[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]



 
   ECPA REFORM AND THE REVOLUTION IN LOCATION BASED TECHNOLOGIES AND 
                                SERVICES

=======================================================================



                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON THE CONSTITUTION, 
                   CIVIL RIGHTS, AND CIVIL LIBERTIES

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                             JUNE 24, 2010

                               __________

                           Serial No. 111-109

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov




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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
MAXINE WATERS, California            DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee               STEVE KING, Iowa
HENRY C. ``HANK'' JOHNSON, Jr.,      TRENT FRANKS, Arizona
  Georgia                            LOUIE GOHMERT, Texas
PEDRO PIERLUISI, Puerto Rico         JIM JORDAN, Ohio
MIKE QUIGLEY, Illinois               TED POE, Texas
JUDY CHU, California                 JASON CHAFFETZ, Utah
TED DEUTCH, Florida                  TOM ROONEY, Florida
LUIS V. GUTIERREZ, Illinois          GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DANIEL MAFFEI, New York
JARED POLIS, Colorado

       Perry Apelbaum, Majority Staff Director and Chief Counsel
      Sean McLaughlin, Minority Chief of Staff and General Counsel
                                 ------                                

  Subcommittee on the Constitution, Civil Rights, and Civil Liberties

                   JERROLD NADLER, New York, Chairman

MELVIN L. WATT, North Carolina       F. JAMES SENSENBRENNER, Jr., 
ROBERT C. ``BOBBY'' SCOTT, Virginia  Wisconsin
WILLIAM D. DELAHUNT, Massachusetts   TOM ROONEY, Florida
HENRY C. ``HANK'' JOHNSON, Jr.,      STEVE KING, Iowa
  Georgia                            TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
JOHN CONYERS, Jr., Michigan          JIM JORDAN, Ohio
STEVE COHEN, Tennessee
SHEILA JACKSON LEE, Texas
JUDY CHU, California

                     David Lachmann, Chief of Staff

                    Paul B. Taylor, Minority Counsel



                            C O N T E N T S

                              ----------                              

                             JUNE 24, 2010

                                                                   Page

                           OPENING STATEMENTS

The Honorable F. James Sensenbrenner, Jr., a Representative in 
  Congress from the State of Wisconsin, and Ranking Member, 
  Subcommittee on the Constitution, Civil Rights, and Civil 
  Liberties......................................................     1
The Honorable Henry C. ``Hank'' Johnson, Jr., a Representative in 
  Congress from the State of Georgia, and Member, Subcommittee on 
  the Constitution, Civil Rights, and Civil Liberties............     3
The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Chairman, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     5
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, Chairman, Committee on the 
  Judiciary, and Member, Subcommittee on the Constitution, Civil 
  Rights, and Civil Liberties....................................     6

                               WITNESSES

Mr. Matt Blaze, Associate Professor, University of Pennsylvania
  Oral Testimony.................................................    12
  Prepared Statement.............................................    17
Mr. Michael Amarosa, Senior Vice President for Public Affairs, 
  TruePosition
  Oral Testimony.................................................    31
  Prepared Statement.............................................    33
Mr. Richard Littlehale, Assistant Special Agent in Charge, 
  Technical Services Unit, Tennessee Bureau of Investigation
  Oral Testimony.................................................    56
  Prepared Statement.............................................    59
Mr. Marc J. Zwillinger, Zwillinger Genetski, LLP
  Oral Testimony.................................................    65
  Prepared Statement.............................................    68
The Honorable Stephen Wm. Smith, United States Magistrate Judge, 
  Southern District of Texas
  Oral Testimony.................................................    76
  Prepared Statement.............................................    78

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, 
  Chairman, Committee on the Judiciary, and Member, Subcommittee 
  on the Constitution, Civil Rights, and Civil Liberties.........     7

                                APPENDIX

Material Submitted for the Hearing Record........................   105


   ECPA REFORM AND THE REVOLUTION IN LOCATION BASED TECHNOLOGIES AND 
                                SERVICES

                              ----------                              


                        THURSDAY, JUNE 24, 2010

              House of Representatives,    
              Subcommittee on the Constitution,    
                 Civil Rights, and Civil Liberties,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 10:11 a.m., in 
room 2237, Rayburn House Office Building, the Honorable John 
Conyers, Jr., (Chairman of the Committee on the Judiciary) 
presiding.
    Present: Representatives Nadler, Conyers, Johnson, Chu, and 
Sensenbrenner.
    Staff present: (Majority) David Lachmann, Subcommittee 
Chief of Staff; Stephanie Pell, Counsel; and Art Baker, 
Minority Counsel.
    Mr. Conyers. The Subcommittee will come to order. 
Obviously, I am not the Chairman of this Subcommittee, but I 
think through common agreement with the Members that are here, 
we will not detain this distinguished group of panelists any 
longer.
    This is a very important continuation of discussions that 
the Constitution Subcommittee has been engaged in, and it 
essentially revolves around cell phone technologies and how 
they have changed, but how the law hasn't changed. And we are 
trying to see if we can come together to sort out some of the 
differences in views that are coming out of the court. And, of 
course, I think very few of us can anticipate the technologies 
that are evolving so rapidly.
    I would like to invite the former Chairman of the Judiciary 
Committee, Jim Sensenbrenner, the Ranking Member of this 
Committee, to begin our discussions.
    Mr. Sensenbrenner. Thank you very much, Mr. Chairman. And 
as you know, I have to give a statement on the floor a little 
bit after 10:30, so I appreciate your giving Republicans the 
first word this time. And, you know, this is somewhat 
unprecedented, and again, I appreciate your indulgence.
    Today's hearing is the second in a series of hearings to 
examine the need to update the Electronic Communications 
Privacy Act of 1986, or ECPA for short. This hearing addresses 
cell phone site information and other location based 
technologies.
    A collection of civil liberty organizations and telecom 
companies have proposed a series of principles for ECPA reform, 
including law enforcement access to cell phone and cell site 
location information should require a warrant based on probable 
cause for both prospective and retrospective location data.
    Second only to the advent of personal computing, this is a 
technical revolution with mobile communication devices. 
Industry trade groups estimate that at the end of 2009 there 
were over 285 million wireless subscriber connections and over 
2 trillion annualized minutes of cell phone use. Almost 23 
percent of U.S. households today are wireless only.
    As I have said before, at the intersection of all the new 
technological developments and capabilities are the privacy 
rights of the public, the economic interest in expanding 
commerce, the public policy of encouraging the development of 
even better technologies, and the legitimate investigative 
needs of law enforcement professionals.
    As cell phones have created greater efficiency for 
consumers, they also have created greater efficiency for 
criminals. Fortunately, they also provide new ways for law 
enforcement to investigate crimes.
    There seems to be confusion, or at least a difference of 
opinion, as to exactly what location information is acquired by 
which technology. Some technologies may only identify the 
general area in which the target is located, and others can be 
more precise. It is important for this Committee and Congress 
to clarify the true nature of these technologies before we 
embark on reforms to ECPA.
    There also seems to be confusion in the courts, or a 
difference of opinion, on what portions of ECPA apply to these 
technologies and under what standard cell location information 
should be aquired. Considering that ECPA was enacted in 1986, 
well before the proliferation of cell phones and other 
technologies, I think it is fair to say that the statute does 
not speak specifically to these issues.
    At a fundamental level, traditional pen register and trap 
and trace data are the telephone numbers dialed from--or the 
telephone numbers dialed to from that particular telephone. In 
Smith versus Maryland, 1979, the Supreme Court ruled that an 
individual has no reasonable expectation of privacy in the 
information gathered by these pen and trap devices.
    As the Internet and cell phone technology advanced, 
Congress expanded the pen/trap statutes to include certain non-
contact information from e-mails and cell phone calls. In 
enacting the Communications Assistance to Law Enforcement Act 
of 1994, or CALEA, Congress specifically instructed that a 
person's location information cannot be acquired solely 
pursuant to a pen register.
    The Stored Communications Act, an act that is a part of 
ECPA, governs law enforcement requests for various types of 
stored information. Under an intermediate standard of specific 
and articulable fact, courts have widely held that the 
government can use the second communications act--Stored 
Communications Act; I am sorry--to acquire subscriber records, 
including retrospective cell location data.
    However, the Third Circuit Court of Appeals is currently 
considering the application of the statute to retrospective 
cell site location information. The United States has appealed 
the denial of an order for historical information, even though 
the government complied with the provisions of the statute, 
then based their application on specific and articulable fact 
showing that the information is relevant to an ongoing criminal 
investigation.
    From co-mingling of the pen and trace statutes and the 
Stored Communications Act has evolved a hybrid order for 
requests of certain prospective cell site information. Some 
courts have accepted this theory and some have not, opting 
instead to require the government to obtain a warrant to enter 
Rule 41 of the Federal Rules of Criminal Procedure.
    While there may very well be a need to clear up the 
confusion in the area of obtaining prospective cell site 
location information, it does not necessarily follow that the 
appropriate remedy to any ambiguity would be a Rule 41 search 
warrant based upon probable cause.
    I thank the witnesses today, and I look forward to their 
testimony.
    Let me say this is a very complicated area. It is not one 
that I think reeks of partisan divisions. I think we all know 
that a 24-year-old original law and a 16-year-old second law is 
way out of date compared to where the technology is at. And in 
order to clear this up for everybody, whether it is the courts, 
the law enforcement, the cell phone providers and everybody 
else, Congress needs to be very professional in doing what 
needs to be done to bring this up to date and know that haste 
may make waste. Thank you.
    Mr. Conyers. Thanks, Jim Sensenbrenner, for your opening 
comments.
    And I now turn to Hank Johnson, himself a former magistrate 
in the Atlanta court system, and presently the Chairman of the 
Courts and Competition Subcommittee in Judiciary.
    You are welcome to begin whenever you want, Chairman 
Johnson.
    Mr. Johnson. Thank you. Thank you, Mr. Chairman, for 
holding a very important hearing.
    Looks like my mic is not working, so I will just speak 
loudly.
    This important hearing will give Members the opportunity to 
examine the Electronic Communications Privacy Act with respect 
to location based technologies such as cell phones and smart 
phones. The Electronic Communications Privacy Act provides the 
standards for law enforcement access to the electronic and 
wireless technology we use.
    Specifically, this hearing will give Members the 
opportunity to hear from witnesses about reform under the Act 
and issues relating to historical and real-time location data. 
This hearing is timely, as mobile communication devices have 
evolved from being little more than a convenience for the 
wealthy to a basic necessity for most Americans. Cell phones 
have transformed the way we communicate and work with each 
other on a daily basis. In today's society it is more common 
for one to have a cell phone rather than a traditional landline 
phone.
    According to 2009 Wireless Association report, there were 
approximately 277 million cell phone service subscribers in the 
United States last year. That is about 90 percent of the 
overall population. Whenever the subscribers have their cell 
phones on, the phones can automatically scan for cell towers 
and register location information with the network. This has 
led to substantial privacy concerns, as cell site data may be 
collected without a person's knowledge.
    Further, some data provides the ability to track all of a 
person's movements on a relatively precise and continuous 
basis. When it comes to law enforcement and national security, 
the value of a person's location at a particular moment in time 
cannot be overstated. Criminal investigators can use this 
information to find a child that has been kidnapped or to 
apprehend a dangerous criminal.
    While the benefits of technology to aid law enforcement are 
great, it is important to remember that Americans have privacy 
rights. The founding fathers recognized that citizens need 
privacy for their persons, houses, papers and effects. While 
technology has been advancing at the speed of light, that basic 
principle the framers had in mind when they drafted the 
Constitution has not changed. Therefore, it is important to 
have a balance between user privacy expectations and law 
enforcement needs.
    I want to deviate from my prepared remarks to let you know 
about a recent experience that I had. This week while I was 
here in Washington, I got a call from my scheduler over here at 
the Capitol, who told me that she had heard from my dealership 
that my car had registered--sent back a message that it 
needed--it was time for an oil change. And so I had the OnStar 
technology in the car, but I did not know that whatever data 
recorder is in the car would notify the dealership that the car 
itself needed some topping off of the oil.
    And that is a sobering to me to know that someone sitting 
up at a computer terminal can see where I am, where my car is--
at least where my car is--and what kind of condition it is in. 
They probably know how fast I drive it. And can that 
information be shared on a commercial basis without my 
knowledge? Those are some of the issues that we will be facing 
in the future.
    The ability to monitor communications has grown enormously. 
As technology continues to expand, Congress should adjust laws 
accordingly to keep up with modern technology. And by the way, 
when I get home, the first thing I am going to do is look at 
that OnStar contract and see exactly what it provides for and 
what it does not provide for.
    It has come to Congress' attention that the standards 
governing law enforcement access to historical and real-time 
cell site data regarding location information may be the most 
confusing area of the Act's application to wireless technology. 
With more than 500 Federal magistrate judges serving in 
district courts around the country, there is no room for 
confusion when it comes to the Electronic Communications 
Privacy Act. If courts are issuing conflicting decisions with 
different standards regarding law enforcement access to this 
wireless location data under the Act, Congress should step in 
and act accordingly.
    I am anxious to hear from the witnesses today, as I have a 
number of questions. Should Congress step in and reform the 
Electronic Communications Privacy Act? If so, how should the 
Act be reformed to strike the proper balance between consumer 
privacy and law enforcement? What should law enforcement 
officers have to provide cell phone providers in order to 
obtain access to historical and real-time data? Would it be 
premature for Congress to legislate, as there are unresolved 
Fourth Amendment issues?
    I hope our witnesses can shed light on these questions, and 
I look forward to hearing from the witnesses. And I yield back 
the balance of my time--and would request a working microphone.
    Mr. Nadler. [Presiding.] Thank you. You might try the one 
on the other side.
    Let me just say before I read my opening statement that Mr. 
Johnson's opening statement raises some interesting 
possibilities. I didn't know that the car told the dealership 
when it was thirsty. I am pretty sure pretty soon it may be 
telling the insurance company that you are not replacing the 
brake fluid often enough or whatever, and this raises real 
questions about your car communicating with other entities 
without your even knowing about it and perhaps influencing your 
legal liabilities or rights.
    Today's hearing is the second in which this Subcommittee 
will consider the statutory framework Congress established in 
the 1986 Electronic Communications Privacy Act, ECPA, in light 
of the enormous technological advances in electronic 
communications and 24 years since ECPA's passage.
    While the first hearing was a general introduction to 
several ECPA reform issues that should be examined, this 
hearing will focus specifically on advances in cellular 
location based technologies and related services and how such 
technologies, while enriching our lives, can provide more 
precise and, to many of us, sensitive information about where 
we may be located at any given time.
    So today we continue our examination of whether ECPA still 
strikes the right balance between the interests and needs of 
law enforcement and the interests of the American people in 
privacy. If we conclude from this examination that the balance 
of interests between law enforcement and personal privacy must 
be struck more finely, we will take the necessary legislative 
action. If we embark on that course, we must bear in mind the 
exigencies and complexities of the security environment in 
which law enforcement must act.
    Moreover, if we act, we must do so with the full knowledge 
that any legislative changes to ECPA must nevertheless sustain 
the public's confidence in the security of their 
communications, or it can harm both the robust market for cell 
phones and the rapid innovation that is fundamental to that 
market's health. Because ECPA inevitably involves the 
interaction of all these important and complex considerations, 
we are taking the time through a series of multiple hearings to 
educate ourselves carefully and fully before beginning to 
engage in any legislative action.
    This Subcommittee's exploration of where the appropriate 
balance may lie with respect to location information must 
surely include a lesson in location based technologies and 
services. After all, when ECPA was passed back in 1986, 
approximately 8 years before the GPS system was fully activated 
for public use, the only options one had for locating oneself 
on the road was still a road atlas or gas station. Now, as we 
will see, the GPS is supplemented by an array of different 
location technologies and the myriad applications they support.
    We are honored to have certain witnesses here today, who 
are experts in these technologies. They can give us the 
necessary background to embark upon an understanding of how 
they work, what types of information and records they can 
generate and store, and how they can be of assistance to law 
enforcement in appropriate circumstances.
    This initial educational effort is in my view not only 
warranted, but essential before we undertake any effort at 
amending or otherwise reforming ECPA. After we hear the terrain 
described, we will move on to other questions today--namely, 
how is ECPA currently being applied to these location based 
technologies and services by the courts?
    Without stealing his thunder, we have one very 
distinguished witness here today, who will tell us in the most 
respectful way, I am sure, that Congress needs to give better 
guidance to the courts with respect to the standards governing 
law enforcement access to certain types of location based 
information. He is a magistrate judge working, as we say, in 
the trenches, who has grappled with how to apply ECPA to law 
enforcement requests for various types of location based 
information.
    In many respects, at least for the moment, the testimony 
and discussions today may raise more questions than they 
answer. Since we are to hear about technologies both existing 
and those that are foreseeable that are revolutionary, 
certainly, by 1986 standards, I want to acknowledge that our 
task will be a challenge to find the appropriate balance 
between privacy and law enforcement interests, to protect the 
public while preserving consumer privacy and confidence, to 
support rapid technological innovation yet discern standards 
for law enforcement access that will not become outdated with 
each new generation of technology every 2 or 4 years.
    As I indicated, this journey will at least initially take 
the form of a dialogue, and this Subcommittee needs the 
assistance and input of all stakeholders--law enforcement, 
private industry and civil liberties groups alike--in order to 
have any hope of getting this right. We look forward to 
speaking with you formally or informally and seeing you at 
future hearings.
    The Chair will now recognize the distinguished Chairman of 
the full Committee for an opening statement.
    Mr. Conyers. Thank you, Chairman Nadler. I am going to put 
my statement in the record, and I will make just a couple 
observations.
    [The prepared statement of Mr. Conyers follows:]
    
    
    
    
    
    
    
    
                               __________
    Mr. Conyers. The first is that what our distinguished 
judicial witness did is extremely important; in meeting this 
Committee under your guidance to begin this evaluation of the 
relationship between the incredible outpouring of technology 
and the fact that our laws sometimes are not keeping up with 
it.
    In addition, we have the problem of not being able to 
anticipate what new technology is coming out in the first 
place, so it is a sort of built-in problem. Do we try to 
process the congressional role in the normal way, or do we try 
to anticipate what is going to happen?
    But I think the basic thing that Judge Smith has pointed 
out and that reinforces the importance of this hearing is that 
the courts are in disarray themselves, and understandably so. 
We have been looking at the 1986 law, and essentially it was 
created to govern law enforcement access to electronic and wire 
communications. It created different standards, some that are 
very high--what is a super warrant, anyway, for wiretapping--
and some that are very low. What is a subpoena for telephone 
toll records?
    And so this law, written before the technology existed, has 
understandable problems. But it is to the credit of this 
Committee that we have embarked on this discussion. This is the 
second of a series, and it sure won't be the last.
    And it is in this spirit that I commend all five of you 
distinguished witnesses, experts, in coming here to help us 
unravel this problem today. I thank you for your presence.
    Mr. Nadler. And I thank you.
    Without objection, all Members will have 5 legislative days 
to submit opening statements for inclusion in the record. We 
will now turn to our panel of witnesses.
    Our first witness is Matt Blaze, who is an associate 
professor of computer information science at the University of 
Pennsylvania, who serves as director of the distributed 
computing laboratory and conducts research on computer 
security, cryptography, network communications and surveillance 
technology. Much of his research focuses on methods to 
strengthen critical infrastructure against criminals and other 
unauthorized eavesdroppers and to help ensure that authorized 
surveillance systems work as intended in the rapidly changing 
environment in which they must be reliable.
    Prior to joining the faculty at Penn, he worked for 12 
years on the research staff at AT&T Labs in New Jersey. 
Professor Blaze earned his Ph.D. in computer science from 
Princeton, a master's degree from Columbia, and his 
undergraduate degree from the City University of New York.
    Our second witness, Michael Amarosa, is senior vice 
president of public affairs at TruePosition, a location based 
technology company. Prior to joining TruePosition, Mr. Amarosa 
spent 24 years with the New York City Police Department in 
various managerial capacities, including 3 years as deputy 
commissioner for technological development, where he was 
directly responsible for the design and implementation of the 
city's E-911 system.
    Mr. Amarosa is also chairman of the E-911 Institute, an 
organization that provides administrative and policy support to 
the congressional E-911 Caucus. Mr. Amarosa received his J.D. 
cum laude from the New York Law School, a master's degree in 
public administration from NYU, and his B.A. from St. Peter's 
College.
    Mark Zwillinger--I skipped somebody; oh, I am sorry--
Richard Littlehale is an assistant special agent in charge of 
the Tennessee Bureau of Investigation Technical Services Unit. 
In this capacity he coordinates and supervises the use of 
advanced and covert technologies in support of law enforcement 
operations, and he is a Federal task force officer with an FBI 
joint cyber crime task force. Mr. Littlehale is a graduate of 
Bowdoin College and received his J.D. from Vanderbilt Law 
School.
    Mark Zwillinger is a founding partner of Zwillinger 
Genetski LLP, where for 10 years his practice has focused on 
issues related to the Electronic Communications Privacy Act, 
the Wiretapping Communications Act, surveillance law and 
privacy. Previously, Mr. Zwillinger ran the privacy and 
security practice groups at Sonnenschein Nath & Rosenthal and 
at Kirkland & Ellis. Prior to that he served 3 years as a trial 
attorney in the computer crime and intellectual property 
section of the criminal division of the Department of Justice. 
Mr. Zwillinger earned his J.D. magna cum laude from Harvard Law 
School.
    And finally, Judge Stephen Smith has served for the last 6 
years as United States magistrate judge for the Southern 
District of Texas, Houston Division. Before his appointment to 
the bench, he practiced law for 25 years in the Houston office 
of Fulbright and Jaworski LLP. Judge Smith earned his B.A. cum 
laude from Vanderbilt University and graduated from the 
University of Virginia Law School.
    I think we have two witnesses from Vanderbilt at some 
point. I am pleased to welcome all of you. Your written 
statements in their entirety will be made part of the record. I 
would ask that you summarize your testimony, or try to, in 5 
minutes or less, which will be liberally construed. To help you 
to stay within that----
    We don't have the timing. Do we have the timing thing? Yes.
    To help you stay within that time limit, there is a timing 
light at your table. When 1 minute remains, the light will 
switch from green to yellow and then red when the 5 minutes are 
up.
    Without objection, the Chair is authorized to call a recess 
of the hearing at any point, which we will endeavor to do only 
in case there are votes on the floor.
    Before you begin, it is customary for the Committee to 
swear in its witnesses, if you would please all stand and raise 
your right hand to take the oath.
    Let the record reflect that the witnesses answered in the 
affirmative.
    You may be seated. We will now hear from our first witness. 
Professor Blaze is recognized.

  TESTIMONY OF MATT BLAZE, ASSOCIATE PROFESSOR, UNIVERSITY OF 
                          PENNSYLVANIA

    Mr. Blaze. Thank you, Mr. Chairman, for the opportunity to 
talk to the Committee today about the technology of wireless 
communications and tracking and wireless communications 
systems. It is a great honor to be here, and I am humbled by 
the task of trying to distill what is in fact not just a very 
complex legal area, but a very complex and often confusing 
technological area.
    Wireless technology, as we all know at the risk of gross 
understatement, has since 1986 exploded in popularity and 
undergone numerous generational changes that have completely 
changed the landscape not only of how we communicate and 
interact with each other, but of how the underlying technology 
works and how we think about it.
    So what I would like to discuss first of all is the way 
cellular telephone networks work and are structured. The 
cellular telephone, unlike the traditional wire line telephones 
that we grew up with, uses the radio to communicate with the 
wired telephone network instead of a cable connected to your 
home or office.
    This is essentially by itself a revolution in the way we 
think about the telephone, because it is no longer fixed to a 
particular location. We carry our phones with us now. Rather 
than thinking about the telephone located in a place that we 
call, we think about the person we want to call, because we 
expect them to have their telephone with them.
    We can move around with these devices usually anywhere in 
the country, or almost everywhere in the country. And we expect 
our telephones to work, and largely they do. I was surprised to 
discover my telephone worked in the D.C. Metro on my way here 
this morning.
    Cellular providers accomplish this by deploying a network 
of relatively closely spaced local radio base stations, those 
ubiquitous cellular telephone towers that we see in 
neighborhoods and alongside highways that are each responsible 
for completing telephone calls made by cell phones in their 
immediate area.
    Cell phones, as they move and as they are turned on, 
discover the base station with the strongest radio signal and 
perform a registration process identifying themselves, 
establishing that the user has a valid cell phone service, and 
identifying the local base station that is best equipped to 
process the call by virtue of the strength of its radio signal.
    Now, it is very important that coverage be contiguous, so 
essentially what cellular providers do is divide their coverage 
area, essentially the United States for most of the cellular 
providers that are there today, into a mosaic of local base 
station service areas that are called, in the terminology of 
the industry, sectors. So the base station with which a phone 
communicates covers an area called the local sector that it has 
good radio coverage for.
    Now, when you move from sector to sector or when you place 
a call, cellular phone companies keep track of that so they 
know where incoming calls should be routed, which base station 
they should send the call to to have your phone ring. When you 
place the call, they know that you already have established 
that you have a valid account and have paid your bill and so 
forth. So cellular----
    Mr. Nadler. On a technical point, when you move around with 
your phone in your pocket, they know where it is only if you 
make the phone call, or just because it is there emitting a 
signal?
    Mr. Blaze. No, any time the telephone is on, the phone 
periodically will check the signal strength of the local base 
station, send it a message saying essentially, ``Can you hear 
me? I am in your sector. Please register me.'' And the phones 
periodically do this. They do this when they are turned on. 
They do this as they move from place to place.
    And in order for you to be able to receive incoming calls, 
it is very important that the phone company, this wireless 
company, keep track of which sector you are in, because that is 
how the switching equipment knows which base station to send an 
incoming call to cause your telephone to ring. So any time the 
phone is on, any time it moves around, whether it is actually 
making or receiving a call, the wireless provider is tracking 
the current base station with which a phone is associated. And 
that has been a central part of how the network works.
    Now, how do we track phones? What kind of location tracking 
technology is available in this world of everyone carrying 
around a wireless handset? Well, the most prominent location 
tracking technology, the one that is most visible to the end 
user, is called GPS, which makes use of the global position 
system satellites originally put up by the U.S. military that 
allow a device with a satellite receiver and a view of the open 
sky to calculate very precisely its own location.
    Mr. Nadler. Excuse me. And your cell phone in your pocket 
has that capacity to talk to the satellite?
    Mr. Blaze. Well, many cell phones do, but not all do. And 
in fact, although GPS technology is the most prominent location 
tracking technology for the end-user, it is actually not the 
most important technology for the surveillance and tracking 
point of view.
    GPS has high accuracy. The latest generation of equipment 
can precisely locate something to within about 10 meters of 
accuracy, less under some circumstances. And it can be done by 
a device by itself with no other infrastructure than the 
ability to receive the satellite signals.
    So we have GPS mapping systems in cars and so on. And the 
latest generation of telephones often include a separate GPS 
receiver and some mapping software and other software that can 
emulate the functions of, for example, a car GPS receiver.
    So from the user's perspective, we often think of GPS as 
being the equivalent of location tracking. And we might think 
that if we don't have a GPS receiver on our telephones, that no 
one might know where we are. But in fact that is not true. GPS 
is actually not used by the cellular telephone network for 
tracking at all. And law enforcement use of GPS for 
surreptitious surveillance with cell phones is less important 
than other kinds of telephone-based tracking when we are 
talking in the context of wireless communication.
    Now, the most basic kind of wireless tracking with a cell 
phone is to simply keep track of which sector the telephone is 
located in at any given moment. As phones move from place to 
place, as I mentioned, they register their location with the 
local base station.
    The wireless company keeps track of that. It has to, 
because if it doesn't, it won't know how to get calls to you. 
And so if we keep track of which sector a phone has registered 
with, we effectively know where it is within the service area 
of that sector.
    Now, a natural question to ask is, ``Well, how accurate 
does this allow us to locate the phone? How big a radius might 
the phone be in when it is registered in a particular sector, 
as phones do continuously when they are on?'' And the answer is 
today is very different from what it was 25 years ago.
    In the original cell systems, which were analog, not widely 
used, very expensive, and there weren't that many cellular 
customers, the incentive for the wireless service provider was 
to try to get by with as few base stations as possible that 
would adequately cover the service area in a way that would 
satisfy their customers. There weren't very many customers of 
cell phones in the earliest systems, and so really the limiting 
factor of how far apart base stations could be was the distance 
that the radio signals would travel.
    But that meant that a sector might be several miles in 
diameter, up to 10 or sometimes even 15 miles in diameter in 
the early cell phone systems in areas with wide-open terrain 
and relatively few users. So knowing that sector location in 
early cell phone systems only allowed you to locate, you know, 
a city or a neighborhood in which a phone was located.
    But cell phone systems have become so explosively popular, 
compared with the way we thought about them 25 years ago. There 
have been other factors that have resulted in the sector size 
steadily shrinking.
    There are a limited number of simultaneous users that can 
be served by a cellular base station. When cellular technology 
wasn't as popular and was very expensive, this wasn't much of a 
factor. The ability of radio signals to penetrate the area was 
the limiting factor.
    But today the limiting factor in how far apart space 
stations can be is the number of customers they have to serve. 
And as this technology has exploded, the number of customers in 
any given area has gone explosively up, particularly in urban 
and densely populated areas.
    At the same time we as cellular users have more choices. 
There is more competition, and we have become more demanding of 
our cellular service providers, and we expect our phones to 
work in more and more places. We expect the coverage to be more 
and more reliable. As I mentioned earlier this morning, I 
discovered my phone was able to receive a call to my surprise 
in the Metro subway.
    Being able to provide service over a continuous area 
requires, again, that we include sectors that cover dead spots 
and that are able to provide good signal coverage everywhere we 
go. Those ubiquitous advertisements--``Can you hear me now?''--
reflect cellular service providers' competition with one 
another to provide base stations that cover more and more 
service area more and more densely.
    So the effect is that the size of a sector today is far 
smaller than it was 25 years ago because of the natural 
evolution of the technology.
    Mr. Nadler. Could you sum up, perhaps? In particular, tell 
us how big a sector is these days.
    Mr. Blaze. Right. So the largest sectors can still be 
several miles in diameter in rural areas, sparsely populated 
areas. But the latest technology has trended toward what are 
called variously microcells, picocells and femtocells that are 
designed not to serve an area of miles in diameter, but rather 
to serve a very, very specific location, such as a floor of a 
building or even an individual room in a building such as a 
train station waiting room or an office complex or hotel or 
even a private home.
    So as we have moved toward very small sector locations, we 
can, if a user is in one of these very small sectors, 
essentially determine the location----
    Mr. Nadler. Exactly where he is--exactly where he is.
    Let me ask one question, and I have to ask you and continue 
on to the next witness. It is physically necessary for the 
system to operate for the system to know where your cell phone 
is in order to route the calls there. And obviously, the 
smaller the area, the fewer the competing calls, and that is 
why it gets smaller and smaller, with obvious implications for 
accuracy of telling us.
    What is the technological necessity and what is the 
practice of retaining this information? In other words they 
need to know where you are now so they can route the call. Do 
they need to know where you were an hour ago or a day ago? And 
do they retain this information? And if so, why?
    Mr. Blaze. Well, every service provider--I should say I am 
not speaking for any service provider, and every service 
provider will have its own practices--but in general, service 
providers record everything essentially forever. This 
information is extraordinarily valuable for business, marketing 
and technical purposes. It tells them where their network needs 
to be improved, were dead spots are, and how their customers 
use their phones.
    [The prepared statement of Mr. Blaze follows:]
                    Prepared Statement of Matt Blaze






























                               __________
    Mr. Nadler. Thank you. Thank you very much. I am sorry we 
went over here, but we have to get a basic education in the 
basics here so we know what we are--so at least we think we 
know what we are doing.
    Our next witness is Mr. Amarosa.

TESTIMONY OF MICHAEL AMAROSA, SENIOR VICE PRESIDENT FOR PUBLIC 
                     AFFAIRS, TRUEPOSITION

    Mr. Amarosa. Good morning, Mr. Chairman and Members of the 
Subcommittee. My name is Michael Amarosa, and I am the senior 
vice president of TruePosition. It is a privilege to appear as 
part of this Subcommittee's examination of the Electronics 
Communication and Privacy Act.
    Wireless technology plays an ever-increasing role in the 
daily communications of Americans, including during emergency 
situations. Of the 300,000 emergency calls to 911 daily, over 
half are now from wireless phones. This shift has the ability 
to locate wireless calls, the core element of our Nation's 
emergency response 911 structure.
    Expeditious and effective emergency response has been at 
the center of my professional career. I spent 24 years working 
in public safety, and it was my honor to manage the largest 911 
center in the Nation out of the New York City Police 
Department. During that tenure we completed major upgrades of 
the system and infrastructure that we needed to support the 
NYPD's mission.
    Since leaving the PD, my role with TruePosition has given 
me the opportunity to work with a range of agencies in tackling 
ongoing and heightened national effort to bring modern 
technology to support emergency response, preparedness and 
investigations.
    Long before wireless technology became prominent, 
policymakers and emergency response officials embraced the 
critical need to quickly locate individuals facing an 
emergency. The faster help arrives, the more likely lives are 
to be saved.
    This premise underlies the FCC's mandate that the wireless 
operators provide public safety agencies with location 
information in an emergency situation. The requirement, as you 
know, is known as Enhanced 911. It dictates that the location 
of the wireless 911 calls must be transmitted to the 
appropriate emergency call center.
    TruePosition's very existence has evolved from the wireless 
location mandate. We are the leading provider of location 
determination solutions. Currently, two technologies address 
the FCC's location accuracy requirements. They are GPS, which 
was discussed earlier, and Uplink Time Difference of Arrival.
    Both of these technologies use what we know about radio 
waves. We are able to measure the distances from a known point 
such as a cell phone to an unknown point such as satellites and 
transmitters, because we know radio waves travel at constant 
velocity, and are able to make calculations to locate the phone 
from that point.
    UTDOA differs from GPS, and the network base works in 
virtually any environment. It is not affected by obstructions 
such as tall buildings or concrete walls. It is able to locate 
all mobile phones, including those that are not GPS-enabled. 
Its accuracy is very high. It typically falls within 50 meters 
of that accuracy level.
    Technology is extremely useful in law enforcement 
situations as well. Police used UTDOA recently to rescue a 
woman kidnapped in Hamilton County, Ohio, who was locked in the 
trunk of a vehicle. GPS was not an option, because it could not 
penetrate the metal trunk. A UTDOA location platform allowed 
police to constantly monitor the victim's location and 
apprehend the kidnappers.
    In addition to serving 911 calls, wireless location 
technology has evolved in several public and private sector 
applications, including locating victims suffering from 
Alzheimer's, autistic children. It can be used to locate 
contraband cell phones in prison environment as an alternative 
to prison jamming.
    Wireless technology has revolutionized communication. 
Unfortunately, it is also being used by criminals and 
terrorists. In the 2004 Madrid bombings, terrorists used 
improvised explosive devices to attack morning commuting 
trains, killing 191 people and wounding over 1,800. Mobile 
phones were used to detonate these IEDs. High-accuracy 
technology is our crucial element in preparedness, 
investigation and response to these dangers.
    TruePosition's UTDOA technology delivers two key important 
elements in a mission-critical location--high accuracy and high 
reliability. It can provide information relating to the details 
of criminal conduct and be an important tool in preventing 
tragedy. It can present an additional dimension to the 
comprehensive information picture that intelligence and law 
enforcement officials use on a regular basis.
    TruePosition's security solutions capture and analyze 
wireless data, including current activities, mobile events and 
interactions. The technology can help identify and track any 
mobile device in a real-time mode in any environment with high 
accuracy and reliability. It can be deployed in such areas as 
border security, critical infrastructure protection, and law 
enforcement to aid in forensic intelligence.
    Location technology has contributed to saving lives and 
personal property. To allow for the continued use and growth of 
this lifesaving technology, I urge that any government action 
in this area of wireless technology remain technology neutral. 
I commend the Subcommittee on its efforts to bring the ECPA up 
to date and appreciate very much the opportunity to appear 
before you today and welcome any questions, Mr. Chairman.
    [The prepared statement of Mr. Amarosa follows:]
                 Prepared Statement of Michael Amarosa


























                               ATTACHMENT






















                               __________

    Mr. Nadler. Thank you.
    I will now recognize Mr. Littlehale.

  TESTIMONY OF RICHARD LITTLEHALE, ASSISTANT SPECIAL AGENT IN 
     CHARGE, TECHNICAL SERVICES UNIT, TENNESSEE BUREAU OF 
                         INVESTIGATION

    Mr. Littlehale. Chairman Nadler, Ranking Member 
Sensenbrenner and honorable Members of the Subcommittee, my 
name is Richard Littlehale. I am the assistant special agent in 
charge of the Technical Services Unit of the Tennessee Bureau 
of Investigation, and I have spent the better part of 15 years 
using communications records to protect the people of 
Tennessee.
    I am grateful to the Subcommittee for giving me the 
opportunity to share my perspective on how location information 
derived from communications technologies can be invaluable in 
the most critical of law enforcement investigations. I offer 
testimony here today on my own behalf, based on my own 
experience.
    As communications technology evolves, so must the laws that 
govern it. And there is always room for clarification. That 
said, I believe that the balance struck between privacy and 
public safety in the existing ECPA framework is in a broad 
sense a reasonable one, and I would respectfully call your 
attention to some risks inherent in upsetting the current 
paradigm.
    I cannot overstate the value of location evidence to law 
enforcement. It can help find a kidnapped child, apprehend a 
dangerous fugitive or prevent terrorists from following through 
on a violent plan. We are not just talking about cell site 
information either. Imagine a pedophile grooming a potential 
child victim using a chat application on a smartphone. Law 
enforcement must be able to quickly generate and serve process 
on however many service providers are necessary to find that 
subject before the unspeakable happens.
    The current legal framework distinguishes between network 
transactional location records stored and recorded by the 
service provider in the ordinary course of its business and 
demand-based location information generated solely based on a 
law enforcement request.
    This information is reasonable, because it is--this 
framework, rather, is reasonable, because it is consistent with 
other ways location information can be obtained and used by law 
enforcement and because it is consistent with the view that 
information voluntarily turned over to a third party enjoys 
less privacy than those things we keep from the outside world.
    A person's location at a particular time can be derived 
from any number of sources other than mobile devices. A bank 
will have records of a customer's use of a credit card or ATM 
card in their possession that would show exactly when and where 
that particular card was used. A transportation authority might 
have records of when a commuter passed by a particular 
tollbooth based on the information provided by their commuter 
pass.
    Those records can currently be obtained with a subpoena in 
most cases. Should that standard change? Even the law of 
tracking devices permits installation and monitoring without 
probable cause under some circumstances.
    Complexity is hardly foreign to the Constitution. The same 
piece of property--a person's suitcase, say--may be governed by 
completely different legal standards when it is laying on a 
closet shelf, in the trunk of a car, or passing through a 
border checkpoint.
    If we suppose that a blanket standard is necessary, we must 
consider the consequences of rounding up to probable cause in 
all cases. Location information can be used to good effect in 
many instances where law enforcement may not have developed 
probable cause. Further, the time required to generate a search 
warrant and have it signed may itself hamper law enforcement's 
efforts to move quickly in an investigation.
    I fully acknowledge that the above argument could also be 
used in favor of relaxing the search warrant requirement 
completely in order to make law enforcement more efficient in 
all investigations. Of course, such a thing would be foreign to 
our bedrock legal principles. In this case, however, the 
present balance of judicial supervision and law enforcement 
efficiency has existed for some time and should not be 
abandoned without a demonstrated need.
    Finally, even a blanket standard is going to have trouble 
covering everything in this area. Imagine our pedophile with a 
smartphone again. Say he is using the WiFi in a coffee shop, 
and that activity generates information that can be localized 
to that particular shop at a particular time. That is 
information location information far more accurate than a cell 
sector. Would it require a search warrant to get that 
information from the shop's Internet service provider?
    Generating a search warrant for each and every child 
exploitation lead will slow the processing of those leads. If 
that is acceptable, then so be it. But it is a downstream 
effect that must be considered.
    And what about broader locations? Are we only talking about 
cell sites? What if I just want to know what market your phone 
is using, what city you are in? That is location information.
    We must also remember that legal barriers are not the only 
ones that keep communications records out of law enforcement 
hands. In many instances we are unable to utilize evidence that 
would be of enormous value in protecting the public, because 
the technologies used to carry and store that information are 
not accessible to us, no matter what legal process we obtain.
    Encryption, smartphone, countermeasure applications, and a 
dizzying variety of communication streams are walling off more 
of the evidence we need at a steadily increasing rate. If the 
law enforcement community does not successfully bridged this 
gap with legal reform, training, solutions development and 
funding, then our ability to protect the public using this 
information will degrade at the same breakneck pace.
    Whenever our society moves forward with the privacy versus 
public safety debate, we should be mindful that any 
redefinition of law enforcement access to the information it 
needs, whether by altering legal barriers or allowing private 
corporations to elect new technological barriers, may well come 
at a price.
    Admittedly, we cannot let extreme situations rule the law. 
But neither should we ignore the fact that they exist. What 
seems like a small change in abstract setting may seem less so 
when I am standing on your doorstep at 4 in the morning, and 
your child is missing, and every second counts.
    Thank you for giving me the opportunity to share one law 
enforcement perspective on the need for caution as we open 
dialogue on ECPA reform. I encourage you to seek the input of a 
wide range of law enforcement experts as you move forward on 
this critical issue. And I look forward to your questions.
    [The prepared statement of Mr. Littlehale follows:]
                Prepared Statement of Richard Littlehale














                               __________
    Mr. Nadler. Thank you.
    Mr. Zwillinger is now recognized.

               TESTIMONY OF MARC J. ZWILLINGER, 
                    ZWILLINGER GENETSKI, LLP

    Mr. Zwillinger. Thank you, Mr. Chairman.
    I am very pleased to be here today to discuss ECPA reform 
generally and location data specifically. I have been working 
with ECPA for over 13 years--first, as a DOJ attorney who used 
to teach prosecutors and agents how to acquire electronic 
evidence, and for the last 10 years as a lawyer, helping ISPs 
and wireless providers respond to the government's request for 
data. As a result, I can tell you three things about ECPA. 
First, it is complicated.
    Second, it has done a fairly good job over the past 20 
years in striking the right balance between law enforcement 
needs and user privacy. But now it is definitely in need of 
reform to bring its privacy protections into the modern age of 
cloud computing, social networking and mobile networks.
    One area where ECPA no longer functions well is with regard 
to location data. This morning I want to focus----
    Mr. Nadler. Excuse me. Could you tell me what you--tell us 
what you mean by cloud computing?
    Mr. Zwillinger. The storage of data as opposed to locally 
on your computer in your possession, out in the network on the 
Internet in the cloud.
    Mr. Nadler. Thank you.
    Mr. Zwillinger. With regard to location data, ECPA is not 
functioning very well anymore. And I would like to focus on 
three of the issues I put forth in my written statement--one, 
the type of location data that raises privacy concerns; second, 
the discrepancy between acquiring real-time data and historical 
data; and third, to answer Mr. Johnson's question, the reason 
why Congress should not wait for the courts to resolve these 
issues.
    First, as to location data generally, of course, Mr. 
Littlehale is right. Law enforcement obtains a wide variety of 
records that provide insight into a person's past location. For 
example, a landline call or a credit card receipt can shed 
light on where a person was at a given moment in time. But when 
those transactions occur, it is reasonably clear that some 
record is being made of that event, and only limited 
information about an individual's movements is disclosed.
    The type of location data that concerns us here has the 
opposite characteristics. It may be collected without a 
person's knowledge, and it allows the tracking of a person's 
movements on a relatively precise and continuous basis. This 
type of tracking is much more persistent and much more 
intrusive than the disclosure that I bought a coffee at 
Starbucks at 9 o'clock this morning.
    This is why it is also a mistake to think about ECPA reform 
solely in the context of relatively imprecise cell site 
location information, because whatever the limitations are on 
cell cite limitation today, cell tower data will rapidly evolve 
into the more precise and consistent information that is being 
supplied by GPS technology.
    Second, as to getting historical data versus prospective 
data, the existing statutory framework clearly distinguishes 
between the two. As to past location data, the application of 
ECPA is fairly straightforward. Location data, at least for 
calls, is properly considered a record or other information 
pertaining to a subscriber or customer, which the government 
may get under Section 2703(d) of the Stored Communications Act 
using the specific and articulable facts standard that is 
explained in Judge Smith's chart.
    But the framework for real-time data is not anywhere near 
as clear. On their face you would think that the pen register 
and trap and trace statutes would allow the government to 
access location data under a relatively low standard that 
requires a court to issue a pen and trap order whenever a 
government agent certifies that the location information is 
relevant and material to an ongoing investigation.
    But when Congress passed CALEA in 1994, it precluded law 
enforcement from relying solely on pen/trap authority. The 
government's workaround, which you have heard about, has been 
to combine the authority of a pen/trap order with the 
historical request for data under Section 2703(d). But this 
doesn't work.
    An order under 2703(d) can only provide access for 
historical records, not prospective data. It is not a 
surveillance statute, and there are no provisions in 2703(d) 
that contemplate future surveillance or provide limitations on 
the duration and minimization and monitoring. So it can't be 
the additional authority that Congress needed in 1994 when it 
said that law enforcement could not rely solely on pen/trap.
    So how can it be that there are different rules for 
obtaining information about where I was an hour before an order 
was signed compared to an hour after an order was signed? Those 
rules are entirely different and clearly to this date 
unresolved.
    Some courts have tried to fix this discrepancy by 
creatively applying the tracking device statute found in 18 USC 
3117 to apply to both types of data, but as I described in my 
written testimony, I don't think the tracking device statute 
can apply to a consumer's own electronic devices.
    But the fact that courts are trying to do so is strong 
evidence of the need for Congress to step in and harmonize the 
before and after rules for the same set of information and to 
set a properly robust standard for the government to meet 
before it obtains precise location data.
    Finally, as to Mr. Johnson's question, I don't think 
Congress should expect that the problem will be resolved by the 
courts anytime soon. First, the application of the Fourth 
Amendment to location data is uncertain. Even if every device 
that emitted location information was considered a tracking 
device, the Fourth Amendment alone would not necessarily 
mandate a prior warrant to collect information from these 
devices.
    In fact, in Knotts and Karo, the leading Supreme Court 
cases, the court suggested that a warrant is only required when 
the data from a tracking device reveals information about 
private spaces. Certainly, cell phones may be carried into 
private spaces, but not always in private spaces.
    And second, just last week in the Quon case, the Supreme 
Court deliberately shied away from extending Fourth Amendment 
protections to rapidly evolving technology.
    So in conclusion, I don't think Congress should share the 
court's reluctance to address privacy concerns created by 
modern technology. Competing claims over privacy rights are 
being litigated on a daily basis. And as everyone struggles to 
apply a 1986 law to technology that is becoming more precise in 
its ability to pinpoint location, the time is ripe for Congress 
to set out clear and sustainable rules that better balance user 
expectations and law enforcement needs in light of modern 
technology.
    Thank you for the opportunity to testify today.
    [The prepared statement of Mr. Zwillinger follows:]
                Prepared Statement of Marc J. Zwillinger


















                               __________
    Mr. Nadler. Thank you.
    And I will now recognize Judge Smith.

  TESTIMONY OF THE HONORABLE STEPHEN WM. SMITH, UNITED STATES 
          MAGISTRATE JUDGE, SOUTHERN DISTRICT OF TEXAS

    Judge Smith. Thank you, Mr. Chairman, Ranking Member, 
Members of the Subcommittee. I am honored by your invitation to 
appear at today's hearing. I am a United States magistrate 
judge, but I am testifying on my own behalf this morning, not 
on behalf of any group or organization. But it is testimony 
informed by hands-on experience with ECPA over a number of 
years.
    Ordinarily, your Committee would probably be better served 
by hearing from a Supreme Court justice or Court of Appeals 
judge steeped in the law, able to give a full exposition of its 
strengths and flaws based on years of experience and 
observation. But on this topic, cell phone tracking, that would 
not be possible. Very few appellate courts have dealt with ECPA 
in any respect over the years, and as Exhibit B to my written 
testimony shows, not a single one to date has dealt with the 
question of legal standards or compulsory government access to 
cell site location information.
    Ponder this fact. For nearly a quarter-century, magistrate 
judges have been issuing tens of thousands of these orders 
under a fiendishly complex statute without any substantial 
guidance from a higher court. And I can't think of another area 
of law in which that could be said. You know, FISA, perhaps--
Foreign Intelligence Surveillance Act--but then FISA is a 
special case and was understood to be a departure from routine 
law enforcement for everyday crime.
    I believe that is an unhealthy state of affairs for our 
democracy. First, without a functioning system of appellate 
review, the process of refinement, clarification of statutory 
ambiguity and uncertainty cannot take place. And this is 
especially unfortunate for a statute as complex as ECPA.
    A more serious concern is that a basic check on judicial as 
well as prosecutorial power has been removed. Without the 
discipline of appeal, every magistrate judge essentially 
becomes a law unto himself or herself answerable to no one. And 
law enforcement is able to channel their ex parte applications 
to a judge known to have a more accommodating view of the law.
    Now, this does not happen with respect to ordinary search 
warrants. The cause of this unhealthy state of affairs, in my 
opinion, is the regime of secrecy that has enveloped----
    Mr. Nadler. Excuse me. Why does this not happen with 
ordinary search warrants?
    Judge Smith. Well, because ordinary search warrants are 
issued pursuant to a warrant under the statute under Rule 41, 
and under that rule the party whose house is being searched 
gets notice, receives a copy of the warrant. Typically, they 
are not sealed.
    Mr. Nadler. It is not ex parte.
    Judge Smith. Right. It is not--well, it is ex parte, but 
before the search is carried out, the person whose home is 
being searched----
    Mr. Nadler. Gets notice.
    Judge Smith [continuing]. Gets notice.
    Now, the cause of this unhealthy state of affairs, as I 
said, is the regime of secrecy. Under ECPA gag orders and 
permanently sealed cases prevent law-abiding citizens from 
finding out whether and to what extent their electronic lives 
have been intruded upon by government. Again, this does not 
happen when law enforcement searches your home or your office 
or your car.
    The difference boils down to notice. Now, without notice, 
and this can be pre-acquisition or post-acquisition, but 
without notice, due process of law becomes a dead letter.
    So I applaud the Committee's efforts to reform ECPA to face 
the new technological advances of the 21st century, but the 
problem with 20th-century ECPA is not just that it failed to 
anticipate new technology. Few of us back then could have 
imagined the cell phone of today and what it can do.
    The problem is that it is an overly complex statute that 
was allowed to operate almost entirely in the dark, off the 
radar screen of the general public as well as appellate courts. 
Thus, the balance that it struck, at least in my view, between 
privacy and law enforcement has been eroded. And few seemed to 
notice, at least until now.
    Now, your task will be to strike a new balance that will be 
sustainable for our time and time to come. My prescription for 
sustainability is twofold--more bright lines and more sunshine. 
I believe the principles endorsed by the Digital Due Process 
Coalition go a long way toward the former goal. I think my 
written remarks suggest some ways to accomplish the latter.
    In closing, I want to thank this Committee for inviting the 
views of one of the hundreds of magistrate judges who wrestled 
in the trenches, as you say, with this statute for years. And 
with that, I would be glad to answer any of your questions. 
Thank you.
    [The prepared statement of Judge Smith follows:]
         Prepared Statement of the Honorable Stephen Wm. Smith


































                               __________

    Mr. Nadler. I thank you.
    I thank all the witnesses. And we will start the 
questioning by recognizing myself for a while.
    Professor Blaze, with regard to newer technologies that 
measure time and angle of arrival, you state that according to 
the policy of the carrier, a customer's location information 
might be routinely received by that carrier or not, even at 
times other than when calls are made or received. What factors 
might it or does the carrier consider in electing whether to 
store such data or not?
    Mr. Blaze. Well, the important thing to understand is that, 
first of all, this technology is not yet fully deployed in 
every cell site, but carriers are embracing time of arrival and 
angle of arrival calculations not just to comply with E-911 
mandates for providing location during emergency calls, but 
because it provides them with extremely important information 
for managing their network.
    In particular, it tells them where their customers are 
located to resolution of typically about 50 meters. And it 
tells them where they move about, where----
    Mr. Nadler. Why would they want to know within 50 meters 
where their customers are?
    Mr. Blaze. Well, it tells them where new infrastructure is 
needed, where old infrastructure is redundant, whether the 
expensive real estate for a tower is paying for itself properly 
or whether they can afford to move it to another location, 
whether microcells are required, and so on.
    So it is very strongly in the interest of wireless carriers 
to collect this data as often as possible and as pervasively as 
possible, to store it effectively forever, and to analyze that 
data intensely just for the operation of its own business.
    Mr. Nadler. Thank you.
    Mr. Amarosa, I was struck by one thing you said. You said 
therefore the distance between two points--radio waves 
propagate at a constant velocity, obviously. Therefore, the 
distance between two points can be determined by measuring the 
time it takes the radio wave to travel between the two points 
and multiplying by the velocity of propagation of the radio 
waves to derive the distance.
    That assumes you know what time it left. You know what time 
he received it. In order to know the distance, which is to say 
the time of propagation, you have to know the time it left the 
transmitter. How do you know that?
    Mr. Amarosa. Based on putting receivers on the cell sites, 
you take the differences in time that it hits all the different 
cell sites.
    Mr. Nadler. Difference of time, so triangulate it by----
    Mr. Amarosa. Exactly. Exactly.
    Mr. Nadler. You know the distance from here and the 
distance from here, and you can----
    Mr. Amarosa. Right.
    Mr. Nadler. Okay. Thank you.
    Now, also you state the TruePosition location technology 
used by GSM carriers can identify mobile phone devices 
typically within 50 meters. Fifty meters is how many feet?
    Mr. Amarosa. It is roughly about three feet a meter, so you 
are talking about 150 feet.
    Mr. Nadler. So it is 150 feet. Is TruePosition able to 
provide this high degree of accuracy after the fact or only 
when requested prospectively by E-911 operators and law 
enforcement?
    Mr. Amarosa. The way the system works right now, you 
establish triggers in the system to locate. You don't locate 
every call. So the network couldn't handle the location of 
every call. Right now, the only way you do that is based upon 
the fact of either being prior written consent or on any 911 
situation where the call would come in.
    And prior----
    Mr. Nadler. Wait a minute. I thought from your testimony 
and Professor Blaze's that it automatically recorded every 
call, because that is how you get all this system information. 
In other words they automatically record not the call----
    Mr. Amarosa. They are not locating every call. The way the 
system works today is they are only locating those calls that 
have certain triggers. The triggers are the E-911 calls that 
are coming in. And that is the way we are providing location 
back to the carrier.
    Mr. Nadler. But I thought in order to--well, let me ask 
Professor Blaze.
    This seems to contradict what you were saying a moment ago 
about you need to know the location of all the calls to figure 
out how many cells you need, where, and so forth. Do you want 
to----
    Mr. Blaze. So the cellular carrier always records the cell 
sector location for every call and any kind of----
    Mr. Nadler. Sector for every call, the specific location 
only where----
    Mr. Blaze. Specific location only when specifically 
requested. My understanding is that cell carriers do that, as 
Mr. Amarosa points out, on E-911 triggered calls and on phones 
under surveillance and also periodically on random phones to 
figure out what is going on.
    Mr. Nadler. Okay. So----
    Mr. Blaze. As the technology becomes cheaper and more 
widespread, they can do it more and more often.
    Mr. Nadler. So in other words--the question I was going to 
ask Mr. Amarosa next is can TruePosition technology be used by 
carriers to gather and potentially retain this high accuracy 
location information of all subscribers at all times? Or is 
this high accuracy information only collected and retained 
after an appropriate and valid legal request by authorities?
    You answered the latter, and you also said it would be cost 
prohibitive to do the former. But Professor Blaze is saying 
that that cost prohibition will erode, and it is predictable 
sometime in the future that you may be able to and may in fact 
become standard to get this very sensitive location for all 
calls.
    Mr. Amarosa. I don't know if it will become standard. I 
think the capabilities will eventually exist, but whether it 
becomes standard----
    Mr. Nadler. The capabilities will exist. It will get 
cheaper, and it may or may not become standard.
    Mr. Amarosa. Right.
    Mr. Nadler. And thank you. So I mean, we have to worry 
about that as a possibility.
    Now, can TruePosition's U-TDOA systems work in virtually 
any environment?
    Mr. Amarosa. Yes, they can.
    Mr. Nadler. Because the radio waves will penetrate 
anything?
    Mr. Amarosa. The way the system will work, you have in-
building capabilities that certain other technologies do not 
have. You have the ability, if you can make a call and if you 
look at your phone now, you will see that you have the ability 
to make a call inside. We can locate that airway. It is not 
blocked by the diffraction of concrete walls----
    Mr. Nadler. And that is because it is a stronger signal 
than it used to be, or what?
    Mr. Amarosa. It is because it is using radio waves, and 
that is not going back to the satellite. It is going to the 
transceiver where the transmitter is picking up and making that 
call to the----
    Mr. Nadler. It is going to the cellular tower, you mean.
    Mr. Amarosa. Right. Exactly.
    Mr. Nadler. And the radio wave that goes to the cellular 
tower is more powerful or more penetrating than the one that 
went to the satellite?
    Mr. Amarosa. Because of the fact that the GPS chip is where 
you are locating from, rather than from a radio wave.
    Mr. Nadler. I am sorry.
    Mr. Amarosa. The GPS system is located based upon the chip 
in the phone, which is communicating with the satellite----
    Mr. Nadler. Right.
    Mr. Amarosa [continuing]. As opposed to the radio wave, 
which is communicating with the base station receiver. And the 
radio waves can penetrate through buildings and concrete walls 
and steel structures.
    Mr. Nadler. Yes, but the radio wave going to the chip, to 
the satellite, also has to penetrate that wall.
    Mr. Amarosa. And it doesn't. And it doesn't reach the 
satellite, because of the way the satellite systems work. You 
have to have an open sky capability and the ability to see the 
satellites----
    Mr. Nadler. Okay. Because it is at a different angle, 
because it is going up as opposed to----
    Mr. Amarosa. Right. Exactly. You take, for instance, if you 
tried to use the GPS capability in the Wall Street area in New 
York City. Even though you just can't get through because of 
the narrowness of the streets.
    Mr. Nadler. Thank you.
    Mr. Zwillinger, we have heard much today about 
revolutionary location based technologies that give extremely 
precise information about where an individual or individuals 
may be at any given time.
    Can any meaningful legal distinctions be drawn that should 
inform our review of the ECPA statute and its application to 
location based information? To your knowledge does DOJ draw 
distinctions with regard to location information derived from 
different location based technologies? Is that a sensible way 
to make a distinction based on what technology is used?
    Mr. Zwillinger. Well, unfortunately, it has been the only 
one so far. Let me go through three possible ways to draw a 
distinction. You know, one way to draw a distinction is between 
historical and prospective data. And for reasons we talked 
about, that is not a rational distinction. It is the same 
invasiveness 5 minutes ago versus 5 minutes from now.
    The second one is where the Fourth Amendment points, which 
is----
    Mr. Nadler. Well, wait. Let me just challenge you on that. 
Where you are located right now might be important for an 
emergency use. You need a paramedic quickly, or, you know, you 
use E-911, et cetera. Where you were may be important for 
evidentiary reasons, which is very different from an emergency 
response. So maybe you should make a rational distinction.
    Mr. Zwillinger. Well, I think emergency is the distinction 
there, though. I mean, no ECPA reform would really do much to 
the emergency disclosure provisions that would allow you to 
make disclosures for an emergency. And E-911 is based on a 
consent theory that when you dial 911, you are consenting for 
disclosure. So I don't think making a distinction on that basis 
would cause a real-time prospective distinction. We need an 
emergency exception. We need the 911 capability. But I don't 
think that should drive the framework of ECPA.
    So the second distinction is reasonably precise versus 
general location data. And this is a distinction, I think, DOJ 
does draw to some extent now, because my understanding is--and 
obviously, I am not there--that their guidance is if they are 
going to try to track GPS data, they suggest that districts use 
a Rule 41 warrant, although there are some notable cases where 
that isn't being followed.
    But their theory, I believe, is that it is constitutionally 
based, that a GPS can give you information about being inside a 
structure, and cell site data isn't as precise. I think that is 
a very dangerous distinction. We have been hearing that today 
that this technology is evolving to be more precise, that the 
GPS technology is (a) being used for different applications and 
that providers may track more precise data. So I am not sure 
that is the way for ECPA----
    Mr. Nadler. Well, we had that with the Supreme Court in the 
1920's and 1930's, actually. And I think it was Justice Holmes 
who said the distinction of whether the bug is on the outside 
of the wall or the inside of the wall didn't make a heck of a 
lot of difference and that in fact he speculated--I think in 
1928, he said someday it may be possible from across the street 
or a mile away to tell what is being said inside a room, and we 
should protect that privacy.
    So do you think the distinction might be better whether you 
are inside a room or a place where we will at least impute to 
you a reasonable expectation of privacy than what you are 
saying, or where in your house you are is more private--is a 
greater expectation of privacy than whether you are in your 
house or in the car or at the University?
    Mr. Zwillinger. Well, to some extent the Fourth Amendment 
does turn on that, which is one of the reasons I think Congress 
really needs to act here, because those aren't the distinctions 
that are meaningful to us in society. I mean, if I am 
continuously tracked everywhere I go all day, the fact that 
sometimes I am outside and sometimes I am inside doesn't give 
me comfort that it was okay to track me during those moments I 
was outside.
    So, you know, to me when we are thinking about ECPA reform, 
we are thinking about where we want to raise the standard. It 
is not were you in the house at that moment? It is are we 
learning something about your continuous movement versus 
learning something about you at a given moment in time, like 
you bought a book at Barnes & Noble this morning.
    Mr. Nadler. And which should have greater privacy 
consideration--your continuous movement or an information 
moment in time and why?
    Mr. Zwillinger. I think continuous movement, because it is 
more invasive, and it is more intrusive to be tracked at every 
moment of the day all day than, as Mr. Littlehale pointed out, 
they get a credit card receipt, they know you were at a gas 
station. This has been the way it has been for a long time. It 
is an existing record. Nothing is being turned on. The 
providers aren't being enlisted to become government agents.
    Mr. Nadler. So in other words, you make a phone call or 
receive a phone call, and you at that point have less 
expectation of privacy than just the fact that it is in your 
pocket as you move around.
    Mr. Zwillinger. That is one way to look at it, yes.
    Mr. Nadler. Okay. And you said the third basis.
    Mr. Zwillinger. Well, I think I covered the status location 
versus continuous flow was the third basis I was thinking of.
    Mr. Nadler. I am sorry?
    Mr. Zwillinger. I said the static location versus 
continuous tracking is the third basis and one that I would ask 
the, you know, the Committee to think about.
    Mr. Nadler. Okay. I have one more question for Judge Smith.
    And you explained in your testimony that with regard to 
those magistrate and district courts that are granting access 
to prospective cell site data under 18 USC 2703(d), specific 
and articulable fact standard, they are only doing so for a 
limited cell site information.
    Can you explain the distinction between limited cell site 
information and full range or unlimited location data in 
greater detail?
    Judge Smith. As I understand it, the difference between 
limited cell site information and what I call full cell site 
information is the difference between a single tower signaling, 
reflecting the beginning and end of a call, as opposed to all 
the signaling information that that may be derived from signals 
bouncing off of multiple towers in a given location.
    In that circumstance that allows for the triangulation, 
more detailed, precise location pinpointing of the individual. 
And to date, as you correctly point out, I am not aware of any 
published decision by any of the magistrate judges, although we 
do disagree on the approach to the statute. I am not aware of 
any published decision in which a magistrate judge has allowed 
unlimited cell site information, GPS triangulation, on anything 
less than probable cause.
    Now, that doesn't mean--and I have been advised in some 
applications that just because there aren't any published 
decisions doesn't mean we are not getting it. So I am not 
exactly sure where all my colleagues stand on this, because not 
everyone has taken the time to publish a written decision.
    Mr. Nadler. Thank you.
    I now recognize the gentleman from Georgia.
    Mr. Johnson. Thank you, Mr. Chairman.
    I want the witnesses to respond to this scenario. Bill is a 
law enforcement officer. Jane is his wife. Bill suspects that 
Jane is having an affair. Bill issues a subpoena or a--not 
issues, but he tenders a subpoena to a cell phone provider or a 
global positioning system provider and requests information on 
the location right now of Jane.
    Can that law enforcement officer be successful at acquiring 
that data, you know, where she is in real time right now? And 
what is the difference between him requesting that information 
versus the historical data--where has she been over the last 2 
weeks or so? Can that happen? First of all, can you get that 
information, a law enforcement officer, without showing any 
kind of probable cause or reasonable suspicion, but just simply 
a subpoena, ongoing investigation?
    If I could get a response to that, Mr. Amarosa? Mr. 
Littlehale? Mr. Zwillinger and Judge Smith? And I assume that 
we certainly have already heard from Professor Blaze about the 
fact that we compile that data, so if you would respond.
    Mr. Amarosa. Well, let me go first. We don't track 
individuals unless the trigger goes into effect, which is the 
911 call. So we are not tracking--I forget her name--Mrs. Law 
Enforcement.
    Mr. Johnson. Jane.
    Mr. Amarosa. Jane. We are not tracking her at this point in 
time. We don't maintain databases on calls that come into the 
system. If there was a call that comes into the system that is 
a non-911 call, we are not creating a location for it, so we 
wouldn't have it. We don't respond unless there is a lawful 
request, and it is----
    Mr. Johnson. What is a lawful request?
    Mr. Amarosa. Well, what we are responding to is court 
orders.
    Mr. Johnson. A court order.
    Mr. Amarosa. And the subpoena of the data----
    Mr. Johnson. A blank subpoena or a subpoena issued by the 
court--blank.
    Mr. Amarosa. Well, I am not sure that this law enforcement 
officer has the authority to issue a subpoena.
    Mr. Johnson. Okay. All right.
    Mr. Littlehale?
    Mr. Littlehale. From my standpoint there are two issues. 
Obviously, what this individual has done is certainly a 
violation of that agency's policies, very likely a crime as 
well. I am not sure that the level of process required, if you 
assume a jealous officer who is willing to forswear his badge 
in order to track his wife, is going to make a difference, 
because he could just as easily swear out a false search 
warrant as he could--well, I say just as easily.
    It certainly would take him slightly more time to fake a 
search warrant and go to a judge and get it signed. But he 
could just as easily do that as he could if he had the power to 
issue an administrative subpoena.
    So the question is what safeguards does that particular 
department have in place? I can't speak for every department, 
but I can say from my department that would be difficult to do.
    Mr. Johnson. Well, can it be done? Theoretically, it can be 
done, can't it?
    Mr. Littlehale. Theoretically, it could, yes.
    Mr. Johnson. Okay. And you could get access to the cell 
phone record real-time where the person is located right now 
based on a subpoena.
    Mr. Littlehale. If that officer had a pretty good degree of 
sophistication in their use of electronic surveillance 
techniques and was willing to fake whatever process they needed 
to do and they were able to sneak around in their agency and 
use the right fax machines and that sort of thing, conceivably, 
yes. I would say it would be very difficult to do in my agency.
    Mr. Johnson. All right. Okay.
    Mr. Zwillinger. When you first started the question, I 
thought it was going to be a civil subpoena and the answer was 
going to be easy, because you can't get any prospective for the 
civil subpoena. But clearly, it is not. This is a law 
enforcement process.
    I don't think subpoena would get this piece of data. A 
subpoena might get a call record, but if this is historical, it 
should be produced with a 2703(d) order, which is the specific 
and articulable facts standard order. And if this is future, 
then that is a question we have been debating today.
    The government would try to get it with a hybrid pen 
register and 2703(d) order, and the esteemed judge to my left 
would decline it, and then they would have to come back with a 
warrant. But that is the open question. They would probably 
find a magistrate who would allow it. It shouldn't be a 
subpoena for prospective real-time cell location data, even 
under the current analysis of ECPA. It should be at a minimum a 
(d) order for historical data.
    Judge Smith. I agree with Mr. Zwillinger. I would hope that 
Bill in your hypothetical would not be able to get the 
information simply through a subpoena. It is possible that he 
may.
    I think it would probably depend on whether or not the 
provider would feel like that is a sufficiently legitimate 
order. Most providers, at least as far as I know, have counsel 
that advise them on what they need to see. And typically, a 
simple subpoena as opposed to a court order directing the 
provision of this information under 2703(d) or Rule 41 would be 
required, so----
    Mr. Johnson. Yes, even under FISA we had some situations 
where law enforcement officers were able to obtain data, 
promising that a subpoena would be submitted later.
    Judge Smith. This goes back--excuse me--this goes back a 
little bit to my point about no appellate oversight. Even if a 
judge issued this type of order without any sort of process or 
without any sort of probable cause or the lesser standard of 
specific and articulable facts, he may--he or she may be able 
to do it without any repercussions, because there is no appeal, 
basically.
    Mr. Johnson. Yes, according to the Department of Justice, 
its policy is that Federal agents should seek a warrant based 
on probable cause before retrieving real-time GPS tracking 
information. However, Freedom of Information Act requests by 
the ACLU have uncovered at least two jurisdictions, Florida and 
New Jersey, that seek this information under a lesser standard.
    Does DOJ policy bind the Federal agents or U.S. attorneys? 
And is it possible that this policy is being ignored in other 
jurisdictions, Judge Smith?
    Judge Smith. Well, I don't know exactly what DOJ's policy 
is. I will say that recently the majority of GPS precise 
tracking information requests that I have seen, they have gone 
under the Rule 41 standard. However, that has not been uniform. 
I have seen exceptions to that.
    Mr. Zwillinger. Can I comment briefly on that? As someone 
who represents providers, I frequently get requests from and 
subpoenas and other legal process from U.S. attorneys' offices 
around the country, and I am the one typically telling them 
that, you know, that what you have done is in violation of DOJ 
policy. And sometimes I hear back, ``Oh, do you mean those 
folks in Washington?'' To which I say, ``Yes, and you should 
call them.'' And they say, ``Well, our boss is a U.S. attorney, 
and he has been confirmed by the Senate, and we will do things 
the way we do things.''
    So to rely on DOJ policy to prevent prosecutors from doing 
things that we would think that the law would prevent them from 
doing is somewhat dangerous, and it puts a lot of burden on 
ISPs and providers to make sure that government isn't doing 
what it shouldn't be doing.
    Mr. Nadler. Thank you.
    The gentleman's time has expired.
    The gentlelady from California is recognized.
    Ms. Chu. Yes, I would like to ask Mr. Zwillinger or Judge 
Smith, Newsweek reported that location tracking has caused 
serious harm, and they cited a case where an agitated Alabama 
sheriff called the phone company's employees, demanding that 
they release the real-time data on his daughter's whereabouts. 
He claimed that she had been kidnapped and that the cell phone 
company pinged her cell phone every few minutes to identify her 
location, but in reality there was no kidnapping. The daughter 
had been out on the town all night, and the father wanted to 
know where she was.
    There was also a more sinister request that came from some 
Michigan police officers, who purportedly were concerned about 
a possible riot and then pressed another telecom company for 
information on all the cell phones that were congregating in an 
area where a labor union protest was expected.
    So what ability do you have to challenge the use of 
prospective cell phone information, as in the case of the 
Alabama sheriff's daughter? What rights do you have to 
challenge a warrant for a regular tracking device, if you deem 
it illegal or improper?
    Judge Smith. Well, if you are charged with a crime and they 
attempt to introduce evidence obtained in that manner, a motion 
to suppress can be filed. And if the evidence was obtained in 
violation of the Constitution, a violation of the Fourth 
Amendment, there is a suppression remedy.
    The difficulty is that not everyone charged with a crime is 
deemed subject to these orders. If you happen to call or are 
being called, have been called by the target phone, then you 
may be swept up in a criminal investigation, even though you 
are a pizza delivery guy or someone who has no contact, no 
contact with the criminal conspiracy.
    And so as I said, that is the problem. Law-abiding 
citizens' privacy rights might be impacted. They will not know 
about it because of the gag orders imposed on the providers and 
because of the sealing orders that courts impose prohibiting 
this information from being released to the public.
    Mr. Zwillinger. To add to that, the examples you have given 
are examples where the police officer or law enforcement 
officer claimed an emergency. And with regard to the disclosure 
of historical records, the discretion to disclose information 
based on emergency is with the provider. So providers that I 
represent might have forms that the agent will have to fill out 
to certify it is an emergency or to explain what the emergency 
is and why they should exercise this discretion.
    For forward-looking data like a pen register or wiretap, 
there was no discretion with the provider. If the right 
official comes and says this is an emergency, the provider must 
provide the data for 48 hours until the order is given, and 
then must shut it off.
    So there is not very much you can do in the situation where 
the right official claims an emergency and asks for forward-
looking process except to not provide location data in response 
to a pen. But again, you are talking about an abuse of the 
emergency provisions, and there is very little that can be 
done.
    Ms. Chu. So you are saying that with both the sheriff and 
with these Michigan police officers, they have to comply.
    Mr. Zwillinger. They have to comply with a pen register 
request for forward-looking data for 48 hours. I have to admit 
I am not sure exactly what the request was made in the Michigan 
situation.
    Ms. Chu. Well, it was for a labor union protest that was to 
be expected, so it was forward-looking.
    Mr. Zwillinger. Yes. Yes. If the emergency provisions were 
properly invoked, then they would have to comply.
    Ms. Chu. Okay. I would like to follow up on the DOJ policy. 
According to the Department of Justice, of course, it says that 
Federal agents have to seek a warrant based on probable cause 
before retrieving real-time GPS tracking information. However, 
Freedom of Information requests by the ACLU have uncovered at 
least two jurisdictions, Florida and New Jersey, that seek this 
information under lesser standards.
    This clearly seems to indicate a depth of confusion about 
how to handle real-time data for cell phones. And why is there 
such a difference between the official policy and what is going 
on in the ground? And does the DOJ policy bind Federal agents 
or U.S. attorneys to get warrants in any way?
    Judge Smith. Congresswoman Chu, again, I am not an expert 
on DOJ policy. I would presume that that would provide 
substantial guidance to the U.S. attorneys' offices. But again, 
a lot of the requests are initiated by various law enforcement 
agencies--the DEA, the FBI. We get requests from Postal Service 
postal inspectors occasionally for this type of information.
    So all I can tell you is it does not seem to me that the 
policy has been uniformly applied. Whether that is some kind of 
breach or not, I will not say.
    And by the way, I do want to say that although we have 
discussed here some--some examples of apparently abusive 
conduct on behalf of law enforcement, in my experience, the 
people that I deal with, the agents that come before me and the 
A-USA attorneys that appear before me are dedicated, ethical 
professionals. I think they are just as troubled by the 
confusion in this area as the judiciary is.
    Mr. Zwillinger. I would just supplement that by saying that 
the fact that it is DOJ policy, there is not a statutory 
provision to point to to say that this is required. This is 
what we are discussing today about to what extent ECPA should 
cover this. So the guidance is coming from an anticipation of 
what the constitutional ramifications will be for not getting 
the warrant. And it seems that some people are making different 
decisions about that.
    Ms. Chu. Thank you.
    I yield back.
    Mr. Nadler. I thank the gentlelady.
    And that will conclude our questions this morning just in 
time for a vote.
    The gentleman from Georgia?
    Mr. Johnson. Thank you.
    I do want to explain the fact that I have abundant respect 
and admiration for the law enforcement community. And, however, 
for the purposes of creating a picture of what can happen with 
someone--with a law enforcement officer in bad faith seeking 
this information helps us to understand the dilemma of good law 
enforcement officers seeking the same information.
    So we don't want the worst-case scenario to be prevalent 
and possible as we move forward into the future. And so I only 
raised that example of police misconduct to help enlighten us 
as to what the stakes are for failing to act with this very 
important issue.
    And I want to thank the Chairman for holding this hearing. 
And I look forward to working with you, Mr. Chairman, as we 
peer into the future of technology and what we can do to ensure 
that the basic Fourth Amendment right to privacy, which is 
implied in that amendment, that it be upheld. Thank you.
    Mr. Nadler. Thank you.
    And that is the bells ringing for votes on the House floor.
    Without objection, all Members will have 5 legislative days 
to submit to the Chair additional written questions for the 
witnesses, which we will forward and ask the witnesses to 
respond as quickly as they can so that their answers may be 
made part of the record. Without objection, all Members will 
have 5 legislative days to submit any additional materials for 
inclusion in the record.
    With that, I want to thank our panel of expert witnesses 
for their service.
    I want to thank the Members.
    And this hearing is adjourned.
    [Whereupon, at 11:48 a.m., the Subcommittee was adjourned.]
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