States near new rules on eavesdropping

By Keith Goble, Land Line state legislative editor | 3/28/2014

States throughout the country are taking strides to join Maine and Montana in requiring search warrants for cellphone location data.

A bill on its way to the Utah governor’s desk would restrict the use of “Stingray” technology. The equipment allows law enforcement to track the movements of anyone nearby with a cellphone. The numbers of people’s incoming and outgoing calls and text messages are also captured.

House and Senate lawmakers overwhelmingly backed a bill to require police to get a search warrant before obtaining information from an electronic device.

Sen. Mark Madsen, R-Saratoga Springs, said HB128 is a proactive protection for the privacy of all Utahans.

“The Utah Constitution guarantees the privacy of our effects from unreasonable search and seizure,” Madsen said during Senate floor discussion. “We don’t want our police officers becoming like the NSA and amassing large amounts of information on innocent people.”

Indiana state lawmakers are taking steps to improve privacy protections for people by restricting police collection of cellphone data. Two bills sent to the governor would prohibit police from searching cellphones during routine traffic stops without a search warrant and would prohibit gaining remote access of electronic communication or user data without a warrant. Specifically, it would require obtaining a specific search warrant showing belief that a crime occurred. Limits would also be put in place on the use of tracking devices, surveillance cameras and drones.

Similar efforts to mandate that law enforcement obtain search warrants before capturing cellphone data of innocent drivers are also under consideration in Illinois, Missouri and Rhode Island.

In Virginia, a bill awaiting action from the governor would go one step further to limit electronic eavesdropping. Telephone companies would be prohibited from providing phone records or metadata to the National Security Agency or other federal agencies without a search warrant or the person’s permission.

Across the country in California, a state lawmaker is pushing a bill that is intended to thwart wayward federal surveillance programs.

Sen. Ted Lieu, D-Torrance, introduced a bill to prohibit state agencies, officials and corporations that provide services to the state from supporting or assisting the federal government to collect electronic data or metadata on citizens without a warrant.

Lieu said that he understands that the world is a dangerous place.

“That is why our founders enacted the Bill of Rights,” Lieu stated. “They understood the grave dangers of an out-of-control federal government.”

On the opposite coast, a pair of bills in Vermont would prohibit the state from helping the feds in the collection of electronic data or metadata without a search warrant and would require a search warrant before a company can provide electronic records of customers to police or other government officials.

Minnesota lawmakers are also addressing concerns about warrantless data collection.

Law enforcement and state agencies would be required to secure a search warrant in order to tap into cellphone tracking data for someone who is committing, did commit, or is about to commit a felony-level offense. State law already requires a search warrant for wiretaps and access to electronic communications.

“What we’re talking about is whether government should have the ability to figure out where you’ve been, not just right now, but dating back many, many months,” Rep. Joe Atkins, DFL-Inver Grove Heights, testified.

Notice must also be given to the phone’s owner whose location data was obtained within three days. A 10-day extension could be given in certain circumstances.

Advocates for protecting the public’s privacy say that the technology is very useful; however, when government uses it in respect to citizens, it is critical to make sure the government follows certain parameters.

However, some experts question whether the government’s data collection can be curbed by state actions. They cite the supremacy clause, which establishes the U.S. Constitution, federal statutes and U.S. treaties as “the supreme law of the land.”

The U.S. Supreme Court could soon decide on whether the use of cellphone data is protected by the U.S. Constitution.

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