't using electronic tracking just more efficient, or is
there something fundamentally different about electronic
tracking? Ms. Crump?
Ms. Crump. Thank you for the question.
There is something fundamentally different about electronic
tracking. Physical tracking is by necessity limited by officer
resources. And because that form of tracking requires the
expenditure of tremendous resources, that itself acts on a
check against abusive forms of that tracking.
In contrast, electronic tracking is wholly concealed.
Individuals don't know it's happening, but it can also be done
in a very resource-efficient way, which means that legal
protections against it are all the more important.
Ms. Chu. Mr. Blaze?
Mr. Blaze. If I might just add to that? And the electronic
tracking, unlike physical surveillance, follows us wherever we
go, particularly cell phone-based electronic tracking.
It follows us indoors into private spaces, in places where
physical surveillance would be unable to track somebody, at
least undetectably. So there is a technological distinction as
well.
Ms. Chu. Thank you.
Mr. Eckenwiler. Thank you for the question, Congresswoman
Chu.
I agree that a probable cause standard is appropriate for
real-time GPS or other precise location data. Let me give you a
couple of reasons.
One is that it is not event based. Cell site information is
derived from specific overt user activity, a call, the sending
of a text message. And so, that's generated in the network. The
network has to know about that.
The network can't not know about it anymore than I can dial
a phone number without telling the phone company what number I
want to call. It just is an innate part of the transaction. But
the acquisition of precise location information may be done, as
I indicated in my opening remarks, even when there is not an
active communication in progress on the device.
What's also I think significant here, even before anybody
had cell phones, the Supreme Court indicated in a case in the
early 1980's with respect to physical tracking devices that
when a tracking device actually reveals the presence of
something within a protected area that's not otherwise
observable by the police, that that can implicate a reasonable
expectation of privacy. That's the Karo case, K-a-r-o.
Now there's an important distinction here, and that is
between whether the item is merely in a protected area or
whether the information about it reveals that it's there. So
it's not just enough that something is in some area at the time
that location data like cell site is acquired. But if the
information is so precise as to place it inside a particular
home, which is what happened with the physical GPS tracker in
Karo, then, yes, indeed. If you apply that same logic to cell
phone GPS, it would follow that there's an expectation of
privacy.
Ms. Chu. Yes, in fact, I wanted to follow up by saying that
the majority opinion in Jones found that a search occurred
because law enforcement had committed a trespass by fixing this
GPS tracking device to a private vehicle without a valid
warrant. Does that means there is less of a concern when
location tracking is done without fixing a device, such as
using cell phone location data?
Ms. Crump?
Ms. Crump. No, I don't think there's any less of an
expectation of privacy. The one opinion did focus on trespass,
but five other justices focused on the nature of the intrusion
of being tracked. To be sure, that case involved attachment of
a GPS device, but I don't think, practically speaking, whether
the technological method is attachment of a GPS device or a
cell phone makes any difference.
Although I'm always glad when there's agreement between the
Department of Justice and the ACLU on a question, however we
get there, I do think the distinction between whether the
location data is generated by the network or an act of
intrusion into the phone is overly formalistic, and the more
common sense approach is to focus on the privacy intrusion and
what people's expectations are.
Mr. Sensenbrenner. The gentlewoman's time has expired.
And the Chair yields himself 5 minutes to wrap up.
Last year, the court handed down the Jones decision, and
about the only thing the justices could agree upon was that
there was a search that occurred. And then they were all over
the map under what circumstances, a judicial review, and I
don't want to talk about what type of specific review would be
or what kind of warrant or 2703 device would be.
But I would like to each ask of the witnesses whether they
think it would be wise for Congress to try to set some markers
on what needs to be done in advance, if anything, with various
types of use of GPS equipment, or the topic of our first
hearing on ECPA, largely to prevent a court decision from
coming down years from now which might reopen or place in
jeopardy cases that already had been filed.
And I would like to ask each of the four witnesses to
answer that question. Meaning do we need a bill, and what
should the bill contain?
Mr. Eckenwiler. Thank you, Mr. Chairman.
Just so I understand the question, is this directed to
physical GPS, or do you still have in mind phone GPS?
Mr. Sensenbrenner. Both.
Mr. Eckenwiler. As to physical GPS, such as that that was
at issue in the Jones case, it seems to me the Supreme Court
has laid down a pretty clear marker, and there is already--at
least in Federal Rule 41, there has been since 2006 a set of
procedures for applying for and obtaining a warrant to install
and use a physical tracking device. So it's not clear to me
that there's a particular need for this Committee to act in
that area.
Mr. Chairman, you mentioned prior cases, cases that may
have been investigated or charged prior to a particular court
decision. What's interesting is that in the roughly 14 months,
15 months since Jones came down, that issue has come up across
the country in various courts. And generally speaking, Jones
has not resulted in the suppression of evidence for pre-Jones
law enforcement conduct. The short answer is there's a good
faith exception.
And then to respond briefly to your question about phone
location information, I would simply reiterate what I said
earlier. I think that would come at significant expense to
important law enforcement equities. As to cell site location
information, I don't think that it would be inappropriate at
all to clarify, and in fact, I've mentioned in my list of areas
for the Committee's further inquiry the potential need to amend
Rule 41 for prospective GPS acquisition on phones.
Mr. Sensenbrenner. Mr. Modaferri?
Mr. Modaferri. Thank you.
I would say that from my perspective as a detective, we do
need clarification. We do need an act to clarify what Mr.
Eckenwiler's--the points that Mr. Eckenwiler made because we
are acting somewhat in the dark in certain areas. And as
technology evolves, we need a law that can address things as it
changes.
But I wouldn't--I'm not a lawyer so I won't get into the
details of Mr. Eckenwiler.
Mr. Sensenbrenner. Ms. Crump?
Ms. Crump. The short answer to your question is, yes, it is
essential that Congress act. It took many years for the court
to even reach the Jones decision. GPS tracking had been going
on for a long time, and it only partially answered the
question. And it's important that this body step in and clarify
the law so that everyone understands what their rights are.
Second, I think law enforcement and civil liberties
organizations such as the ACLU at the least agree that the
current system is unclear and in a state of chaos with judges
applying different standards to identical forms of tracking in
different States and that it's important that the law be
uniform.
Mr. Sensenbrenner. Mr. Blaze?
Mr. Blaze. Thank you.
I'm also not an attorney. So I will answer from the
technical perspective. Any legislation that attempts to
distinguish between the revealing and intrusiveness of
vehicular GPS, precise cellular geolocation, and cell site
geolocation will be doomed to become increasingly meaningless
as those technologies converge in their precision.
Mr. Sensenbrenner. That concludes this hearing.
Without objection, all Members will have 5 legislative days
to submit additional written questions for the witnesses and
additional materials for the record.
The gentleman from Virginia?
Mr. Scott. Mr. Chairman, I ask unanimous consent that a law
review article by Stephanie Pell, published in the Berkeley
Technology Law Journal, be entered in the record.*
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*See Appendix.
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Mr. Sensenbrenner. Without objection.
And without objection, the hearing is adjourned.
[Whereupon, at 11:06 a.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Material submitted by the Honorable Robert C. ``Bobby'' Scott, a
Representative in Congress from the State of Virginia, and Ranking
Member, Subcommittee on Crime, Terrorism, Homeland Security, and
Investigations
Questions for the Record submitted to Mark Eckenwiler,
Senior Counsel, Perkins Coie LLP*
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*The Subcommittee had not received a response from this witness at
the time this hearing record was submitted for printing, September 24,
2013.
Response to Questions for the Record from Peter A. Modaferri,
International Association of Chiefs of Police
Response to Questions for the Record from Catherine Crump,
Staff Attorney, American Civil Liberties Union (ACLU)*
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*The Subcommittee had not received a response from this witness at
the time this hearing record was submitted for printing, September 24,
2013.
Response to Questions for the Record from Matt Blaze, Professor,
University of Pennsylvania