Supporters of legislation that would restrict government access to location data got a boost on Tuesday when Sen. Mark Kirk, R-Ill, signed on as the measure’s first Republican Senate cosponsor.
The bill, introduced in June by Sen. Ron Wyden, D-Ore., would require government agencies to obtain a warrant before they can gather both real-time and stored location data about people. Wyden and Kirk say the nation’s laws have not kept up with rapid use of new technologies such as smart phones and iPads that allow citizens to be connected wherever they go – and their locations to be tracked.
When he introduced his bill in June, Wyden noted that there is legal uncertainty surrounding when government can access geolocation data. “This legislation is absolutely necessary because of the technology and the ability of the state to track you wherever you go regardless of any lacking of probable cause," Kirk said during a news conference on Tuesday with Wyden and a coalition of groups supporting the measure.
“We think the time-tested principles of our jurisprudence for 200 years should also apply to the 21st century.”
A broad range of groups have joined in the Digital Due Process Coalition, which has been calling for a much wider update to a 1986 law dealing with government access to electronic communications, the 1986 Electronic Communications Privacy Act. The coalition argues that ECPA is inconsistent and out of date because, for example, it provides differing legal standards for access to stored electronic data and e-mail.
The coalition includes a wide range of stakeholders, including Americans for Tax Reform, the American Civil Liberties Union, the Center for Democracy and Technology, the Competitive Enterprise Institute, Facebook, Google, Microsoft, and many others. The coalition argues that an ECPA update is needed to help foster the growth of cloud computing, noting that some users are reluctant to use cloud computing services based in the United States because of the uncertain legal protections surrounding the data.
Association for Competitive Technology Executive Director Morgan Reed said that one of his member companies recently lost a contract to provide cloud services to an Australian firm, which instead chose a European company because of the privacy protections afforded to data in Europe.
Senate Judiciary Chairman Patrick Leahy, D-Vt., introduced legislation in May that would make some of the changes to ECPA sought by the coalition, such as requiring government agencies to have a warrant to obtain someone’s e-mail or track someone’s cell phone in real time. Leahy's panel has yet to act on the measure.
Wyden said his bill “captures the best features of the respective bills before Congress.” Kirk said he believes the more narrowly targeted measure he is offering with Wyden has a better shot of passing Congress than Leahy’s measure, which has no cosponsors yet.
“My philosophy is think comprehensively, act incrementally,” said Center for Democracy and Technology Vice President for Public Policy Jim Dempsey, adding that he would be happy if any of the changes favored by the coalition were implemented by Congress.
Legislation similar to the Wyden-Kirk bill has been introduced in the House by Reps. Jason Chaffetz, R-Utah, and Peter Welch, D-Vt.