By Senator Ron Wyden
Before cellphones were commonplace, law enforcement's ability to track your movements was largely limited to the natural human powers of observation. As long as tracking you around the clock meant following you around the clock, it was generally safe to assume that law enforcement would only dedicate the time, energy, and resources necessary to follow you if they had a good reason. In other words, there was little risk that overreaching law enforcement would abuse its surveillance powers to track law-abiding citizens.
Things have changed.
Thanks to technological advancements, police departments no longer have to pay overtime or divert resources from other projects to find out where someone goes. Tracking suspects or law-abiding individuals is now as easy as accessing their GPS signals or asking a cellphone company for its customers' location records.
While having access to geolocation data is clearly useful for law enforcement agencies, without the resource limitations that used to discourage the government from tracking you without good reason, the limits on when and how geolocation data can be accessed are unclear. A police department, for example, might not have the resources to follow everyone who lives within a city block for a month, but without clear rules for electronic tracking there is nothing to stop it from requesting every resident's cellphone location history.
Obviously, we expect people to see us when we step out onto the street each morning, but we don't expect those people to track all of our movements over the course of days, weeks, months, or even years. A lot can be learned from our location histories, like where we go to church, what doctors we see, what political organizations we belong to, and who we spend our time with.
Earlier this year, the Supreme Court ruled that law enforcement must to get a warrant before secretly tracking an individual with an electronic monitoring device. While it seems likely that the majority of the court would agree that secretly turning someone's cellphone into a tracking device would be similarly intrusive, law enforcement shouldn't have to go all the way to the Supreme Court every time it needs direction on how it can use tracking technology.
Clear guidelines for accessing geolocation data won't just protect the privacy rights of law-abiding Americans--much like warrant requirements for wiretaps--they will make it possible for law enforcement to use geolocation tools with confidence that the evidence they gather will be admissible in court. Clear rules will also reassure cellphone companies that they can comply with government requests without violating their customers' privacy, and the justice system can create criminal penalties for stalkers who use geolocation tools to secretly track their victims.
A lot has changed since 1986, when Congress last set rules for electronic privacy. It's time for Congress to step in and set a modern standard.