Cops, ACLU clash over GOP bill that would limit cellphone tracking

The Geolocation Privacy and Surveillance Act, sponsored by Reps. Jason Chaffetz (R-Utah) and Bob Goodlatte (R-Va.), would require law enforcement officials to obtain a warrant based on probable cause before tracking individuals using geolocation data from their mobile phones.

But at a Thursday hearing of the House Judiciary subcommittee on Crime, Terrorism and Homeland Security, Federal Law Enforcement Officers Association President John Ramsey complained that the bill was “overly broad” and would hinder law enforcement.

Ramsey said requiring warrants for tracking could be the start of a slippery slope.

“What is the next step?” he asked. “Are we going to do away with grand jury subpoenas and move to the issuance of search warrants for companies to disclose corporate and financial records?

“Who are we protecting with this legislation,” he asked, “the innocent or the criminals?”

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American Civil Liberties Union staff attorney Catherine Crump said the bill balances the rights of citizens and law enforcement needs by allowing for exceptions that allow law enforcement “appropriate flexibility.”

She said the bill would require a warrant in the “vast majority of situations” in which officials have time to approach a judge to obtain a warrant before tracking individuals.

Rep. Trey Gowdy (R-S.C.) asked Crump what the legal standard is for physically following someone by land or by air. Crump replied that there isn't a standard.

But when he asked if a grand jury prosecutor could subpoena historical GPS data in an investigation, she said that wasn't possible because the data would be protected by the Stored Communications Act.

Maryland state’s attorney Joseph Cassilly, a past president of the National District Attorneys Association, said the bill isn't necessary because police haven’t abused their ability to track people. “You can't show any evidence … that shows pervasive abuse by law enforcement,” he said.

Cassilly said the bill would prevent law enforcement from “lawfully acquiring information” that it needs to catch violent criminals.

He said probably cause is a “high standard,” but added there should be firm guidelines to how law enforcement obtains tracking information. “I think there should be a standard but I don't think the probable cause standard would be appropriate,” he said, suggesting that reasonable suspicion is a more realistic test to use.

But Crump said reasonable suspicions is “too low” a standard.

Probable cause is a “basic requirement under the Constitution,” she said.

Goodlatte asked witnesses what the experiences have been in jurisdictions that currently require probable cause before tracking.

Crump said that a “small number” of jurisdictions in Hawaii, Kansas and Kentucky have adopted probable cause without problems.

“I don't think those jurisdictions would willingly put their citizens in danger,” she said. “They believe they can accommodate legitimate law enforcement needs,” she said.