Maine, Montana Restrict Warrantless Cellphone Tracking, Inspire Model Draft

"We decided privacy was going to be our primary positive focus,” American Civil Liberties Union Maine Legal Director Zachary Heiden said of this year’s legislative session in Maine. The Maine law applies to state and local agencies, and unless a court decides otherwise, they must notify “the owner or user that location information was obtained by the government entity from that owner’s or user’s electronic device within three days of obtaining the location information.” The law attracted support from the “furthest reaches of the right and left of the political spectrum and everywhere in between,” he said. “There was no party line at all in this.” ACLU took a “lead role” in pushing the legislation, working with the bill sponsor, coordinating witnesses and engaging in one-on-one lobbying, he said.

Law enforcement provided the “primary resistance to this bill -- and really the only resistance,” Heiden noted, saying it was not surprising because law enforcement is “not used to dealing” with warrants of this type. The governor acknowledged these concerns in his July 8 veto message: “This bill simply goes too far,” LePage said. “To obtain location data on a cell phone currently, police obtain a court order. This allows them to access historic -- not real-time -- location data. Many crimes we all know about would not have been solved, or would have taken significantly more man-hours, if this law had been in place.” Warrants should be required for accessing voicemail or text message content but this bill creates requirements that are “too burdensome in a time of rising crime in our state,” he added.

The American Legislative Exchange Council is crafting a draft for what may become similar model legislation. “Think about it in today’s world,” full of “new challenges” involving data, said South Carolina Rep. Garry Smith (R), sponsor of the ALEC draft to be discussed at the council’s August meeting in Chicago. He compared the search of data to entering a person’s home and office drawers, and said the legal interpretation of what is permissible “was all over the place,” prompting his own interest. He called the model draft “very reasonable” and said he has tried to build in provisions to protect consumer data as well as allowing for relevant exceptions, such as national security threats. One big challenge in discussions surrounding the draft is how not to hamper law enforcement, he said.

"You can’t look at it just from an owner’s standpoint of devices but an owner’s standpoint of the data,” Smith said, describing an effort to “tag this to ownership” beyond the mobile devices. Smartphones today include emails, calendars, browsing history and more, he said. Recent news stories involving the National Security Agency and revelations from former contractor Edward Snowden “brought this to the forefront for a lot of Americans,” Smith added. “It became a huge issue.”

"Law enforcement will always say that,” said TechFreedom President Berin Szoka, a member of the ALEC advisory board, of the public safety concerns raised in Maine. “They don’t want anything to make their job slightly more difficult.” He called those concerns “a red herring.” The think tank has worked with other stakeholders on the draft, which is broader than the Maine law. TechFreedom Fellow Peter Van Valkenburgh said the draft also focuses on biometric data and other elements beyond GPS and also focuses more on the reporting of data, to ensure it’s standardized and accessible.

To become an ALEC model bill, the draft must first pass through a subcommittee meeting, the full Communications and Technology Task Force and then the board, Task Force Director John Stephenson said. The seven-page draft, currently titled the Electronic Data Privacy Protection Act, has been distributed to members as a reference guide, he added. It had input from the Center for Democracy and Technology, the ACLU and the Electronic Frontier Foundation. “To my knowledge, this is our first foray into this particular issue,” Stephenson said. But ALEC has a history of addressing privacy issues starting in the late 1990s, he said, referring to the organization’s market-focused statement of principles for online privacy in 2003. ALEC has focused on the relevant constitutional protections and has asserted that the Fourth Amendment does apply in the communications sphere, he said. The federal government has not acted, making such state legislation “trailblazing,” he added, saying it’s “monumental for states in taking the lead on this.”

"Content and location -- those should not be hard cases,” Szoka said. “They are clearly covered by the Fourth Amendment. … This is an area where there really is something to be done.” He compared this effort with Electronic Communications Privacy Act reform. TechFreedom got pulled into the draft discussions about two weeks ago, Van Valkenburgh said. “The goal would really be to have model state legislation that would be inspiration to federal legislation,” he said.

Such a model for state legislation around the country would be wonderful, ACLU’s Heiden said. People shouldn’t be “feeling coerced because they're feeling watched,” he said, describing the achievements of the Maine law and what it was trying to avoid regarding people’s freedoms of mobility. “All these freedoms are inhibited if they feel they're under surveillance.”