Kirk Joins Wyden as Cosponsor of Digital Surveillance Legislation
The GPS Act Provides Needed Legal Clarity for Use of Geolocation Information
"It's time our digital privacy laws go ‘Back to the Future' for a sorely needed update."
Washington, D.C. - Surrounded by technology that was considered cutting edge when major digital surveillance laws were written, U.S. Senator Mark Kirk (R-Ill.) today joined Senator Ron Wyden (D-Ore.) as a cosponsor of the Geolocation Privacy and Surveillance Act (GPS) which provides sorely needed legal clarity for the use of electronically-obtained location data that can be used to track and log the location and movements of individual Americans.
Sens. Kirk and Wyden made the announcement at a Retro Tech Fair sponsored by the Center for Democracy in Technology commemorating the 25th anniversary of the Electronic Communications Privacy Act (ECPA) - the last time digital surveillance rules were passed by Congress. At that time, smart phones, tablet computers and commercial GPS devices did not exist and the internet was in its infancy. The GPS Act will give law enforcement and the telecommunications industry the rules needed for how data compiled by the newest technologies can be used and promulgated.
"The technological advancements we've seen in the past 25 years have revolutionized the way we live our lives, but unfortunately surveillance protections have not kept pace," Senator Kirk said. "It's time our digital privacy laws go ‘Back to the Future' for a sorely needed update. I'm grateful to join with Sen. Wyden on this important issue to ensure that we balance the rights of our citizens without compromising the effectiveness of our law enforcement."
"Twenty-five years can seem like several lifetimes when it comes to advancements in technology," Wyden said. "The rules that governed technology in 1986 don't always make sense in 2011. This legislation offers clear guidelines to law enforcement and the telecom industry on how location data can legally be used against American citizens. I am excited to welcome Senator Kirk to the effort to balance the need to protect the privacy of law-abiding Americans with the need for law enforcement to effectively use geolocation data to make all Americans safer."
Overall the GPS Act:
* Provides clarity for government agencies, commercial service providers, and the public regarding the legal procedures and protections that apply to electronic devices that can be used to track the movements of individual Americans. In a recent memo, the Congressional Research Service identified a lack of cohesion throughout criminal court jurisdictions over what standards and procedures must be met in order for location information gathered though electronic devices to be used in court. This lack of clarity has led to confusion among law enforcement and prosecutors, who waste valuable time and resources litigating and appealing what should be clear cut rules.
* Requires the government to show probable cause and get a warrant before acquiring the geolocational information of a U.S. person, while setting out clear exceptions such as emergency or national security situations or cases of theft or fraud.
* Applies to all law enforcement acquisitions of the geolocational information of individual Americans without their knowledge, including acquisition from commercial service providers as well as from tracking devices covertly installed by the government.
* Applies to real-time tracking of a person's movements, as well as the acquisition of records of past movements. (Real-time tracking = "Where is John Smith right now?" Acquisition of records of past movements ="Where did John Smith go on St. Patrick's Day?")
* Closely tracks existing wiretapping laws with regard to court procedures for getting a warrant, penalties for acting without a warrant, exclusivity of the authority, authorization without a court order, etc.
* Creates criminal penalties for surreptitiously using an electronic device to track a person's movements that parallel those for wiretapping. (Currently, if a woman's ex-husband taps her phone, he is breaking the law. This legislation would treat hacking her GPS to track her movements as a similar offense).
* Prohibits commercial service providers from sharing customers' geolocational information with outside entities without customer consent.
Senator Wyden also agreed to support a future amendment by Senator Kirk that would clarify that the GPS Act does not establish a new cause of action against law enforcement officers or telecommunications companies, and does not modify or repeal any existing cause of action.