States push forward new rules on cellphone spying

By Keith Goble, Land Line state legislative editor | Friday, May 23, 2014

State lawmakers throughout the country are pushing for changes that would require search warrants to access cellphone data.

Maine and Montana already impose rules on cellphone eavesdropping. Indiana and Utah have acted in recent weeks to approve their own limits on warrantless data collection.

In Minnesota, Gov. Mark Dayton put his signature on a bill to restrict the use of “Stingray” and “Kingfish” technology. The equipment mimics cellphone towers and 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.

Starting Oct. 1, law enforcement and state agencies will be required to secure a tracking 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.

Tracking warrants will only be issued to government agencies once they show probable cause.

Rep. Joe Atkins, DFL-Inver Grove Heights, said the changes are needed to make sure that the location data of innocent people is not subject to unreasonable or unchecked searches by government.

“Times have changed and we use our mobile devices for location services all the time,” Atkins said in a released statement. “This bill is a step in ensuring our laws catch up with the times.”

Tracking warrants would be good for 60 days, but could be extended by a court. Notice must also be given to the phone’s owner whose location data was obtained within 90 days after the court order is unsealed.

A new Tennessee law also prohibits gaining remote access of electronic communication or user data without a warrant. A specific search warrant would be required for circumstances that include “imminent danger” to the life of the owner or to the public.

The new rule is slated to take effect July 1.

The Missouri General Assembly voted to put the issue of warrantless cellphone searches on the state’s fall ballot.

Senate Joint Resolution 27 is a proposed constitutional amendment. Voters will decide whether to expand constitutional safeguards against unreasonable searches and seizures to include “electronic communications and data.”

In neighboring Illinois, a bill on its way to the governor’s desk would limit the circumstances that law enforcement can use information collected from cellphones.
SB2808 would allow law enforcement to capture cellphone data only after obtaining a court order based on probable cause of a crime.

A similar bill is nearing passage at the New Hampshire statehouse. House and Senate lawmakers have approved slightly different versions of the bill – HB1533. They must reach agreement on wording before it can head to the governor’s desk.

Across the country in California, a bill halfway through the statehouse is intended to thwart wayward federal surveillance programs.

The California Senate voted 29-1 to send a bill to the Assembly that would 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.

Sen. Ted Lieu, D-Torrance, said changes are needed to prevent taxpayers’ own money from being used to violate their rights.

“The National Security Agency’s massive and indiscriminate collecting of phone data on all Americans, including more than 38 million Californians, is a threat to our liberty and freedom,” Lieu stated.

Despite the activities at statehouses, 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.

Meanwhile, the U.S. House voted on Thursday, May 22, to approve a bill to end the NSA’s bulk collection of U.S. phone records. The NSA would be able to get certain records from phone companies only after obtaining court approval.

The measure awaits further consideration in the U.S. Senate.

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