[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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57-802 WASHINGTON : 2010
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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
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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
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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.]
A P P E N D I X
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Material Submitted for the Hearing Record