Investigative and Security Professionals for Legislative Action had great success at the federal level in 2011. Although a number of bills were introduced in the 112th Congress to amend federal surveillance laws, thus far, none have passed.
Due to the rapid advances in technology Congress has attempted to address conflicts between technological innovation and privacy interests. At the same time the courts have been asked to resolve similar issues, particularly to determine whether the Fourth Amendment’s protection against unreasonable searches and seizures precludes police agencies from placing a GPS tracking device on a person’s vehicle without a warrant. Pending before the U.S. Supreme Court is the matter of United States v. Jones, 131 S. Ct.3064 (2011). It is our hope that the government wins. If not, our position is greatly weakened in those states that presently allow GPS tracking use by private sector investigators conducting lawful investigations. A loss by the U.S. will adversely affect our lobbying efforts regarding laws proposed to limit GPS use. Coupled to this issue are concerns of cell phone location tracking.
In New York, the matter of Michael Cunningham v. New York State Department of Labor, New York Supreme Court, Appellate Division, Third Department No. 512036, in a 3-2 decision, the court ruled that the NYS Department of Labor was within its rights when it utilized GPS tracking to follow an employee during and after work hours and while on vacation with his family. It dismissed the claims of Michael Cunningham, a former Labor Department employee, that the use of a GPS tracking device constituted an illegal search and seizure. The state relied on GPS data to show that Cunningham had submitted false expense sheets and other travel records. The court ruled that because the device was only monitored by an investigator during work hours its use was constitutional. “To establish a pattern of serious misconduct, it was necessary to obtain pertinent and credible information over a period of time.” In a dissenting opinion it was argued that while the use of a GPS device to track employees suspected of misconduct is reasonable during work hours, the scope of the use in Cunningham’s caseundefined was unconstitutional. “(The Labor Department’s) valid interest in (Cunningham’s) whereabouts extended only to the hours of his workday, yet the device placed on (his) personal vehicle collected data 24 hours a day, seven days a week.”
A bipartisan bill S. 1212 and H.R. 2168, the Geolocational Privacy and Surveillance Act, or GPS Bill, offered by Senator Ron Wyden [D-OR] and Representative Jason Chaffetz [R-UT-3], seeks to clarify and establish the standards government must meet to monitor an individual’s movements. It would effectively ban GPS use by private investigators without permission of the vehicle’s owner. The proposed legislation calls for a broad prohibition against the disclosure or use of geolocation information making it unlawful for any person to (A) intentionally intercept geolocation information pertaining to another person; (B) Intentionally disclose geolocation information pertaining to another person when it is known that information was obtained in violation of the act; (C) intentionally use any geolocation when it is known that information was obtained in violation of the act; or (D) intentionally disclose information that was lawfully obtained under the act, but not authorized to be released to third parties.
Under this GPS bill the government’s only means for acquiring geolocation information would be pursuant to a warrant under Rule 41 of the Federal Rules of Criminal Procedure or the Foreign Intelligence Surveillance Act (FISA) of 1978. The Stored Communication Act or Pen Register/Trap and Trace Act would no longer be the method whereby such information is required.
In an emergency or exigent circumstances the police or emergency responders are allowed to use geolocation information to a person requesting assistance, such as a 911 call or where police “believe that the life or safety of the person is threatened or to assist the person.” There are other permitted circumstances for such methods by the
US Attorney General and states’ Attorneys General to intercept geolocation information without a warrant. An exclusionary rule is also contained in the GPS bill that no evidence acquired in violation of the act may be received in evidence in any trial or judicial proceeding. This contrasts between the ECPA which does not contain an exclusionary rule.
A coalition of industry representatives, including Apple, AT&T, and Google, has joined with the ACLU and the Constitution Project to form the “Digital Due Process Coalition to advocate amending various federal surveillance laws. Senate Judiciary Chairman Patrick J. Leahy [D-VT] introduced S. 1011, the Electronic Communications Privacy Act Amendments of 2011 which would not only amend the 25-year old ECPA but the Stored Communications Act as well.
Representative Edward J. Markey [D-MA-7] in a December 2, 2011 letter to the chairman of the Federal Trade Commission raised privacy issues and claims of potential violations of Section 5 FTC “unfair or deceptive acts or practices” concerning reported technology developed by Carrier IQ, a cell phone monitoring provider. An item published in “Wired” magazine was an impetus for Representative Markey’s writing to the FTC. The effects of the reported technology are apparently applicable to Android, BlackBerry and Nokia users. Representative Markey’s letter may be found at:
http://markey.house.gov/docs/2011_1201_letter_to_ftc.pdf
Wireless carriers will be claiming that the data of 150 million potential users presently does not violate their privacy and the carriers’ use of this software is only to diagnose smartphone and network issues. Senator Al Franken [D-MN] chairs the Senate Privacy Subcommittee and has also entered into the fray. Earlier in 2011, he held hearings on the S. 1223, the Location Privacy Protection Act of 2011. a bill he cosponsored with Senator Richard Blumenthal [D-CT]. There has been speculation that the FBI may be handling an investigation regarding Carrier IQ.
A class action lawsuit has also been filed in the USDC for the District of Delaware in Pacilli et al v. Carrier IQ, Inc. et al. The complaint may be found at:
There are numerous other bills pending, as well as proposed FTC regulations, regarding Internet tracking and keystroke monitoring about which ISPLA has reported throughout 2011 to members via email listservs. As we enter the Second Session of the 112th Congress, we can expect more action from Representative Markey, who also co-chairs the bipartisan Congressional Privacy Caucus. He has been outspoken on providing privacy protections of personal consumer information. He is a longtime advocate of “opt-in” remedies. He has investigated the data privacy and security practices of Amazon, Apple, Facebook, and Google, and the four major wireless carriers as well as the Social Security Administration. He is our profession’s “Nemesis” with a history of refusing to negotiate with private investigators regarding our concerns. Expect to hear more from him in 2012!
The following link provides the December 1, 2011 Congressional Research Service report entitled Governmental Tracking of Cell Phones and Vehicles: The Confluence of Privacy, Technology, and the Law.
http://www.fas.org/sgp/crs/intel/R42109.pdf
The writer of the CRS report in his conclusion states: “Congress, the courts, and the people will continue to grapple with ‘what limits there are upon [the] power of technology to shrink the realm of guaranteed privacy.’ …Several Members of Congress have introduced legislation to mend this perceived problem, and overhaul the current federal regime.”
We anticipate that in 2012 privacy legislation interest will remain strong with reports of security information breaches and Identity theft continuing to remain in the headlines. We expect that the Rupert Murdoch fiasco over tapping cell phone messages in the UK may become a larger problem for our profession here in the U.S. with DOJ investigators focusing on the possible the Foreign Corrupt Practices Act, violations of FCC licensing regulations possibly affecting Fox News, and Congressional hearings scheduled to be held.
Rest assured that ISPLA is well aware of these and other issues. We will continue to address them. We are grateful to the professional associations that have acknowledged our legislative efforts at the federal level these past three years. Recently allocated donations by ALDONYS of $2500 and an additional $2500 from its Security Guard Company Committee, $2000 from PALI, $1000 from NJLPIA and $500 from INTELLENET are truly appreciated. It is through such support, and from our individual members, that we have financed our state and federal legislative tracking systems, maintained Federal Election Commission compliance of our political action committee, professionally executed the effective federal Washington lobbying campaign of our volunteers, and achieved continuing successful results. Thank you!
Bruce Hulme, ISPLA Director of Government Affairs
To further help support our good work — please go to: http://www.ISPLA.org
