Today I testified before the House Judiciary Crime, Terrorism and Homeland Security Subcommittee in support of the Geolocational Privacy Surveillance Act, a law that would require law enforcement to obtain a warrant based upon probable cause before tracking a person by (for example) attaching a GPS device to their car or getting records from their cell phone provider. (My written testimony is here).
It was a real honor to testify before Congress—I had not testified before, but I have devoted years of my professional life to understanding the ways in which law enforcement agencies use our cell phones to track us. I was grateful for the chance to present that knowledge to the very people who have the opportunity to enact meaningful privacy protections.
This hearing was particularly valuable because warrantless GPS tracking is something that seems to concern members of both parties. Although some committee members were clearly hostile to the bill’s aims, support and opposition did not amount to the usual lineup of “D”s vs. “R”s. In fact, while many Democrats supportive of the bill, the GPS Act is Republican legislation authored by Rep. Jason Chaffetz (R-UT) and co-sponsored by Republicans including the subcommittee’s chairman, Rep. Sensenbrenner (R-WI).
One point that seemed of broad concern, even among members who may disagree with the ACLU’s view, was the complete morass of contradictory standards that cover electronic location tracking in this country. The witnesses testifying against the bill might not have agreed with the ACLU on the ultimate legal standard, but no one seemed to think it makes much sense for two different towns in the same state to apply starkly different rules to access location tracking. And, as a witness for industry testified, telecommunications companies are often stuck in the middle, trying to comply in a uniform and consistent way to hopelessly inconsistent requests.
An issue that generated a significant number of questions is whether there is a meaningful distinction between physical surveillance on the one hand and electronic surveillance on the other. I was asked more than once: if it’s ok for someone to be tracked by a police officer in a squad car, or by a helicopter, and no warrant is necessary for that, then why isn’t it okay to track people using cell phones and GPS without a warrant?
I think there is a meaningful distinction, which I tried to describe to the members. When tracking someone’s movements requires assigning an officer or team of officers to track them at all times, that expenditure of resources will serve as a deterrent to abuse. In other words, there is a natural limit to the amount of surveillance that can be carried out, and that scarcity helps ensure that it will be used prudently. GPS and cell site tracking gets rid of that natural boundary, because it makes tracking incredibly cheap and easy. An officer can sit in the comfort of a stationhouse and track one or many people on a laptop. That makes legal barriers all the more important. It is only the supervision of a judge and the requirement of probable cause that are going to deter abusive use of this technology.
The GPS Act is a good piece of legislation. It requires a warrant for most investigations but also contains carefully crafted exceptions to make sure that in situations of genuine emergency, law enforcement can act without first going to a judge. I hope I was able to articulate clearly why imposing a warrant requirement is so important. I was heartened when, part way through the hearing, Rep. Polis (D-CO) said he had been persuaded to co-sponsor the bill.
There is simply no substitute for having a neutral and detached magistrate evaluate whether there is a genuine need to use an invasive law enforcement technique. That is why the GPS Act is such an important bill. Innocent Americans should not have to fear that their personal electronic devices may be used to track them for no good reason.