Wyden seeks to clarify when government can track mobile data

Forthcoming proposed restrictions on government's ability to track the location of possible criminal suspects through mobile devices could have the unintended consequence of deterring federal authorities from legally using such location-based data to save lives, say law enforcement technology experts.

Concerns about privacy have prompted lawmakers, civil rights groups and wireless carriers to push for legislation that would clarify outdated laws on the appropriate use of electronic surveillance information in investigations.

Many people do not want the government tracking the locations of their cellphones or car-mounted Global Positioning Systems when they are in transit. And companies that provide cellphone and other mobile services do not want to divulge private customer information to government officials without a search warrant. At the same time, academics note that advances in cellphone technology have blurred the legal lines demarking when it is permissible to track location-based data.

In response to the uncertainty, Sen. Ron Wyden, D-Ore., is circulating draft legislation among colleagues that would specify the need for government officials to obtain warrants before tracking a person using any geo-location information, Wyden aides said this week. Under the proposed bill, geo-location information refers to data about the whereabouts of a cellphone, GPS receiver, or portable computer that is generated when a person operates the device.

The law grants exemptions for certain emergency situations, such as when the life or safety of the user is in danger -- and when there are immediate risks of serious physical injury to other people; conspiratorial activities threatening the national security interest; or behavior characteristic of organized crime.

Some information sharing experts say the exceptions to the rules are so narrow that federal authorities will be afraid to use geo-tracking at all, for fear of losing their jobs.

Federal law enforcement officers might shy away from applying the exemptions to kidnapping incidents, for instance, said Paul Wormeli, executive director emeritus at the Integrated Justice Information Systems Institute. "In which case, what is the consequence? The victim dies," he said. The nonprofit institute helps governments find means of exchanging information to support homeland security, justice and public safety.

Currently, officers use geo-tracking to pinpoint the location of kidnappers so they can locate the individuals who've been abducted.

"If somebody is trying to find a kidnapper and there's been a demand for a ransom, there's a bag of money that kidnappers want to be left at a certain place, [then] law enforcement officials try to put some kind of tracking device with the money to find out where the victim is being held," Wormeli said. "And sometimes you don't have a lot of time to get a warrant to do that."

"Exemptions are really too fuzzy," he added. "How and when do you know that there is that kind of danger that they've proposed for the exemption?"

A better approach, Wormeli said, would be to pass a law that defines the circumstances under which geo-location information gathering is allowed.

"Once somebody has been declared to be a suspect for good reason, you ought to be able to use geo-tracking information to find them," he said.

Justice Department officials declined to comment on Wyden's draft proposal. In September 2010, James A. Baker, the department's associate deputy attorney general, testified before the Senate Judiciary Committee that if legislation "were to unduly restrict the ability of law enforcement to quickly and efficiently determine the general location of a terrorist, kidnapper, child predator, computer hacker, it would have a very real and very human cost."

Wyden aides said the senator expects to have Republican support for the proposed bill by the time he formally introduces it, the timing for which is still being determined.

They added that, so far, none of the law enforcement or intelligence officials to whom they have shown the draft has raised concerns about the way the exemptions are written.

The exclusions should be interpreted to include kidnappings, Jennifer I. Hoelzer, Wyden's deputy chief of staff, told Nextgov on Wednesday. "We agree that law enforcement should have the tools they need to act quickly in those situations," she said. If any authorities do have issues with the exceptions, "we would be happy to revisit the language in order to make sure that they would never hesitate to use these tools in a life-or-death situation."

Wyden acknowledges that if officers have a "good reason" to believe that someone is a suspect, they should have access to the tools needed to track that suspect. That said, legislation must spell out what is meant by "good reason," Hoelzer said.

"Who determines what a good reason is, and how good does your reason need to be before law enforcement is allowed to turn your cellphone into a tracking device? " she questioned. "One person's good reason isn't the same as another. And without some sort of legal clarity, you have the situation that exists today in which law enforcement might use geo-location data to catch a suspect, and that evidence is then thrown out in court because the judge disagrees that there was good reason."