USE OF CELL PHONE TOWER DATA - U.S. SUPREME COURT DECISION LEADS CONGRESS TO CONSIDER PROPOSED FEDERAL STATUTE REQUIRING POLICE TO GET SEARCH WARRANT - EMERGENCY 48-H0UR EXCEPTION: “IMMEDIATE DANGER OF DAETH OR SERIOUS PHYSICAL INJURY”
On May 16, 2012, Congress heard testimony on the proposed “Geolocational Privacy and Surveillance Act.”
An emergency situation includes “immediate danger of death or serious physical injury.”
This bill was written after the U.S. Supreme Court held (9 to 0) on Jan. 23, 2012 in U.S. v. Jones, that that the attachment of a GPS device to a vehicle to monitor a drug dealer’s movements on public streets, constitutes a “search or seizure” within the meaning of the Fourth Amendment and requires a search warrant.
The May 16, 2012 testimony before Congress included law enforcement officials cautioning about restricting access to cell phone tower information. However, privacy advocated applauded the new restrictions on such information.
“Law enforcement representatives and privacy advocates clashed on Capitol Hill today over a bill that would require law enforcement to get a search warrant before getting cellular phone data that can track the user’s location.
Right now, Congress and most states have not enacted statutes to regulate how law enforcement can get access to the tracking data kept in more than 322 million smartphones and cellular phones in the United States.
That data, when analyzed, can paint a clear picture of a person’s life – trips to a psychiatrist, the strip club or a paramour’s home – that violate a right to privacy, representatives from the ACLU and the cell phone industry told a House Subcommittee on Crime, Terrorism, and Homeland Security.”
The proposed federal law would have an emergency situation exception, but it applies only to law enforcement officers “specifically designated” by specific senior prosecutors to contact the cell phone companies, and a search warrant application must be filed with 48 hours of the intercept.
“Sec. 2604. Emergency situation exception
`(a) Emergency Situation Exception- Notwithstanding any other provision of this chapter, any investigative or law enforcement officer, specially designated by the Attorney General, the Deputy Attorney General, the Associate Attorney General, or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State, may intercept geolocation information if--
`(1) such officer reasonably determines that an emergency situation exists that--
`(A) involves--
`(i) immediate danger of death or serious physical injury to any person;
`(ii) conspiratorial activities threatening the national security interest; or
`(iii) conspiratorial activities characteristic of organized crime; and
`(B) requires geolocation information be intercepted before an order authorizing such interception can, with due diligence, be obtained;
`(2) there are grounds upon which an order could be entered to authorize such interception; and
`(3) an application for an order approving such interception is made within 48 hours after the interception has occurred or begins to occur.
`(b) Failure To Obtain Court Order-
`(1) TERMINATION OF ACQUISITION- In the absence of an order, an interception of geolocation information carried out under subsection (a) shall immediately terminate when the information sought is obtained or when the application for the order is denied, whichever is earlier.
`(2) PROHIBITION ON USE AS EVIDENCE- In the event such application for approval is denied, the geolocation information shall be treated as having been obtained in violation of this chapter and an inventory shall be served on the person named in the application.”
The U.S. Supreme Court decision U.S. v. Jones, that that the attachment of a GPS device to a vehicle to monitor a drug dealer’s movements on public streets, constitutes a “search or seizure” within the meaning of the Fourth Amendment and requires a search warrant, was based on the unusual fact that investigators in this drug case had obtained a search warrant, but unfortunately they were not able to locate the vehicle and attach the GPS device until the day after the 10-day search warrant had expired.
“In 2004 respondent Antoine Jones, owner and operator of a nightclub in the District of Columbia, came under suspicion of trafficking in narcotics and was made the target of an investigation by a joint FBI and Metropolitan Police Department task force. Officers employed various investigative techniques, including visual surveillance of the nightclub, installation of a camera focused on the front door of the club, and a pen register and wiretap covering Jones’s cellular phone.
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[They obtained a search warrant but did not attach the GPS device within the 10 days required by the warrant.] On the 11th day, and not in the District of Columbia but in Maryland,1 agents installed a GPS tracking device on the undercarriage of the Jeep while it was parked in a public parking lot. The Government used the device to track the vehicle’s movements, and once had to replace the device’s battery when the vehicle was parked in a different public lot in Maryland. By means of signals from multiple satellites, the device established the vehicle’s location within 50 to 100 feet, and Government computer. It relayed more than 2,000 pages of data over the 4-week period.
Footnote 1: In this litigation, the Government has conceded noncompliance with the warrant and has argued only that a warrant was not required. United States v. Maynard, 615 F. 3d 544, 566, n. (CADC 2010).
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Government derived locational data admitted in the first trial, which connected Jones to the alleged conspirators’ stash house that contained $850,000 in cash, 97 kilograms of cocaine, and 1 kilogram of cocaine base. The jury returned a guilty verdict, and the District Court sentenced Jones to life imprisonment.”
The U.S. Supreme Court held that the evidence obtained by the warrantless use of the GPS device violated the 4th Amendment. “By attaching the device to the Jeep, officers encroached on a protected area.”
Legal Lessons Learned: We can expect to see more federal and state legislators introducing bills to protect privacy interests of the public. Our trade associations need to carefully review these proposed laws to help assure broad emergency exceptions.