Senator Kirk Joins Wyden as Cosponsor of Digital Surveillance Legislation

The GPS Act Provides Needed Legal Clarity for Use of Geolocation Information

Washington, D.C. – Surrounded by technology that was considered cutting edge when major digital surveillance laws were written, U.S. Senator Ron Wyden (D-Ore.) welcomed U.S. Senator Mark Kirk (R- Ill.) 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. The GPS Act was introduced in June by Wyden and Representative Jason Chaffetz (R-Utah).

Wyden and Kirk 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). In 1986, when ECPA was passed, 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.

“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 law enforcement and the telecom industry clear guidelines on how location data can be used, while giving law-abiding consumers confidence that their privacy rights are being respecting. Congressman Chaffetz and I couldn’t have found a better Senate partner than Mark Kirk, who is already proving himself to be a voice for common-sense solutions.”

“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.”

“It’s great to have the support of Senator Kirk” said Chaffetz. “It is the job of Congress to protect and defend the United States Constitution and the personal liberties provided to American citizens under the Fourth Amendment. Senator Kirk’s co-sponsorship of this bi-partisan legislation sends another signal to Americans that Members of Congress are committed to defending their liberties.”

The American Civil Liberties Union and the Competitive Enterprise Institute are two groups who support the GPS Act.

“An electronic privacy law that was written in 1986 is in desperate need of an update,” said Laura W. Murphy, director of the ACLU’s Washington Legislative Office. “As we live more and more of our lives online, it's crucial that our information and communications receive vigorous constitutional protections. We have seen how rapidly technology has outpaced our privacy rights and Sen. Wyden and Kirk's bill is a good first step toward rectifying that disparity.”

“The reforms proposed in the GPS Act would benefit American businesses that offer innovative mobile ecosystems and the consumers who enjoy these platforms,” said Ryan Radia of the Competitive Enterprise Institute. “If the burgeoning mobile marketplace is to realize its full potential, firms must have the freedom to offer robust privacy assurances to their users. The GPS Act would mark a major step forward in that direction.”

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.

For more information on the GPS Act visit: http://wyden.senate.gov/issues/legislation/details/?id=b29a3450-f722-4571-96f0-83c8ededc332