[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]



 
                       GEOLOCATIONAL PRIVACY AND 
                         SURVEILLANCE (GPS) ACT

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

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,

                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY

                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                                   ON

                               H.R. 2168

                               __________

                              MAY 17, 2012

                               __________

                           Serial No. 112-125

                               __________

         Printed for the use of the Committee on the Judiciary


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




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                       COMMITTEE ON THE JUDICIARY

                      LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina         JERROLD NADLER, New York
ELTON GALLEGLY, California           ROBERT C. ``BOBBY'' SCOTT, 
BOB GOODLATTE, Virginia                  Virginia
DANIEL E. LUNGREN, California        MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio                   ZOE LOFGREN, California
DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana                  MAXINE WATERS, California
J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona                  Georgia
LOUIE GOHMERT, Texas                 PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio                     MIKE QUIGLEY, Illinois
TED POE, Texas                       JUDY CHU, California
JASON CHAFFETZ, Utah                 TED DEUTCH, Florida
TIM GRIFFIN, Arkansas                LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania             JARED POLIS, Colorado
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
MARK AMODEI, Nevada

           Richard Hertling, Staff Director and Chief Counsel
       Perry Apelbaum, Minority Staff Director and Chief Counsel
                                 ------                                

        Subcommittee on Crime, Terrorism, and Homeland Security

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman

                  LOUIE GOHMERT, Texas, Vice-Chairman

BOB GOODLATTE, Virginia              ROBERT C. ``BOBBY'' SCOTT, 
DANIEL E. LUNGREN, California        Virginia
J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
TED POE, Texas                       HENRY C. ``HANK'' JOHNSON, Jr.,
JASON CHAFFETZ, Utah                   Georgia
TIM GRIFFIN, Arkansas                PEDRO R. PIERLUISI, Puerto Rico
TOM MARINO, Pennsylvania             JUDY CHU, California
TREY GOWDY, South Carolina           TED DEUTCH, Florida
SANDY ADAMS, Florida                 SHEILA JACKSON LEE, Texas
MARK AMODEI, Nevada                  MIKE QUIGLEY, Illinois
                                     JARED POLIS, Colorado

                     Caroline Lynch, Chief Counsel

                     Bobby Vassar, Minority Counsel



                            C O N T E N T S

                              ----------                              

                              MAY 17, 2012

                                                                   Page

                                THE BILL

H.R. 2168, the ``Geolocational Privacy and Surveillance (GPS) 
  Act''..........................................................   185

                           OPENING STATEMENTS

The Honorable F. James Sensenbrenner, Jr., a Representative in 
  Congress from the State of Wisconsin, and Chairman, 
  Subcommittee on Crime, Terrorism, and Homeland Security........     1
The Honorable Jason Chaffetz, a Representative in Congress from 
  the State of Utah, and Member, Subcommittee on Crime, 
  Terrorism, and Homeland Security...............................     2
The Honorable Robert C. ``Bobby'' Scott, a Representative in 
  Congress from the State of Virginia, and Ranking Member, 
  Subcommittee on Crime, Terrorism, and Homeland Security........    22

                               WITNESSES

John R. Ramsey, National Vice President, Federal Law Enforcement 
  Officers Association
  Oral Testimony.................................................    24
  Prepared Statement.............................................    26
Joseph I. Cassilly, Past-President, National District Attorneys 
  Association
  Oral Testimony.................................................    27
  Prepared Statement.............................................    29
Edward J. Black, President and CEO, Computer & Communications 
  Industry Association
  Oral Testimony.................................................    36
  Prepared Statement.............................................    38
Catherine Crump, Staff Attorney, American Civil Liberties Union 
  (ACLU)
  Oral Testimony.................................................    47
  Prepared Statement.............................................    49

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable F. James Sensenbrenner, Jr., 
  a Representative in Congress from the State of Wisconsin, and 
  Chairman, Subcommittee on Crime, Terrorism, and Homeland 
  Security.......................................................     1
Material submitted by the Honorable Jason Chaffetz, a 
  Representative in Congress from the State of Utah, and Member, 
  Subcommittee on Crime, Terrorism, and Homeland Security........     3

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Electronic Privacy Information Center 
  (EPIC).........................................................    87
Letter from Walter A. McNeil, President, International 
  Association of Chiefs of Police................................   100
Berkeley Technology Law Journal..................................   101
Letter in opposition to H.R. 2168................................   180
Letter from the Federal Bureau of Investigation Agents 
  Association (FBIAA)............................................   183


            GEOLOCATIONAL PRIVACY AND SURVEILLANCE (GPS) ACT

                              ----------                              


                         THURSDAY, MAY 17, 2012

              House of Representatives,    
              Subcommittee on Crime, Terrorism,    
                             and Homeland Security,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to call, at 10:03 a.m., in 
room 2141, Rayburn House Office Building, the Honorable F. 
James Sensenbrenner, Jr. (Chairman of the Subcommittee) 
presiding.
    Present: Representatives Sensenbrenner, Goodlatte, Lungren, 
Chaffetz, Marino, Gowdy, Cohen, Johnson, Chu, Deutch, Jackson 
Lee, and Polis.
    Staff Present: (Majority) Caroline Lynch, Subcommittee 
Chief Counsel; Arthur Radford Baker, Counsel, Tony Angeli, 
Counsel, Lindsay Hamilton, Clerk; (Minority) Bobby Vassar, 
Subcommittee Chief Counsel; Joe Graupensperger, Counsel; and 
Veronica Eligan, Professional Staff Member.
    Mr. Sensenbrenner. The Subcommittee will be in order. 
Without objection, the share will be authorized to declare 
recesses during votes on the floor. Today's hearing is on H.R. 
2168, the ``Geolocational Privacy Surveillance (GPS) Act.'' I 
would like to especially welcome our witness and thank you for 
joining us today. I am joined by my colleague from Virginia, 
the distinguished Ranking Member of the Subcommittee, Bobby 
Scott, and also the principal author of the bill, the gentleman 
from Utah, Mr. Chaffetz. At this time I would like to ask 
unanimous consent to insert my opening statement in the record 
and yield my time to Mr. Chaffetz for an opening statement.
    [The prepared statement of Mr. Sensenbrenner follows:]
  Prepared Statement of the Honorable F. James Sensenbrenner, Jr., a 
 Representative in Congress from the State of Wisconsin, and Chairman, 
        Subcommittee on Crime, Terrorism, and Homeland Security
    Today's hearing examines H.R. 2168 the ``Geolocational Privacy and 
Surveillance'' or the ``GPS Act.'' This bill introduced by the 
gentleman from Utah has bipartisan support and currently has 18 
cosponsors. A similar measure has been introduced in the Senate.
    The law has not kept pace with the assortment of new communication 
devices and other technologies that are now widely available in today's 
marketplace. This is particularly true with location -based technology. 
As GPS technology has become cheaper, more widely available, and used 
more frequently in our everyday lives, the legal authorities and 
restrictions that are, or should be, in place to govern when such 
information about another person is accessed and used have become less 
than clear.
    It is also not completely clear how location-based technology is 
used and exactly who is using it. We know that law enforcement uses it 
and we will hear about that today. But the technology is also used or 
can be used by commercial entities and really just about anyone that 
wants to spy on your whereabouts.
    This bill defines what geolocation information is and establishes 
uniform legal authorities for obtaining this information. In short, 
this bill does what the Supreme Court invited, or challenged, the 
legislative branch to do when they decided the Jones case earlier this 
year. In that decision, Justice Alito stated ``A legislative body is 
well situated to gauge changing public attitudes, to draw detailed 
lines, and to balance privacy and public safety in a comprehensive 
way.''
    H.R. 2168 properly balances the appropriate use of the information 
obtained from the technology and the privacy rights of those enjoying 
the convenience and other benefits that the technology confers to us in 
our everyday lives.
    No one doubts that this information is useful, especially to law 
enforcement officers and agents. The big question is how do we balance 
the needs of the police with the expectations of privacy of those that 
they protect? This bill tries to strike the appropriate balance and 
give the police the tools they need and our citizens the privacy that 
they expect.
    It is no secret that court ordered electronic surveillance has long 
been a valuable tool for effective law enforcement. At least in terms 
of ``content'' interception, it is a technique that is typically used 
as a last resort, when other investigative techniques have failed or 
would be likely to fail or would even be too dangerous to try. When 
utilizing GPS and other location-based technology, the police often use 
it early in their investigations and there is generally no court order 
or supervision at all.
    By incorporating a judicial process that must be followed to seek a 
court order authorizing this type of surveillance, we are assured that, 
like in the case of the interception of a communications ``content,'' 
that this technique is not abused.
    There would likely be internal layers of review before a judicial 
application was even made. Facts would have to be established and 
proved, and ultimately a judge would be the one who decides, based on 
all of the information presented, if such a technique is warranted.
    Once authorized, law enforcement would comply with any reporting 
requirements of the court and there would be procedures to protect the 
rights of parties whose geolocational information was improperly 
obtained.
    It is important to underscore the fact that this bill does not take 
away the use of GPS or other geolocational technology from law 
enforcement officials. The loss of this investigative technique would 
be a huge risk to both our public safety and our national security. The 
bill provides some common sense and perhaps some long overdue ``rules 
of the road'' regarding the use of these technologies.
    I welcome our witnesses and look forward to hearing their 
testimony.
                               __________

    Mr. Chaffetz. Thank you, Mr. Chairman. I truly do 
appreciate your cosponsoring this legislation and for holding 
this hearing. I would ask unanimous consent to insert into the 
record four documents, the Salt Lake Tribune editorial of June 
19, the Oregonian Editorial, as well as a statement from 
Professor Matt Blaze of University of Pennsylvania, and a 
statement of principles from the digital due process coalition.
    Mr. Sensenbrenner. Without objection.
    [The material referred to follows:]
    
    


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                               __________
    Mr. Chaffetz. The role of Congress is to protect and defend 
the United States Constitution and personal liberties provided 
to American citizens under the Fourth Amendment. Put simply, 
the government and law enforcement should not be able to track 
somebody indefinitely without their knowledge or consent or 
without obtaining a probable cause warrant from a judge. Just 
because it can be done doesn't mean it necessarily should be 
done.
    With that in mind, I recently introduced the Geolocational 
Privacy and Surveillance Act. Companion legislation was also 
introduced in the United States Senate by Senator Ron Wyden of 
Oregon. I appreciate the bipartisan support of this bill, 
cosponsors in the Judiciary Committee include Chairman 
Sensenbrenner, Chairman Goodlatte, Chairman Coble, 
Representative Lofgren and Ranking Member Conyers. The bill 
creates a legal framework designed to give government agencies, 
commercial entities and private citizens clear guidelines for 
when and how geolocation information can be accessed and used.
    In Jones, the recent Supreme Court case on the issue, the 
court ruled unanimously that physically attaching a GPS device 
to a vehicle constituted the search under the Fourth Amendment. 
Most law enforcement agencies have responded by requiring their 
officers to obtain probable cause warrants before placing GPS 
devices on vehicles. However, the court stopped short of 
requiring a warrant for all geolocation information, including 
that obtained from other devices or methods such as smartphones 
or, for instance, the OnStar System.
    The Supreme Court has laid down the broad principle that 
location tracking without a warrant constitutes a search under 
the Fourth Amendment, it is now up to Congress to enact a 
comprehensive statute to fill in the details. In fact, Justice 
Alito specifically identified Congress appropriate place to 
resolve the difficult issues associated with the collision of 
new technologies and their impact on civil rights when he 
noted, ``In circumstances involving dramatic technological 
change, the best solution to privacy concerns may be 
legislative. A legislative body is well situated to gauge 
changing public attitudes to draw detailed lines and to balance 
privacy and public safety in a comprehensive way.''
    I believe that Americans have a reasonable expectation of 
privacy. And I agree wholeheartedly with Justice Alito's notion 
that it is truly the Congress that should deal with it. I 
applaud the Chairman for holding this hearing. I thank the 
witnesses for attending and for their thoughtful testimony, and 
I yield back the balance of my time.
    Mr. Sensenbrenner. The Chair recognizes the gentleman from 
Virginia, Mr. Scott, for an opening statement.
    Mr. Scott. Thank you, Mr. Chairman. Today we meet to 
discuss the Geolocational Privacy and Surveillance Act, a bill 
intended to clarify the standards of government access to 
certain types of personal location information. With greater 
conveniences that technology affords us, we also have new 
challenges to our privacy rights because of the types of 
information that is generated about us, how it is stored and by 
whom it can be accessed.
    The Supreme Court's 1967 decision, Katz v. The United 
States continues to direct our privacy jurisprudence. In that 
case, a man calls from a pay phone booth, were recorded by 
device attached to the outside of the booth by the FBI. The 
court ruled that this eavesdropping was a search under the 
Fourth Amendment because it violated a man's reasonable 
expectation of privacy. That standard should continue to guide 
us today.
    When you see something, when we go somewhere in public, you 
know that we may be seen by others, even if we do not want 
others to know where we are. The visual recognition by others 
is the risk that we take. What do not expect is a carrying of 
personal communication devices such as cell phones will be used 
by the government to track and record our every move. This is 
particularly the case of cell phone-based location information 
has become, in many cases, available and actually more accurate 
than GPS because of the proliferation of micro cells.
    We have laws to make accommodations between privacy rights 
and sometimes urgent need of law enforcement to investigate 
crimes. For example, Congress has drafted several statutes to 
restrict government access to the content of an electronic 
communication, but provides less stringent standards for 
accessing non content records, merely reflecting that a 
communication took place. The Electronic Communications Privacy 
Act was enacted in 1986, but it did not contemplate every 
possible technological advance and it does not provide clear 
guidance as to what steps the government must take in order to 
obtain location data from devices like cell phones and 
navigation systems in cars.
    This bill addresses this gap by requiring the government to 
show probable cause and get a warrant in order to obtain a 
historical and prospective data about the location of our 
citizens. The bill includes an exception for emergency 
situations. Given our expectations of privacy, this bill should 
be a good starting point for our discussion on this issue. So I 
thank the gentleman from Utah for his work on the issue. And 
Mr. Chairman, I yield back the balance of my time.
    Mr. Sensenbrenner. Without objection, all Members' opening 
statements will be put in the record at this point. It is now 
my pleasure to introduce today's witnesses. John Ramsey is 
currently one of the national vice presidents of the Federal 
Law Enforcement Officers Association. And I right in calling it 
FLEOA?
    Mr. Ramsey. Yes, sir.
    Mr. Sensenbrenner. Okay. Mr. Ramsey was elected to this 
position in November of 2008, and serves as one of the ten 
elected board members representing 26,000 Federal law 
enforcement officers from nearly every Federal law enforcement 
agency.
    Mr. Ramsey also a member of FLEOA'S national legal 
committee and serves as the national legal liaison director and 
chapter president for Mississippi. Mr. Ramsey is employed by 
the U.S. Department of Veterans Affairs Office of Inspector 
General in Jackson, Mississippi as the resident agent in 
charge. He has been with the VA OIG since 2000. He received a 
bachelor of science in criminal justice from Georgia State 
University and his Master's from George Washington University 
in forensics and criminology.
    Mr. Joseph Cassilly is active with the Maryland State 
Attorneys Association having held several offices including two 
terms as president of the Association. He is the past president 
of the National District Attorney's Association and is on the 
board of directors of NDAA. He was sworn in as assistant 
State's Attorney in October 1977, and in 1982, he was elected 
State's Attorney for Harford County, Maryland and has been 
reelected six times. He joined the U.S. Army in 19 and served 
with F company 75th Rangers, 25th infantry division. He was 
awarded a combat infantry badge, Purple Heart and Army 
commendation medal. He received a Bachelor of arts in 
psychology from University of Arizona in 1974, and his JD from 
the University of Baltimore Law School in 1977.
    Edward Black has been president and CEO of the Computer and 
Communications Industry Association since 1995. He previously 
served for nearly a decade as CCIA's vice president and general 
counsel. He is past chairman of the State Department's Advisory 
Committee on International Communications and Information 
Policy and past president of the Washington International Trade 
Association and Foundation and chairman of the Pro Trade Group. 
He serves on the board of directors of the interoperability 
clearinghouse.
    After serving as legislative director for Representative 
Louis Stokes in the early 1970's, Mr. Black served as 
congressional liaison for the State Department. He then served 
as chief of staff to Representative John LaFalce of New York 
before again returning to the executive branch as Deputy to the 
Assistant Secretary for Congressional affairs for the Secretary 
of Commerce. He subsequently practiced law in the private 
sector. He received his Bachelor of Arts degree from Muhlenberg 
College and his JD degree from the American University 
Washington College of Law.
    Catherine Crump is a staff attorney with the ACLU, Speech 
Privacy and Technology Project. She is a non residential fellow 
at the Stanford Center for Internet and Security. Prior to 
joining the ACLU, she clerked for the Honorable M. Margaret 
McKeown of the U.S. Court of Appeals for the Ninth Circuit. She 
received her undergraduate degree from Stanford in 2000. Served 
as a Fulbright Fellow from 2000 to 2001, and received her JD 
degree from Stanford Law School in 2004.
    The witnesses' written statements will be entered into the 
record in their entirety. I ask you to summarize your testimony 
in 5 minutes or less. To help you stay within the time limit 
you have got the red, yellow and green lights in front of you. 
The Chair has a reputation for banging the gavel when the red 
light goes on, and I now recognize Mr. Ramsey.

 TESTIMONY OF JOHN R. RAMSEY, NATIONAL VICE PRESIDENT, FEDERAL 
              LAW ENFORCEMENT OFFICERS ASSOCIATION

    Mr. Ramsey. Thank you, Chairman Sensenbrenner, Ranking 
Member Scott and other distinguished Members of the Committee. 
Thank you for the opportunity to testify today. On behalf of 
the 26,000 members of FLEOA, I am voicing our concerns with 
this proposed bill. The proposed legislation will impact all 
Federal law enforcement. Geolocational surveillance is an 
invaluable tool to combat domestic and international crime and 
terrorism in addition to rendering aid in exigent 
circumstances. As the proposed legislation stands, 
geolocational information has been given an overly broad 
definition and application. As written one could easily 
interpret PIN registers, OnStar and even E-ZPasses as 
geolocational information.
    These are not witch hunts that law enforcement officers are 
involved in. Information obtained with these court orders 
provides law enforcement with historical data as well as 
possible location information which becomes important when 
determine weather the need rises to the level of a court order 
or a warrant.
    While conducting everyday ongoing criminal investigations, 
court orders issued to communication companies may provide law 
enforcement with geolocational information. This information 
can be critical when it comes to potentially unlocking evidence 
that may lead to the apprehension of a murderer or rapist, or 
even saving lives.
    If law enforcement wants to know the content of a target's 
conversation, the most protected type of communication, we know 
that current Federal law and supreme court rulings require the 
issuance of a warrant as in the case with government-owned 
locational devices and Title III intercepts. The difference in 
this situation is that the government does not own nor are they 
attaching the locational device to a person.
    Currently with a court order, law enforcement may request 
the possible location of a cellular device from a communication 
company via their cell tower or cell site information, which 
enables law enforcement to potentially infer a general area 
where a particular call originated, not necessarily a precise 
location. Cell site information only gives an approximate 
location versus a precise or exact location like GPS devices. 
Cell phones are not government-owned locational beacons, the 
government did not attach the GPS device to someone's personal 
cell phone unlike government-owned GPS devices attached to 
vehicles.
    Seconds count when lives are at risk. Law enforcement 
should not be further hindered during their investigation of 
time sensitive cases that may involve the threat of serious 
bodily harm or death by imposing additional legal hurdles that 
may jeopardize the lives of countless innocent Americans. The 
Supreme Court did not extend Jones decision to cell phones, law 
enforcement is not seeking the content of conversations, nor 
are we trying to step on someone's expectation of privacy. We 
are simply looking at corporate records just like financial 
records to which a legally-authorized subpoena or court order 
would suffice.
    While our membership respects the constitutional rights of 
all citizens, we do not want to see the United States adopt 
unnecessary legislation. If our country's laws allow for the 
disclosure of corporate records pursuant to legally authorized 
court orders or subpoenas, the same standard should apply to 
all corporate records to include communication companies.
    Geolocation communication information should be treated no 
differently. We hope your Committee understands our concerns 
with the proposed legislation and respects our position. I 
would like to thank the Committee Members for your continued 
support of law enforcement and an opportunity to testify today.
    Mr. Sensenbrenner. Thank you.
    [The prepared statement of Mr. Ramsey follows:]
    Prepared Statement of John R. Ramsey, National Vice President, 
              Federal Law Enforcement Officers Association
    Chairman Sensenbrenner, Vice-Chairman Gohmert, and distinguished 
Members of the Committee:
    I would like to thank you for the opportunity to testify today. I 
appear before you today in my official capacity as the National Vice 
President of the Federal Law Enforcement Officers Association (FLEOA). 
On behalf of the 26,000 members of the FLEOA, I am voicing our concerns 
with H.R. 2168. The proposed legislation will impact all Federal law 
enforcement. Geolocational surveillance is an invaluable tool to combat 
domestic and international crime and terrorism, in addition to 
rendering aide in exigent circumstances, such as child exploitation 
cases.
    Geolocational communication services focuses on historical 
information and potential real-time information. This issue should not 
be confused with real-time conversations and/or Title III intercepts. 
However, as the proposed legislation stands, geolocational information 
has been given an overly broad definition and application. As written, 
one could easily interpret pen registers, On-Star, and EZ-Passes as 
``geolocational information.'' What we are focused on in this situation 
is wireless communication information currently obtained through a 
court order signed by a United States Judge. These are not witch hunts 
as some may allude to. Information obtained with these court orders 
provides law enforcement with historical data, as well as possible 
location information, which becomes important when determining whether 
the need rises to the level of a court order or a warrant.
    While conducting everyday on-going criminal investigations, court 
orders issued to communication companies may provide law enforcement 
with geolocation information. This information can be critical when it 
comes to potentially unlocking the evidence that may lead to the 
apprehension of a murderer or rapist. If law enforcement wants to know 
the ``content'' of a target's conversation, the most protected type of 
communication, we know that current Federal law and Supreme Court 
rulings require the issuance of a warrant, as in the case with 
Government-owned location devices and Title III intercepts. The 
difference in this situation is that the Government does not own nor 
are they attaching the locational device to a person. With the current 
exceptions built into the proposed legislation, at least law 
enforcement has some leeway with regards to abductions and other 
exigent circumstances.
    In order to better understand the intricacies of this issue, we 
need to take a closer look at ``geolocational information,'' With a 
court order, law enforcement may have the opportunity at seeing who a 
killer or rapist called, in the past, by requesting historical data/
records from a communication company. With a court order, pen registers 
may provide law enforcement with phone numbers, including the area 
codes, which may identify where a call was placed from, such as a 
specific state and/or city, similar to cell-tower information. With a 
court order, law enforcement may be able to see where the killer or 
rapist bought gas or used an ATM, by requesting historical information 
from a financial institution. Currently, with a court order, law 
enforcement may request the possible location of a cellular device from 
a communication company via cell-tower or cell-site information, which 
enables law enforcement to potentially infer a general area where a 
particular call originated, not a precise location. Cell-site 
information only gives an approximate location at best, versus a 
precise or exact location like GPS devices. Cell phones are not 
Government-owned locational beacons. The Government did not attach a 
GPS device to someone's personal cellular phone, unlike Government-
owned GPS devices attached to vehicles. I would like to stress that all 
of these scenarios, information gathered does not contain the 
``content'' of a conversation.
    Law enforcement is permitted to gather information using court 
orders, a legal document or proclamation signed by a United States 
Judge in which the court orders a person to perform a specific act, or 
in some circumstances, prohibits them from performing a specific act. 
What is the next step? Are we going to do away with grand jury 
subpoenas and move to the issuance of search warrants for companies to 
disclose corporate and financial records? Law enforcement can request a 
subpoena and obtain employment records, medical records, and other 
personal and private information of individuals that are targets of 
criminal investigations. Who are we protecting with this legislation? 
The innocent or the criminals? FLEOA takes the position that the 
innocent were and are not targets of criminal investigations. FLEOA is 
also not suggesting that criminals, or those suspected of criminal 
wrong doing, have less constitutional rights than a law abiding 
citizen. But do we really want to slow down the apprehension of 
murderers and rapists so they can build their trophy wall by increasing 
the amount of legal documents necessary to gather information? Law 
enforcement should not be further hindered during their investigation 
of time sensitive cases that involve the threat of serious bodily harm 
or death by imposing additional legal hurdles may very well jeopardize 
the lives of countless innocent Americans.
    This legislation is a pale attempt to build on the 2012 Jones 
decision rendered by the U.S. Supreme Court. The Supreme Court did not 
extend the Jones decision to cellular phones. Law enforcement is not 
seeking the ``content'' of a conversation, nor are we trying to step on 
someone's expectation of privacy. We are simply looking at corporate 
records, just like financial records, to which a legally authorized 
subpoena or court order will suffice. When a person places a phone 
call, the ``content'' of the call is protected, not the parking lot, 
sidewalk or location from which it was placed. The proposed legislation 
would, under Rule 41 of the Federal Rules of Criminal Procedure, make 
``content'' and ``geolocational information,'' such as cell-site and 
EZ-Pass, rise to the same standard. FLEOA would opine that these two 
types of information do not enjoy the same level of expectation of 
privacy.
    While our membership respects the constitutional rights of all 
citizens, we do not want to see the United States adopt unnecessary 
legislation. If our country's laws allow for the disclosure of 
corporate records pursuant to legally authorized court orders or 
subpoenas, the same standard should apply to all corporate records, to 
include communication companies. Geolocation communication information/
records should be treated no differently. We hope your committee 
understands FLEOA's concern with the proposed legislation and respects 
our position.
    I would like to thank the Committee Members for your continued 
support of law enforcement and its mission and for this opportunity to 
testify today. I will be happy to answer any questions that you may 
have at this time.
                               __________

    Mr. Sensenbrenner. Mr. Cassilly.

   TESTIMONY OF JOSEPH I. CASSILLY, PAST-PRESIDENT, NATIONAL 
                 DISTRICT ATTORNEYS ASSOCIATION

    Mr. Cassilly. Thank you, Chairman Sensenbrenner Ranking 
Member Scott, Members of the Committee. The National District 
Attorney's Association is the oldest and largest organization 
representing State and local prosecutors in the United States.
    Obtaining geolocation information is not a search, but even 
if it were a search, obtaining a warrant is not required for a 
lawful search when the circumstances of getting the warrant 
would be unreasonable or frustrate the lawful purposes of the 
government. Thus, there are legal searches that are recognized 
by the court that do not require probable cause. NDAA has 
serious concerns that H.R. 2168 would unreasonably frustrate 
State or local law enforcement's ability to effectively protect 
the citizens we serve.
    NDAA believes it is necessary to distinguish between 
historical data compiled from cell tower hits and real-time GPS 
ping information. The overwhelming majority request for 
geolocation data in my jurisdiction are for historical data. 
These requests are often made to confirm or rebut information 
which does not meet the probable cause standard. For example, 
in a gang shooting in my jurisdiction, an anonymous caller who 
states they fear gang retaliation gives the police the identity 
of two gang members who committed the murder; the police get 
information about the suspects' cell phones from prior arrest 
reports. The cell site historical information for the time of 
the killing shows that those two cell phones were hitting off 
the same tower at the same time in the area of the murder. Even 
without this information, the police do not have probable cause 
to arrest, but they have at least allowed the ability to focus 
their investigation.
    Gangs are domestic terrorists. Denying law enforcement the 
ability to use this critical tool is to decide to refuse to 
protect those communities. Section 2602(d) of the law, 
exception for consent, allows for a parent or guardian to 
consent to a child's device location, but is silent as to 
whether such consent is available with those with mental 
handicaps, developmental disability, dementia or who may be on 
medication. And further, if a child is reported missing by 
their peers but the parents can not be located, do the police 
waste precious seconds hunting for the parents or use those 
seconds to hunt for the child?
    The bill is confusing, 2602(f), exception for emergency 
information, has a different standard for law enforcement 
officer to access information when--than does 2604 emergency 
situation exception, including the fact that one requires a 
subsequent order while the other does not. The emergency 
exceptions are vague on what information can be legally 
obtained.
    Do these exceptions allow, for example, in a kidnapping 
case for law enforcement attract the kidnappers' phone or only 
the victim's phone? It is important to note that the ability to 
gather GPS information lasts only so long as the battery 
continues to power the device. Any unreasonable delay may 
result in a bad dead battery and frustrate the effort to use 
geolocation.
    Given that the proposed law subjects electronic 
communication service providers to possible criminal and civil 
liability if they cooperate with an officer, the laws should 
provide a course of action that would enable rapid transfer 
when needed, and possibility penalties for service providers 
who are intentionally slow to respond in providing critical law 
enforcement information.
    State statutes and court rules impose additional burdens on 
the use of warrants that may be unintended or unforeseen by 
this Committee. For example, in Maryland, law enforcement 
officers are required to deliver a copy of the warrants to the 
person being searched at the execution of the warrant. Is the 
person being searched the person carrying the phone? If so, we 
would have to locate them before we locate them in order to 
serve the warrant and give them the opportunity to turn off the 
device and flee.
    Maryland law enforcement are also required to deliver the 
statement of probable cause to the person searched at least 60 
days after the warrant is issued. Generally these warrants are 
used at the end of an investigation, but often this information 
is needed at the beginning of the investigation.
    These are some examples of the unintended consequences from 
only one State, and imagine them compounded them in 50 States. 
We assert that this legislation is a solution in search of a 
problem, and is the true defenders of the public freedoms and 
rights, America's prosecutors believe that the current system 
of police discretion and judicial oversight is working. For if 
it were not, the evidence would be found in court cases 
challenging the conduct of the police.
    Thank you for the opportunity to testify before the 
Committee on this important legislation.
    Mr. Sensenbrenner. Thank you.
    [The prepared statement of Mr. Cassilly follows:]
    
    
    
    
    
    
    
    
    
    
    
    
    
    


                               __________
    Mr. Sensenbrenner. Mr. Black.

  TESTIMONY OF EDWARD J. BLACK, PRESIDENT AND CEO, COMPUTER & 
              COMMUNICATIONS INDUSTRY ASSOCIATION

    Mr. Black. Mr. Chairman, Members of the Committee, thank 
you for the opportunity to testify today on the GPS Act. CCIA 
is an international trade association dedicated to innovation 
and dynamic open competition with members in many technology 
sectors. Our members employ half a million workers with annual 
revenues of a quarter of a trillion dollars. CCIA is also a 
founding member of the Digital Due Process coalition formed to 
update ECPA.
    The GPS Act addresses one key coalition recommendation for 
updating ECPA. Extending Fourth Amendment protections to 
reflect the realities of the digital age is an important goal 
for our industry. Regardless of motivation, the new found--the 
recent Supreme Court decision in Jones called into question 
whether pervasive new technology received Fourth Amendment 
protection. Jones did not reach the question of protection for 
personal location information generated by mobile devices. 
Despite unanimous discomfort among the judges over warrantless 
tracking of individuals, Jones failed to include devices owned 
by over 95 percent of the U.S. population. Thus, authorities 
may now choose to replace physical tracking devices with 
pervasive and unchecked monitoring of our whereabouts via 
either private cell phone networks or GPS information built 
into our phones.
    Representative Goodlatte and Chaffetz's GPS Act is an 
important step toward closing the 21st century loophole in 
ECPA. Requiring probable cause to justify intrusive 
surveillance may make the life of law enforcement agents 
slightly more difficult, but that was the explicit purpose of 
our Founders when they expressly limited the government's 
powers under the Fourth Amendment.
    Mobile technologies are transforming and benefiting our 
economy. The mobile industry contributed 195 billion to our 
GDP, and 3.8 million jobs in 2011 alone. Trust is essential to 
this dynamic part of our economy, particularly where data is 
concerned, this is why the GPS Act is so vital.
    Your location privacy says a great deal about you. It says 
where you work and sleep, your religious preferences, doctor 
visits and political affiliations. All are personal information 
with a legitimate claim to privacy. Current warrant protection 
against location information does not clearly apply to all GPS 
or cell site information. There is uncertainty in the business 
community about what the law is, for each type of data and what 
privacy assurances can be made to users. This uncertainty 
itself hampers innovation and the growth of companies and the 
Internet platform and cloud services sectors.
    Problems of trust are exacerbated because there is rarely 
consent from the cell phone user when the government demands 
information from companies. In this nascent marketplace, we 
need a clarifying law requiring a warrant before law 
enforcement may demand personal location information from the 
electronic service providers. The GPS Act creates a uniform 
warrant standard for government demands of location data. It 
gives assurances to all users that the location information 
will be reasonably protected under the law. This is vitally 
important as many new applications such as Yelp and Four Square 
incorporate real-time user information. This bill does not make 
this information off limits to government entities which would 
simply need to obtain a warrant, justas it must be done to 
access many other types of evidence under law and the 
Constitution.
    This bill also recognizes that there are circumstances in 
which obtaining a warrant may be too time consuming or 
inappropriate. This bill would not keep law enforcement from 
doing its job.
    In summary, we believe that the changes made by the GPS Act 
are vital to the privacy and civil liberties of Americans, and 
for the positive effects it would have on an exciting and 
booming sector of our economy. Thank you for the opportunity to 
testify today. I look forward to your questions.
    Mr. Sensenbrenner. Thank you, Mr. Black.
    [The prepared statement of Mr. Black follows:]
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    

                               __________
    Mr. Sensenbrenner. Ms. Crump.

 TESTIMONY OF CATHERINE CRUMP, STAFF ATTORNEY, AMERICAN CIVIL 
                     LIBERTIES UNION (ACLU)

    Ms. Crump. Good morning, Chairman Sensenbrenner, Ranking 
Member Scott, and Members of the Subcommittee. Thank you for 
the opportunity to testify on behalf of the American Civil 
Liberties Union. The ACLU supports passage of H.R. 2168, the 
Geolocational Privacy and Surveillance Act. Requiring law 
enforcement agents to obtain a warrant based upon probable 
cause before obtaining geolocational information would allow 
legitimate law enforcement investigations to proceed, while 
ensuring that innocent Americans do not have their privacy 
intruded upon.
    As Congressman Chaffetz has already pointed out, passing 
the GPS Act would fulfill Congress's duty to ensure that the 
safeguards provided by the Fourth Amendment of our Constitution 
are respected.
    Geolocational information implicates strong privacy 
interest because tracking people's movements makes it possible 
to learn a great deal of personal and private information about 
them. As Justice Alito explained, society's expectation has 
been that law enforcement agents and others would not and 
indeed in the name simply could not secretly monitor and 
catalogue every single movement of an individual's car for a 
very long period.
    The D.C. Circuit Court of Appeals expanded upon this point. 
A person who knows all of another's movements can deduce 
whether he is a weekly churchgoer, a heavy drinker, a regular 
at the gym, an unfaithful husband, an outpatient receiving 
medical treatment, an associate of particular individuals or 
groups and not just one such facts, but all such facts.
    Attaching a GPS device to a vehicle is one way of obtaining 
location information. In the recent Supreme Court case United 
States v. Jones, the police tracked a defendant's movement 
continuously for 28 days with an accuracy of 50 to 100 feet. 
While some cell phones can also be tracked using GPS, all cell 
phone generate a continuous stream of location information 
because they register their location with cell phone networks 
several times a minute. Due to the proliferation of cell phone 
towers and advances in technology, it is the case that, as 
Professor Matt Blaze has pointed out to Congress in previous 
testimony and again today, it is becoming increasingly precise, 
and in some cases, cell site information is approaching the 
precision of GPS.
    While the Supreme Court held in Jones that affixing a GPS 
device to monitor the movements of a car implicates the Fourth 
Amendment, it did not reach the question of whether that is a 
search that requires a warrant based upon probable cause. It 
will likely take years for this question to reach the Supreme 
Court once again. Congress should not stand by while law 
enforcement faces unclear standards for geolocation tracking 
and innocent Americans' privacy is invaded.
    The warrant and probable cause requirement are essential 
components of the Fourth Amendment. The probable cause 
requirement is not high. Law enforcement merely has to have a 
good reason to believe that a search will turn up evidence of 
wrongdoing. These requirements are especially important today 
given the tremendous technological developments of the past 10 
years. Moreover, major telecommunication companies and Internet 
companies support a warrant and probable cause requirement.
    Last August in an unprecedented effort to penetrate the 
secrecy surrounding cell phone tracking, 35 ACLU affiliates in 
32 States filed over 380 Public Records Act requests to 
understand the policies procedures and practices of local law 
enforcement agencies for tracking cell phones. What we learned 
was disturbing. While over 200 of the agencies--while virtually 
all of the 200 agencies that responded indicated that they 
track cell phones, only a tiny handful indicated they had 
obtained warrants to do so. And many only comply with a lesser 
standard, such as a subpoena. The law governing location 
tracking policy should be clear, uniform, and protective of 
privacy, but unfortunately it is in a state of chaos with 
agencies in different towns following different rules, and in 
some cases, no clear rules at all.
    The ACLU supports passage of the GPS Act because it would 
ensure that law enforcement agents obtain a warrant based upon 
probable cause in order to track--obtain geolocational 
information. The Act also includes perfectly reasonable and 
limited exceptions. Under the Act, for example, the police 
would be able to obtain location information when they had a 
good reason to believe that it would turn up evidence of 
wrongdoing, or where they have a good faith to believe that 
someone's life or safety was in jeopardy.
    We urge the Committee to support H.R. 2168 and report it 
favorably from the Committee. Thank you.
    [The prepared statement of Ms. Crump follows:]
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    


                               __________
    Mr. Sensenbrenner. Thank you very much, and I want to thank 
all of the witnesses for making their statements within the 
time limit, that is not what usually happens around here. The 
Chair will defer asking questions and will begin by recognizing 
the author of this bill, the gentleman from Utah, Mr. Chaffetz.
    Mr. Chaffetz. I thank you Mr. Chairman. And thank you to 
all the witnesses, I appreciate your perspective and the 
passion you bring behind those perspectives. I find it 
fascinating that there are now more wireless accounts in this 
country than there are people in this country. To say that the 
technology is not pervasive would be inaccurate, it is very 
pervasive and can be helpful in many ways, but it can also be 
confusing as we try to find and test the limits of where 
privacy starts, where it ends, and what law enforcement can do 
about this.
    I also want to note, this bill is not intended to be solely 
focused on just law enforcement. What I am also worried about 
is somebody tracking and following somebody else in a 
surreptitious manner. The idea that somebody could take a 
spurned lover and put a GPS device or figure out how to track 
that person surreptitiously needs clarification of law. So this 
bill is not just about law enforcement, that has been the 
discussion thus far, but it is also about how do we as 
individuals track and follow other individuals without our own 
permission, and I want to make that clear.
    I also want to highlight a comment, actually, from Jason 
Weinstein, a Department of Justice deputy assistant Attorney 
General who was called on Congress to clarify a law in this 
area, ``There really is no fairness when the law applies 
differently to different people depending on which courtroom 
you are standing in.''
    In addition, the top FBI lawyer, Andrew Weissmann, has 
stated, ``FBI agents in the field need clear rules.'' And it is 
telling agents who are in doubt, ``Obtain a warrant to protect 
your investigation.'' I know through the work of the ACLU that 
the police in Lincoln, Nebraska obtained GPS location data on 
telephones without demonstrating probable cause, but in close 
proximity in Wichita, Kansas, they do demonstrate probable 
cause in order to obtain this information. And my understanding 
is since at least since 2007, the Department of Justice has 
recommended that U.S. attorneys obtain a warrant based on 
probable cause prior to engaging in these forms of cell phone 
tracking.
    I guess my initial question here, and I also highlight a 
quote I used earlier from Justice Alito who was quoted as 
saying a legislative body is well-situated to gauge changing of 
public attitudes, to draw detailed lines and to balance privacy 
and public safety in a comprehensive way. I don't believe we 
can just leave this to the court and hope that 5 years from 
now, something percolates up to the top of the food chain.
    I think that Congress has a proactive responsibility, and I 
am pleasantly surprised by the support we have from industry, 
they don't want people to be afraid of their mobile phones and 
they don't want people to be afraid of their automobiles and 
whatnot.
    My question, first, to Mr. Ramsey here, you would have to 
agree, don't you, that there is great inconsistency and 
confusion, not only in light of just the Jones case, but from 
law enforcement agencies, from prosecutors, where are the 
lines? Doesn't this need clarification one way or the other?
    Mr. Ramsey. FLEOA would agree that there does need to be 
clarification, but we feel that the way it is written is overly 
broad and we need to narrow that focus down to where it doesn't 
hinder law enforcement. As you said, this bill isn't targeting 
law enforcement; however, there are parts of it that might, for 
example, prevent apprehension of suspects.
    Mr. Chaffetz. Understood, and I appreciate it. The point I 
guess I am trying to make, the need for legislation to move on 
this. Mr. Cassilly, would you agree with that? You actually, in 
your testimony, argued that the court should deal with this and 
that Congress shouldn't do.
    Mr. Cassilly. No, I didn't say that. What I said was that 
you can't show any evidence from court cases out there that 
seems to indicate a pervasive abuse by law enforcement of this 
ability. I think there are a couple of concerns. First of all, 
I think probable cause is a high standard, okay? My real case--
--
    Mr. Chaffetz. My time is so short, I am already on to the 
yellow light here. There is a need to be consistent, you would 
agree with that? And would you also agree that there is great 
inconsistency? Even between Lincoln, Nebraska and Wichita, 
Kansas, between different courts and between what the FBI is 
saying, and what the Department of Justice is saying, there is 
great uncertainty and there is not a point of clarification 
thus far, correct?
    Mr. Cassilly. I agree that we need to come up with some 
general uniform rules, just in order to help the industry be 
able to respond and know whether----
    Mr. Chaffetz. But you don't think law enforcement and the 
prosecutors and the courts needs some clarification as well? 
This is a 9-to-nothing case in the Jones case.
    Mr. Cassilly. I think we do, but I don't think we need to 
go as far as this bill goes. I think this bill would seriously 
prevent us from lawfully acquiring----
    Mr. Chaffetz. So you may disagree with the standard, but 
you would agree that there is a need for a standard, correct?
    Mr. Cassilly. Yes.
    Mr. Chaffetz. With that, I yield back, Mr. Chairman.
    Mr. Sensenbrenner. The witness should answer the question. 
Do you agree there should be a standard?
    Mr. Cassilly. I think there should be a standard. I don't 
think that the probable cause standard as set out in this bill 
is appropriate. There was a hypothetical, the actual case I 
gave you regarding the gang shooting, and the information we 
got in the gang shooting, that doesn't rise to probable cause 
standard. That is an anonymous informant, which everybody who 
deals with probable cause will know that that is not enough to 
allow us to proceed to get a warrant with an anonymous, 
untested informant. But it would be enough to allow us to 
establish a reasonable basis under other court decisions to 
request that sort of information.
    Mr. Sensenbrenner. Thank you. The gentleman from Virginia, 
Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman. Mr. Black, if the 
police had five unsolved rapes using what essentially looks 
like the same MO, and wanted cell phone information to 
ascertain if one cell phone had been at each of the sites at 
the appropriate time, would that be something that would be--
should be allowed? And follow up on that, if there is a robbery 
on Times Square on New Year's Eve, would getting the cell phone 
information from everyone on Times Square that night also be 
available, or is there a difference?
    Mr. Black. Maybe I will start with the second provision, I 
think that identifies the fact that when we are asking for 
information, location information, we are not asking a question 
of who is not there, we are asking a question where are people. 
So you are finding out a lot of information which, in some 
cases, is considered very private by the person who is being 
the subject of inquiry. And we do feel that a probable cause 
standard is not that high a standard, but it is an important--
it a standard higher enough to protect some vital privacy 
rights.
    In any specific example we can come up with, we would like 
the exceptions, scrutinized and I think worked with.
    Mr. Scott. In the case of five different sites, five 
different times, is that targeted enough to satisfy probable 
cause?
    Mr. Black. If there is a robbery in Time Square in a 
certain time frame, and you want to find everyone who was in 
Times Square at that point, I guess I would probably have some 
problem with that.
    Mr. Scott. What about the five different rapes, five 
different times where it is unlikely that any more than one 
person would satisfy that search?
    Mr. Black. I think there are adequate tools. I do not think 
that the information of that--that sounds pretty persuasive to 
me. We have legal precedents and maybe some other who has spent 
some time in criminal law. I think there will always be 
borderline cases. By and large, I really think the vast 
majority of law enforcement needs are not super time sensitive 
and can be met by a probable cause standard. What you are 
suggesting is a state of facts that make it pretty logical to 
want to get that information. To me, that gets close to 
probable cause.
    Mr. Scott. Okay. Ms. Crump, should it make a difference 
whether or not the device is attached or the search is done 
without a physical attachment, say, to a car? Should that make 
a difference?
    Ms. Crump. Thank you for the question. No, I don't believe 
that should make a difference. I think the Supreme Court 
decision, Justice Alito stated it well when he pinpointed the 
intrusion that occurs through tracking is the monitoring of 
someone's movements, particularly over an extended period of 
time. You can accomplish that by attaching a GPS device to 
someone's car, but you can obtain the same type of intimate 
private information by tracking someone through their cell 
phone. And because the relevant factor is a degree of privacy 
invasion, the physical attachment of the device is not the 
operative thing here.
    Mr. Scott. Now people have used the term ``warrant with 
probable cause.'' Is there such a thing as a ``warrant without 
probable cause''?
    Ms. Crump. Not generally, no.
    Mr. Scott. Okay. Should--if you have a warrant, should the 
person being surveilled be notified the same way they are 
notified in any other warrant?
    Ms. Crump. I think it depends on the context. In general, 
there are exception for notification when warrants are served. 
So for example, if it would interfere with an ongoing law 
enforcement investigation. I think that one could certainly 
make an argument that if you were tracking someone for the 
purposes of a criminal investigation and notifying them of the 
tracking would interfere with that investigation, that there is 
a strong argument to be made that as in, for example, Historic 
Communications Act, there would be a good reason to have a 
provision that upon a good cause showing you would be exempt of 
that requirement. I think you can accommodate the privacy 
interest here while also making reasonable accommodations such 
as that for compelling law enforcement interests.
    Mr. Scott. Does the bill have an exemption for searches 
done under FISA?
    Ms. Crump. Yes, the bill has that exemption which would 
allow for important national security investigations to go 
forward. That is one a number of reasonable and limited 
exemptions including for consent, for monitoring minor children 
when their parents wish it to be done, and for various 
emergency circumstances, such as, for example, when someone is 
in danger of their life or serious bodily harm.
    Mr. Sensenbrenner. The other gentleman from Virginia, Mr. 
Goodlatte.
    Mr. Goodlatte. Thank you, Mr. Chairman. I very much 
appreciate your holding this hearing on legislation and this 
important evolving technology. And I want to thank and commend 
the gentleman from Utah, Mr. Chaffetz, for introducing the 
legislation which I am pleased to cosponsor.
    I would like to start by asking all for of you, and I will 
start with the representatives of law enforcement first. In 
examining practices of State and local law enforcement, what 
has the experience been in those jurisdictions which require a 
probable cause warrant standard for the attachment of these 
devices? 
    Mr. Ramsey. I would probably have to defer to Mr. Cassilly 
here on the State and local law enforcement aspect of that 
nature.
    Mr. Cassilly. I am sorry, Congressman, I can't answer that 
because I am not aware of--other than until I heard about 
Wichita, I am not aware of a jurisdiction that did--does 
require probable cause for access. Most of the jurisdictions 
that I am aware of use a reasonable basis standard.
    Mr. Goodlatte. Mr. Black or Ms. Crump.
    Mr. Black. Well, we don't collect that information on law 
enforcement, but I can tell you that a warrant clearly provides 
a clear message that a private sector company can feel much 
more confident responding to without running the risk of 
violating their customers' rights. It is a clear legal standard 
that response to that warrant has been established. I think it 
provides a level of protection to the private sector as well as 
for the customer and citizen.
    Mr. Goodlatte. Ms. Crump, maybe you know of some 
jurisdictions that impose that standard?
    Ms. Crump. Thank you for the question. When we conducted 
our 35--our 32-State survey, we uncovered a small number of 
jurisdictions that do require a warrant based on probable cause 
to track even cell phones. So, for example, the County of 
Hawaii, Wichita and Lexington, Kentucky all reported to us that 
they require a warrant based on probable cause. I do not 
believe that those jurisdictions would willfully put their 
citizens in danger in order to impose this requirement. I think 
it is a more reasonable conclusion to believe that they can 
accommodate legitimate law enforcement interests while also 
accommodating the warrant requirement, and that is a reason the 
requirement set out in the GPS Act are reasonable ones.
    Mr. Goodlatte. Although the court concluded that the 
government's action in Jones was a search, none expressly 
required that police get a warrant in future GPS tracking 
cases. The government effectively forfeited that argument. 
Further, there is no clear indication of the level of 
suspicion, probable cause, reasonable suspicion or something 
less that is required to attach a GPS unit and monitor the 
target's movement.
    So let me ask you each of you what level of suspicion, 
probable cause, reasonable suspicion or something less should 
be required to attach a GPS unit and monitor a target's 
movements or monitor a target via a cell phone. We will start 
with you, Mr. Ramsey.
    Mr. Ramsey. The way I understand the question is you are 
asking for at what level?
    Mr. Goodlatte. Finish the work the court, they punt it over 
to us and help us find the best way to set a standard that 
protects the privacy rights of individuals and particular 
innocent citizens. Our bill, as you know, requires probable 
cause as a standard, but if you are troubled by that, make a 
case for another standard.
    Mr. Ramsey. A lot of times these geolocational devices are 
used as building evidence, it is the building blocks in some of 
these investigations, working up to a probable cause warrant 
for an arrest of an individual. So if you start at the building 
block level, you are actually near the reasonable suspicion 
level.
    Mr. Goodlatte. I am running out of time so I am going to 
jump over to Ms. Crump, too, and if we have time, we will come 
back to Mr. Cassilly.
    Ms. Crump. In our view the reasonable suspicion requirement 
is too low. The warrant requirement--the probable cause 
requirement is the basic default of under our constitutional 
system when there is a search. Law enforcement often mentions 
that it would be useful to track GPS and develop probable 
cause. However, there are a wide range of useful law 
enforcement techniques that law enforcement is not allowed to 
conduct without probable cause because they are simply too 
invasive. It would surely be useful for law enforcement agents 
to be able to search someone's phone without having to get a 
warrant. But we don't allow that under our system because we 
recognize that that is a grave intrusion.
    When you talk about the type of information that is 
available through GPS tracking, for instance, being able to 
tell where someone gets medical treatment or whether they are 
an unfaithful husband, or who their friends and associates are. 
That is similarly sensitive and should be similarly protected.
    Mr. Goodlatte. Thank you, Mr. Chairman.
    Mr. Sensenbrenner. The gentleman's time has expired. The 
gentleman from Colorado, Mr. Polis.
    Mr. Polis. Thank you for holding this hearing, Mr. 
Chairman. I was considering joining as cosponsor of this bill, 
and based on what I am hearing today, I plan on doing so after 
this hearing. It has been very informative and appreciate it.
    One question I had, and am not sure who can help me on the 
panel is how the process works with regard to identity list 
suspects, or John Does or people that, of course, and I would 
think if somebody is a serious criminal, they would have no 
identity attached to their cell phone, it would simply be an 
anonymous cell phone. Is there a procedure under law 
enforcement, and perhaps Mr. Cassilly or Mr. Ramsey would know 
that allows for a warrant for a John Doe in terms of following 
them on GPS or tracking their cell phone.
    Mr. Cassilly. Often we do get phone numbers. For example, 
if a victim called and lured to a specific location and the 
victim has the suspect's phone number on their phone, we would 
do a petition check. We use court order, so we would do a 
petition for a court order, and cite the cell phone, the 
number, information on that specific number.
    Mr. Polis. This bill would not impact that process; is that 
correct?
    Mr. Cassilly. It would if it requires a probable cause 
warrant.
    Mr. Polis. Well, it would insofar as it does it the same 
way if you have their identity, but it doesn't do it 
separately. There would still be a way of doing it based on the 
cell phone number with probable cause.
    I tend to agree with what Ms. Crump said, if you are 
talking about somebody's home, somebody's private conversations 
and where they are, these are very intimate matters and deserve 
all of our privacy protections. And obviously, we are focusing 
a lot on the violation of privacy for criminal investigation 
side, but I want to open this up a little bit about some of the 
positive applications from a consumer perspective with regard 
to GPS, and some of the potential lifesaving technologies. And 
I want to ask Mr. Black whether he thinks this bill will in any 
way stand in the way of lifesaving services or ambulances or 
other fire-reduction services that are going after people who 
are on cell phones and have GPS. Does this interfere with some 
of the positive side of this at all?
    Mr. Black. Thank you for the question. I think, to the 
extent that lifesaving situations involve maybe law enforcement 
as well, clearly the exceptions, I think, are sufficient to 
cover those circumstances. I would suggest that people value 
their privacy enough that there will be times if, in fact, easy 
access to their location information transpires, turning off 
your phone becomes a customer consumer reaction which we don't 
want. We don't want people feeling they don't want to be 
followed so they are going to start turning off their phones, 
and then get in an accident or critical situation and that is 
not available.
    So I think given a degree of security and trust that you 
will not be casually surveilled is actually helpful in making 
sure people use all the benefits of their cell phone, including 
their location identity information.
    Mr. Polis. So people would be more likely to keep their 
cell phones during potential emergency situations if they have 
privacy assurances there as well. And I assume many of the 
privacy specifics can be dealt with in user agreements with 
cell phone providers as well. Many people may choose to, in 
fact, allow for emergency purposes, their provider to know 
where they are, they might have some kind of biometric feedback 
if they need their heart rate monitored and ascribe to privacy 
to that. And again, I would think, in general, people are more 
likely to do these kinds of lifesaving activities if they are 
assured that this information will not be used for ulterior 
reasons or by ``the government'' or by anybody else. It would 
just be a private arrangement with their medical care provider.
    And again, there is tremendous promise of the biometric 
feedback of saving lives, whether it is simply monitoring 
insulin level or it is heart rate or a number of other 
conditions. And to the extent we can increase confidence in 
these by reassuring privacy, I think we can save lives through 
this law. So I plan on joining as a cosponsor and I thank the 
Chair for the hearing and I thank the witnesses for coming 
forward.
    Mr. Sensenbrenner. The gentleman's time has expired. The 
gentleman from South Carolina, Mr. Gowdy.
    Mr. Gowdy. Thank you, Mr. Chairman. Ms. Crump, it has been 
a while since I studied Constitutional law or search and 
seizure. What is the standard required for physical 
surveillance if law enforcement just wants to follow someone?
    Ms. Crump. The Supreme Court has set different standards 
for physical surveillance and electronic surveillance. Physical 
surveillance, the Supreme Court has not required a warrant 
based on probable cause to carry it out.
    Mr. Gowdy. That is what I thought. So you can follow 
someone in their car without meeting any standard of proof?
    Ms. Crump. That is right, and I think----
    Mr. Gowdy. What about air space surveillance?
    Ms. Crump. I think that is a similar rule. The line that 
Justice Alito----
    Mr. Gowdy. I am not going there yet, we are not there yet. 
I am just asking you about physical surveillance, both on land 
and air. And there is no probable cause requirement for either.
    Ms. Crump. That is certainly correct.
    Mr. Gowdy. What about grand jury subpoenas, what is the 
standard required to issue a grand jury subpoena?
    Ms. Crump. Generally it would be relevance.
    Mr. Gowdy. Right. So could a Federal prosecutor send a 
grand jury subpoena to a service provider and get their passive 
GPS historical GPS information?
    Ms. Crump. I don't believe so.
    Mr. Gowdy. Why not?
    Ms. Crump. Because of the current restrictions of the 
Historic Communications Act which already sets a standard for 
tracking location.
    Mr. Gowdy. So what would a prosecutor have to do to get 
that?
    Ms. Crump. To obtain cell site location information under 
the Historic Communications Act. Right now, prosecutors have to 
show that the information is relevant and material to an 
ongoing investigation.
    Mr. Gowdy. That is my point it is not probable cause, it is 
a relevance standard, so that is what I asked. Right?
    Ms. Crump. I misunderstood then.
    Mr. Gowdy. No, more likely, I misphrased my question. What 
about folks on probation, what is the standard, if any, for GPS 
monitoring of folks on probation?
    Ms. Crump. Probationers have generally been recognized have 
fewer Fourth Amendment rights.
    Mr. Gowdy. Right, because they have already been convicted. 
How about folks who are on bond and are still presumed 
innocent, what is the requirement for GPS tracking of folks on 
bond?
    Ms. Crump. It is similar.
    Mr. Gowdy. Similar in that it is not probable cause?
    Ms. Crump. That is right.
    Mr. Gowdy. All right. Orders of protection for women who 
have been battered and go to a court, and one of the conditions 
of the order of protection is GPS monitoring. What is the 
standard there?
    Ms. Crump. You have reached one actually that I am not 
particularly familiar with that area of law, so I am afraid I 
cannot answer.
    Mr. Gowdy. It is not probable cause.
    Mr. District Attorney, Jason Chaffetz and Chairman 
Goodlatte are two of the most reasonable people in Congress. 
Period, new paragraph.
    Mr. Sensenbrenner. Without objection, so ordered.
    Mr. Gowdy. My----
    Mr. Cassilly. Mr. Goodlatte left, he didn't hear that.
    Mr. Gowdy. Well, I am sure the transcript will reflect that 
I meant that with a lot of earnestness, because I did. I am 
biased toward law enforcement and prosecutors. So how can you 
get together with Mr. Goodlatte and Mr. Chaffetz and come up 
with something that meets their legitimate privacy in 
Constitutional privacy expectations and still doesn't hamper 
law enforcement's ability to investigate cases for which 
probable cause has not been developed yet?
    Mr. Cassilly. I would be very glad to do that. I still 
assert that a reasonable basis standard which is used, 
recognized by the United States Supreme Court and used 
throughout law enforcement for many, many decisions would be a 
proper protection.
    As far as protecting the industry from knowing whether or 
not the request is legitimate or not, using a court order 
without requiring that the court order be a warrant. Once you 
change the word ``court order'' to ``warrant,'' you complicate 
the situation because warrants require a lot of service and 
notice, as opposed to a court order, which is used for things 
like wiretaps and other types of electronic surveillance.
    Mr. Gowdy. But you are happy to sit down on behalf of 
District Attorneys and work with Mr. Chaffetz and Mr. 
Goodlatte?
    Mr. Cassilly. I would be happy to do that.
    Mr. Gowdy. Thank you, Mr. Chairman.
    Mr. Sensenbrenner. Gentleman's time expired. The 
gentlewoman from California, Ms. Chu.
    Ms. Chu. Thank you, Mr. Chair. Mr. Black, in your testimony 
you provided some very interesting statistics in regard to 
smartphone users; you said that only 6 percent of Americans use 
geolocation or apps, and that 70 percent of users are 
completely unaware that they exist. So I would like to ask you 
and Ms. Crump, some out there might argue that cell phone users 
voluntarily make their locations known because they carry a 
cell phone by choice. How would you respond to that statement?
    Mr. Black. I think certainly making it available to a 
particular user, or for a particular purpose, is not making it 
available to the world for all purposes and not making it 
available to all other third parties. So yet, people may, in 
fact, say I am willing to have this in order to have an entity 
communicate with me, but that does not mean I want to be 
followed everywhere and my location known by a variety of 
people who I do not choose to have given access to.
    Ms. Chu. Ms. Crump.
    Ms. Crump. I agree with everything Mr. Black just said. 
Today it is difficult to function in our society without having 
a cell phone. I think it is a mistake to equate a decision to 
carry a cell phone with a decision that you do not mind being 
tracked 24 hours a day, 7 days a week. I think that in our 
society, there is a lot of information we might, for example, 
choose to release to someone for a limited time, or for a 
limited purpose, but that does not mean we would want everyone 
to have access to the same information, or that we would feel 
comfortable being tracked by law enforcement. So I think there 
is a meaningful distinction between disclosing location 
information to a cell phone company and disclosing it to 
everyone.
    Ms. Chu. Thank you.
    And, Mr. Black, you also said that companies should treat 
geolocation information with the highest respect when it is 
gathered from users. How far could potential abuse go in terms 
of the private information obtained?
    And Ms. Crump, too.
    Ms. Crump. I am sorry, the question was how far could----
    Ms. Chu. How far--to what extent could private information 
be obtained? How far could it go?
    Ms. Crump. It could actually go quite far. We have much 
personal and sensitive information in the hands of third 
parties today simply by the way that our devices function. It 
is not simply that we store all of our location information 
with our cell phone companies; we store all of our emails with 
third-party companies such as Google.
    And so if we don't establish firm guidelines to indicate 
that our private information is still private, even in our 
increasingly digital and interconnected age, Americans will end 
up forfeiting rights that we have held dear for a long time.
    Mr. Black. I would agree. The fact is, modern digital 
technology has great benefits, but it does open up the 
potential for great access into people's private affairs.And 
that is what we are trying to do. We are trying to--the level 
of intrusion, unwarranted and unconsented intrusion into 
people's private affairs--their location, their sensitive data, 
a variety--is something that we need to guard against.
    I love my industry, I love our technology, and it does 
great things, but there is a potential dark side. And what we 
are trying to do is make sure that we have sufficient 
safeguards to make sure that the very fundamental, vital 
privacy protections are preserved.
    Ms. Chu. Well, in fact, you write that, by having location 
privacy access, that you could show not just where people work 
and sleep but also religious preferences, doctor visits, 
political affiliations.
    Mr. Black. Exactly. I mean, the amount--what you learn by 
being able to monitor precisely someone's location over a 
period of time can reveal all kinds of sensitive things. It is 
not just illegal behavior; it is all kinds of personal, private 
information--health care.
    I mean, not everyone can do it everyplace, but technology 
clearly exists. And I think Matt Blaze's testimony says, not 
only can you identify where they are in a building but what 
floor in a building, so what doctor offices, what specialty 
they are in.
    I mean, you are talking about a surveillance, monitoring 
capability which can be very detailed, very intrusive. And the 
longer you can do it, the more complete you do it, the more you 
can find out the most intimate facts about an individual.
    Ms. Chu. And is it possible that smartphone users might be 
hesitant to use their device because they fear that the 
government will invade their privacy?
    Mr. Black. I am sorry, I didn't hear the whole question.
    Ms. Chu. Well, you refer in your testimony to smartphone 
users not wanting to use their devices because of privacy 
invasions.
    Mr. Black. I am sorry, my hearing.
    Mr. Sensenbrenner. The witness will answer----
    Ms. Chu. Well, thank you.
    Mr. Sensenbrenner [continuing]. The question.
    Ms. Chu. I yield back.
    Mr. Sensenbrenner. Okay, she yields back.
    The gentleman from California, Mr. Lungren.
    Mr. Lungren. Thank you very much, Mr. Chairman.
    I am sorry I wasn't here for your formal presentations, but 
I will continue to look at this.
    Here is the dilemma I find. We have several generations of 
Americans who utilize devices today to tell everybody in the 
world who they are and what they are and, you know, Facebook 
and so forth, where they are revealing so much about themselves 
and, at the same time, they somehow have an expectation of 
privacy, even though they have given information to the very 
intimate thing called the Facebook. And sometimes it is 
difficult in conversation with folks to say, well, you have 
exposed all of this to the world, and now you have this 
expectation of privacy. And so we have almost different 
perspectives now on what the reasonable expectation of privacy 
is.
    As an elected official, I find my privacy invaded by 
something called trackers today. I mean, you walk out of a 
building here, and someone is in your face with a smartphone 
asking you a question equivalent to, ``When are you going to 
stop beating your wife?'', and if you don't answer it, it looks 
like you are running away from it. One of the great techniques 
people have figured out on that is to pull out their own cell 
phone and to start talking with their spouse.
    And so, as Mr. Gowdy was saying, what is required for law 
enforcement to have somebody follow somebody? And is there an 
essential difference between, you know, a human tracking and 
electronic tracking from a law enforcement standpoint, and how 
would you articulate that? And I would ask that to you, Ms. 
Crump.
    Because I am struggling with this. I am trying to figure 
out what would be reasonable. Having been on the law 
enforcement side, I understand the necessity of gathering 
information. And the general rule is, if it is somehow publicly 
available, you don't have that expectation of privacy.
    And so, how should we analyze this in terms of the--if I, 
in law enforcement, have an unlimited number of police 
officers, men and women, I could pretty well follow you. I 
can't go into the house, but I could wait outside wherever you 
go. I could know your location by making sure I have enough 
cops on the street. I don't think I have to go to a court to do 
that.
    What is the essential difference, from an analytical 
standpoint, between having an unlimited number of cops 
available to do that and being able to track you by the device 
that you might have? And once we establish what that analytical 
difference is, what standard should be used, if any, to limit 
what law enforcement might do? Can you help me with that?
    Ms. Crump. I think that is one of the most interesting and 
complicated questions in this area. And you are getting at the 
difference between physically following someone on the one hand 
and tracking them electronically on the other.
    In a word, the difference is resources. Physically tracking 
someone requires a significant expenditure of resources on 
behalf of law enforcement, and that imposes a natural limit on 
the degree to which this intrusive form of surveillance can be 
carried out.
    What has happened with the development of electronic 
tracking is, that natural limit has fallen away. So today is it 
possible for a law enforcement agency to track someone's 
movement in the comfort of the stationhouse simply by tracking 
the location of their cell phone. And I think----
    Mr. Lungren. So what is the analytical application there? I 
mean, we don't define privacy standards by budgets, I presume, 
or by the comfort or discomfort of the law enforcement officer. 
So what should we be looking at to help us to come up with 
legislation that is appropriate?
    Ms. Crump. Thank you.
    I think the relevant factor is the degree of privacy 
invasion. And I think what motivated the Supreme Court's 
unanimous decision in Jones was the view by many of the 
Justices that tracking someone electronically for 24 hours a 
day, 7 days a week is simply a totally different animal than 
doing that the old-fashioned way by foot.
    And because the technology has changed, we need to 
recalibrate the relevant legal standards. And I think the GPS 
Act does that quite well.
    Mr. Sensenbrenner. The gentleman's time is expired.
    The gentleman from Georgia, Mr. Johnson.
    Mr. Johnson. Yes, I was going to ask a similar question. My 
question would have been, if an automobile is situated in a 
public place and then law enforcement attaches a GPS device 
surreptitiously, what is the difference between that kind of 
surveillance and also just a physical surveillance, you put a 
tail on someone and follow them around for 28 days or so? You 
could certainly follow someone around in a car--one car or two 
cars could follow someone for 28 days, and there would be no 
issue as far as privacy is concerned. Is that correct?
    Ms. Crump?
    Ms. Crump. Yes, thank you. I think----
    Mr. Johnson. You could even follow someone from the air in 
a helicopter, you know, or perhaps even a drone. If you are 
following someone with a drone that just hovers overhead and 
tracks their movements without a GPS on the automobile, you 
could do that legally, could you not?
    Ms. Crump. I think I would distinguish between the physical 
surveillance examples on the one hand and the drone and GPS 
tracking----
    Mr. Johnson. Well, how about a helicopter?
    Ms. Crump. And I think the helicopter is more like physical 
surveillance. You know, I think the salient difference is the 
ease with which this surveillance can be carried out. When----
    Mr. Johnson. If it is easier than physical surveillance--
well, if it is easier than physical surveillance on the ground, 
versus in the air, what are the implications?
    Ms. Crump. I think to some degree an economic analogy is 
useful. People simply buy more of something that is cheaper. 
And when you reduce the cost of engaging in surveillance, the 
odds that someone will engage in surveillance where is it not 
necessary or doesn't serve a strong law enforcement purpose 
increases. And, therefore, it is a greater threat to privacy, 
and a higher standard is warranted.
    Mr. Johnson. Well, Darrell Issa may come up with a device 
that interferes with the GPS signal from a car, and--I mean, 
the marketplace has something to do with this also.
    Mr. Black?
    Mr. Black. Well, I want to, I think, reiterate what my 
industry has done--and I love it--it has made it so easy to 
access this tremendous amount of private information. The 
resources, if you will, the prioritization of resources has 
acted as a certain natural check and balance on the overuse of 
extensive surveillance. What technology has done is made that 
cost de minimis, and will, frankly, make it even less so in the 
future. It gets smaller and smaller. So instead, not one person 
sitting in a police station watching one car; one person 
watching a thousand people that they now decided to follow.
    So the ease of doing it is why we are saying that we need 
to recalibrate what the threshold is.
    Mr. Johnson. Uh-huh. So that is--this is a very difficult 
situation that--I feel like yielding to Mr. Lungren.
    Mr. Lungren. Yeah, will the gentleman yield?
    One of the things that strikes me is, we see in a lot of 
cities now, they have a lot of cameras set up all over. And it 
has been controversial, but it is going on. Is there an 
essential difference between the ubiquitousness of cameras and 
being able to track somebody that way and this kind of a 
device? And is that difference that somehow you are invading 
the person's property interest--in other words, you are 
actually reaching out and touching them in order to be able to 
follow them? Or you are receiving something from something 
which is actually touching them? Is that a--could I ask that 
question?
    Mr. Johnson. Sure.
    Ms. Crump. I think there are a few ways to distinguish the 
camera example from GPS tracking. The physical attachment is 
one of them. Some people recognize an indignity to having their 
own object be turned into a device which is essentially spying 
on them.
    But also, today, cameras, generally speaking, capture one 
person at one point in time. They are not engaging in a type of 
continuous tracking. That may not be true in the future when 
all of these camera networks are, you know, networked together 
and can be easily be analyzed. But for right now, I think, 
where the technology is, there is a meaningful distinction.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from Pennsylvania, Mr. Marino.
    Mr. Marino. Thank you, Chairman.
    You raised the question, or you made the statement 
concerning the Supreme Court v. Jones, but you did not 
delineate their reasoning, to a certain extent. And when the 
Supreme Court stated that affixing a GPS monitor to track a car 
for weeks is within the meaning of the Fourth Amendment, it 
didn't address the search issue.
    So how would you interpret the search issue? Would you 
put--ma'am, would you put a 2-week limit on the search issue? 
Or is it a search issue? Could you please respond to that?
    Ms. Crump. Thank you for the question.
    Law enforcement agencies have actually objected to the idea 
of establishing different criteria based on the length of 
search. And they have done that because they argue that that 
would be unmanageable, because how do you know how long, you 
know, a search is? If you track someone for a week and then 
wait another week and then track for a week, where does it 
categorize?
    So, for that reason, I think it makes the most sense to 
establish a uniform and clear standard that will be easy to 
follow, and that should be a warrant, probable cause standard 
for all location tracking.
    But you are certainly correct in how you characterize the 
Jones decision. That case involved 28 days of geolocation 
tracking----
    Mr. Marino. That is right.
    Ms. Crump [continuing]. And Justice Alito specifically said 
that we are not reaching the question of how long tracking has 
to occur for it to be a search, but surely 28 days crosses any 
reasonable line.
    Mr. Marino. So do you draw a distinction between any type 
of potential crime or any type of investigation compared to--
let's use a drug investigation. We want to monitor, but we 
don't want to tip off the drug dealer that we are monitoring. 
And I say ``we'' because I was in law enforcement for 19 years. 
So it would tip that individual off, in most cases, that he or 
she was being followed.
    But let's take it to the next level. Let's take it to the 
level of a child being abducted, a child being taken by--we are 
not quite sure who the individual is per se, but we do have 
some reasonable information based on, say, a partial license 
plate, make and model of the vehicle, and to monitor that. Do 
you see a distinction there?
    Ms. Crump. I think we all share the common intuition that 
some crimes are more serious than others, and a petty theft 
versus a child abduction should potentially be treated 
differently.
    I think the GPS Act, as currently drafted, responds to that 
by, for example, including an emergency situation. So if a 
child is abducted and someone has a good-faith belief that the 
child is in danger, law enforcement would be able to engage in 
tracking in that case, even without meeting the warrant 
requirement. Similarly, in the bill there is an exception for 
national security investigations.
    Mr. Marino. So who makes that determination? You are going 
to allow law enforcement to make that determination on a case-
by-case basis?
    Ms. Crump. I think that this body is actually the 
appropriate one to make that determination. I think the current 
draft bill allows law enforcement appropriate flexibility, 
indicating the types of situations in which law enforcement 
should be able to track even where they don't meet the warrant 
requirement, while generally holding a warrant requirement in 
the vast majority of the investigations where the police have 
time to go to a judge and prove their case to a neutral 
magistrate.
    Mr. Marino. Okay, thank you.
    I don't know what my time is, but does anyone else on the 
panel have a comment pursuant to those statements or questions?
    Sir, please.
    Mr. Cassilly. Yes, I think one of the issues becomes the 
responsiveness of the service provider. I mean, as the 
Congressman asked the question, who determines when you fall 
under the exception, I think the issue becomes, do the police 
run in to a disagreement with the service provider? Well, you 
know, we think their lives are at stake, and the service 
provider's response is, well, you know, we don't think so; you 
know, we are too busy right now. And I think one of the parts 
of this discussion should be, you know, what are the standards 
for the service providers to respond, the time limits that they 
have to respond.
    And I do agree that part of the good thing that comes out 
of this is that there is some sort of a standard instrument 
that comes out of this discussion--court order or a certain 
subpoena--with a basis that industry can rely on and say, okay, 
this is a reasonable request, we are required to respond to 
this, and we do so in good faith.
    Mr. Marino. Good. Thank you.
    I think my time has long expired. Thank you.
    Mr. Chaffetz. [Presiding.] The gentleman yields back.
    We will now recognize the gentlewoman from Texas for 5 
minutes.
    Ms. Jackson Lee. I thank the Chairman very much.
    And this is a very vital discussion. I offered some 
legislation just a while back dealing with privacy issues as a 
Member of the Homeland Security Committee, an opportunity for 
Federal agencies to talk together, or either the Department of 
Homeland Security to talk with Justice and another department. 
And, certainly, the issue of privacy was raised, and the 
amendment was challenged on that basis, even though I thought 
that I had adequately put in privacy provisions.
    And so I would like to pose my questions from a perspective 
of someone who has seen the challenge of privacy head-on and 
values my commitment to privacy and would make the argument 
that, in the instance of the particular amendment that had to 
do a lot with terrorism and issues of that sort, that it was 
misunderstood.
    But keeping that in mind, I vigorously believe that privacy 
is something that we should hold on to and deserves the 
ultimate standard of respect, while we recognize the challenges 
of law enforcement or those who are engaged in 
counterterrorism.
    So I would like to ask Mr. Cassilly, just aside from all 
the discussions you have had with other Members and that you 
may have repeated this or said this before, from the law 
enforcement perspective--and I am going to ask you to wear a 
prosecutor's hat and police hat only because you are dealing 
with receiving information from law enforcement--what would be, 
in your mind, a sufficient privacy or structure of protection 
for getting information such as the data that says, ``I was 
standing in a place today at a certain time,'' that is, phone 
data, making a phone call, or I was moving around, going toward 
another place, which is the information I understand that can 
be secured? What would be, in your mind, the privacy protection 
that law enforcement should adhere to or should consent to or 
should put in place?
    Mr. Cassilly. I think you are asking, just if I can clarify 
the question, what is the standard that we would use in being 
allowed to go forward to seek this information?
    Ms. Jackson Lee. Your clarification I think is a good 
interpretation of what I thought, you know, was clear, which 
is, what would you believe were satisfactory privacy parameters 
as you pursue getting this information?
    Mr. Cassilly. Well, I think that the proper standard, which 
is of course what the Supreme Court has said, with respect to 
law enforcement being able to go up and stop people on the 
street and to question them about crimes would be a reasonable 
basis. Do they have a reasonable basis, a reasonable suspicion, 
to make that inquiry, to stop someone on the street, if we are 
using that analogy? To detain them on the street, to require 
them to produce identification on the street, that requires a 
reasonable basis standard. And I think that would be----
    Ms. Jackson Lee. A reasonable basis of suspicion.
    Mr. Cassilly. Reasonable basis--reasonable suspicion of 
criminal activity. And I think that is the same standard that 
would work under these circumstances, to require law 
enforcement to be able to show a reasonable basis.
    And they could show that either to the prosecutor in 
issuing a subpoena or through a petition to the court for a 
court order, as long as that was the requirement for the 
showing.
    Ms. Jackson Lee. With that in mind, let me--thank you, Mr. 
Cassilly.
    Let me go to Ms. Crump. And in a calm Judiciary Committee 
room, that sounds reasonable, but I would say to you, since I 
am not a fan of stop-and-frisk, which I understand has taken 
over in epidemic proportions in areas like New York, I would be 
concerned, having issued probable cause warrants as a member of 
the judiciary, as a city court judge, and looking the officer 
face-to-face in whatever disguise they were in, because I would 
get them 11:00, 12:00, early morning hours, because they were 
just coming off the street and get the warrant based upon their 
presentation in the courthouse.
    Tell me your concerns about just that standard. Because 
what I see is potential, not purposeful havoc and not mean-
spirited havoc, but I see havoc. And tell me what the basic 
corners of the concern would be. I just see tracking going on.
    Ms. Crump. Thank you for the question.
    I think one of the aspects of this debate that your 
comments highlighted was the importance of a judge being 
interposed between a citizen and the police. We have a 
tradition in this country of interposing magistrate judges 
between the citizen and the police, and it is not because we 
don't trust law enforcement agents, but it is because we 
believe, as the Supreme Court has said, that often there is a 
need for an objective mind to weigh the evidence at hand. And I 
think that it is important when location tracking is at issue 
for there to be that interposition between the citizen and 
police.
    Ms. Jackson Lee. Say that----
    Mr. Chaffetz. Thank you----
    Ms. Jackson Lee. Could I just have her repeat? Objective 
mind----
    Ms. Crump. It is important to have an objective mind 
interposed between the citizens and the police.
    Mr. Chaffetz. Thank you----
    Ms. Jackson Lee. Well, let me thank you very much. I yield 
back.
    Mr. Chairman, may I just inquire to you directly and just 
indicate that, as I am looking at the legislation, H.R. 2168, 
if I might inquire, you think the legislation has an objective 
mind interposed in between the decision?
    Mr. Chaffetz. Yes, I do. Yes, I do.
    Ms. Jackson Lee. All right. I thank the Chairman. I yield 
back.
    Mr. Chaffetz. Thank you.
    Now we will start a second round of questioning, and I will 
recognize myself for 5 minutes.
    There are a number of exceptions that are put in here. Mr. 
Ramsey and Mr. Cassilly, is there anything that you would add 
or subtract to those list of exceptions as you have been able 
to look at the bill?
    Mr. Cassilly. Well, as I pointed out in my testimony, I 
think that the exception with respect to consent needs to be 
expanded to not only cover children's phones but to cover 
phones of persons who may be mentally limited or who may be 
ill.
    We recently had a case in Maryland where an individual who 
was going into a diabetic episode was not able to respond to 
911 operators to tell them where he was. Under those 
circumstances, either it is an emergency situation, if it 
doesn't fall under the life-threatening exception, there 
certainly should be some way of just asking a relative, ``Okay, 
is it okay if we locate his phone?'', something like that.
    But usually for someone who may be mentally limited, they 
are not going to--you know, they may function fine, they just 
may not be there.
    Mr. Chaffetz. Okay.
    Mr. Cassilly. So we think that ought to be a thing. I think 
you have two emergency exceptions in the statute; I think they 
need to come together. And I think that the emergency needs to 
be a little broader than just, you know, serious injury and 
death. That is a----
    Mr. Chaffetz. Let me do this in the essence of time. 
Perhaps if you could respond and give us any adaptations that 
you would like to see to the bill in general, but specifically 
to the exceptions.
    I would offer that to all of you, as well.
    Much of this is based on the wiretap statute. Is there 
anything that you don't like about the wiretap statute that you 
would also--you would change in this bill but you would also 
change in the wiretap statute?
    Mr. Ramsey?
    Mr. Ramsey. We wouldn't have an opinion on any changes to 
the Title III wiretap statute.
    Mr. Sensenbrenner. Mr. Cassilly?
    Mr. Cassilly. Well, I mean, I wouldn't want to see any 
changes reflected on Title III. But when you look at Title III, 
Title III requires a probable cause finding. And when you end 
up saying that there you actually get the contents of the 
communication, whereas here you are only getting, you know, a 
location of a cell phone, that if you are looking at it from a 
perspective of the degree of intrusion, that would say to me 
that then you would only require under these circumstances a 
reasonable, articulable suspicion.
    Mr. Chaffetz. Okay.
    Ms. Crump, Mr. Cassilly contends in his written statement 
that his organization believes, quote, ``It is imperative to 
distinguish between historical data compiled from cell tower 
hits and realtime GPS ping information.'' Could you comment on 
that?
    Ms. Crump. Thank you for the question.
    I don't think the distinction between historical and 
realtime data is a meaningful one. As one court has remarked, 
the story of your life doesn't become any less sensitive 
because it has already been written.
    Today, cell phone companies store historical information 
about us for very lengthy periods of time. Some cell phone 
companies keep records of where we have been for over a year. 
And I think, in light of that, many Americans believe that 
where they have been for the past 60 or 90 days is at least as 
sensitive as where they are going in realtime.
    Mr. Chaffetz. Let me also ask you, Mr. Ramsey contends that 
there should be a lower standard of law enforcement to access 
geolocation information from smartphones and other mobile 
devices than the standard for attaching tracking devices to 
cars, because in the case of smartphones, quote, ``the 
government doesn't own nor are they attaching the locational 
device to the person,'' as was obviously the case in the Jones 
case.
    Can you comment on that?
    Ms. Crump. My instinct on this is the same as Justice 
Alito, that the relevant privacy invasion is the tracking of 
someone, not the property invasion. And, therefore, I think the 
distinction between physically attaching a GPS device to a car 
and obtaining equivalent information from a cell phone company 
or an OnStar navigation system is not one that the law should 
reflect.
    Mr. Chaffetz. And, finally, in the essence of time here, 
again, we focused all on law enforcement; my intention with 
this legislation was also to make this applicable to non-law-
enforcement entities.
    Is there anything in the bill that troubles you in terms 
of, is it civilians or average citizens out there tracking or 
following other individuals? Because right now they are not 
precluded from doing so, in many of these cases. Is there 
anything that bothers you outside of the scope of law 
enforcement that you would change?
    Mr. Ramsey or Mr. Cassilly?
    Mr. Cassilly. I think there is some concern over the 
industry, the folks who work for the industry being intimidated 
somewhat by complying with a legitimate law enforcement request 
by the fear of becoming criminally or civilly liable. And I 
think that needs to be clarified, as well as more specifics on 
what sort of cooperation law enforcement can expect back from 
the industry, when we can expect to receive information and 
that sort of thing.
    Mr. Black. If I could respond, yes, certainly I think 
industry very much wants a clearer standard. And one of the 
reasons we want a reasonably high standard is because being 
deluged with tens of thousands of requests at a lower standard 
frankly becomes quite burdensome and requires decision-making 
at a much different level.
    First of all, keep in mind, we have a wide range of 
companies who may get involved here. We are not just talking 
big Internet platforms. We are talking a lot of companies that 
may be much smaller, do not have legal counsel, do not have a 
range of capability and structure to deal with that.
    So, particularly, there was some reference to, I think in 
testimony, to a mandatory response time situation. Any fixed 
time would be very harmful. The DMCA uses the word 
``expeditiously'' in terms of response--I think any legislation 
talking about industry response needs that flexibility because 
of the diversity of providers that exist.
    Mr. Chaffetz. Thank you.
    I now recognize the Ranking Member, Mr. Scott, for 5 
minutes.
    Mr. Scott. Thank you.
    There are a number of exceptions in the bill. Mr. Black, 
should there be an exception if the evidence is getting away--
that if you delay and get a warrant, the person will escape and 
you won't know where they are?
    Mr. Black. Your question is with regard to the exception 
relating to----
    Mr. Scott. Where there are life and death exceptions, 
people's lives are in danger. Do you have that exception?
    Mr. Black. Well, certainly----
    Mr. Scott. What about, the bank just got robbed and the 
people are getting away, and if you can get the information 
right then, you might be able to catch the person, and if you 
wait 45 minutes, they would have gotten away. Is that an 
exception?
    Mr. Black. I think we start out with the assumption that 
the exceptions that we see provide for most emergency 
situations, and that to the extent the exception needs to be 
broader, there is a great deal of privacy risk at stake. And I 
would like to see the law enforcement justification as to why 
the current exceptions really aren't adequate to cover 
specific----
    Mr. Scott. Mr. Ramsey, would you want an exception for the 
evidence that is getting away?
    Mr. Ramsey. I think that would be appropriate for all law 
enforcement----
    Mr. Scott. And how do you cover that--is there an exception 
now with other warrants, that if you had a search warrant, you 
need to get the information right away or it may get away, and 
then you get an after-the-fact warrant?
    Mr. Ramsey. You have hot-pursuit exceptions that--you have 
exceptions to a warrantless arrest or situation.
    Mr. Scott. Okay, so a hot-pursuit type of warrant would be 
an exception that would--Ms. Crump, what do you think about a 
hot-pursuit exception?
    Ms. Crump. In the Fourth Amendment doctrine, that is well-
recognized exception, and I could imagine a reasonably crafted 
exception here that encompassed the same idea.
    Mr. Scott. Okay.
    Who pays the costs of all of this? Mr. Black indicated a 
deluge of requests. That would obviously have cost implications 
to a phone company. Who pays the additional costs to responding 
to all of these requests?
    Mr. Black. Under some existing statutes, there are cost 
referral situations, and companies do get some compensation. I 
think we have to--while companies are not anxious to incur the 
burden without compensation, on the other hand we want to make 
sure that this does not become a profit center for companies. 
We do not want them encouraging law enforcement to come 
undertake unnecessary and widespread surveillance in order to 
get revenue.
    Mr. Scott. Thank you.
    Do the different phone companies keep different data? 
Apparently, they can keep track of where you have been, because 
as you travel your phone pings the cell, so they can find out 
all the cells where you were. There are also business records 
of when and where you made a call.
    Do different companies keep different data, Ms. Crump?
    Ms. Crump. Yes, they do keep some different data, at least 
in terms of the length of time that they store the information.
    So, for example, we were able to obtain through a Public 
Records Act request a one-sheet document from the Department of 
Justice in which it summarized how long different carriers kept 
different forms of location information. So, for example, 
Verizon stores the cell phone towers used by a mobile phone for 
1 rolling year; T-Mobile keeps it for 4 to 6 months officially 
but, quote, ``really a year or more''; and AT&T Cingular 
retains it from July 2008. So who your carrier is impacts----
    Mr. Scott. Is that the fact that you made a call or where 
you were?
    Ms. Crump. That is an excellent question that I would like 
to know the answer to.
    Oh, I am sorry. Let me clarify that. That is where you 
were, but the precise nature of that information, how precise 
it is, is something that neither carriers nor law enforcement 
has disclosed.
    Mr. Scott. Okay. But how long--if you made a call, how long 
is that kept? Is that a different list?
    Ms. Crump. That is a different list.
    Mr. Scott. Okay.
    Ms. Crump. And it is also on this piece of paper, but I 
don't have it with me.
    Mr. Scott. Okay.
    Now, Ms. Crump, you said there was no difference between 
the historical record and realtime data, but should there be a 
different standard in getting information that you made a phone 
call from Times Square on New Year's Eve, yes or no? Should 
there be a different standard from realtime tracking?
    Because, but for the privacy, electronic privacy records, a 
fact that you made a phone call would be a business record that 
you could scoop up on a relevance basis.
    Ms. Crump. I agree with the general idea that as the 
information becomes more precise, it is more sensitive. 
However, the GPS Act provides a uniform standard, because law 
enforcement----
    Mr. Scott. Even for getting a historic business record 
should be the same standard as realtime tracking?
    Ms. Crump. I don't think it is fair to view cell phone 
location data as just another form of business record. 
Similarly, you know, our email is, in some sense, Google's 
business record if we have a Gmail account because it is all 
stored there. I think today it is more like, you know, a safe 
deposit box. We are entrusting something valuable about us to a 
third-party company, and that is different from it being just 
the business record of a bank.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Black. If I would have a chance to comment, I would 
very much echo that. I think the technology in the email 
reference was on point. If we go to the concept that the data 
used by technology companies to perform their functions are 
just business records, then a massive amount of information 
about everyone becomes available under a lower standard.
    Mr. Chaffetz. The gentleman's time has expired.
    We will now recognize the gentleman from South Carolina, 
Mr. Gowdy, for 5 minutes.
    Mr. Gowdy. Thank you, Chairman Chaffetz.
    I will resist the temptation to ask about the expectation 
of privacy with emails that can be easily forwarded to the rest 
of the world. And I will instead ask Ms. Crump, you gave a 
quote to the gentlelady from Texas which I tried to write down 
but I missed it. It had something to do with a credible--
something. Credible intermediary? Credible objective?
    Ms. Crump. I am afraid that my memory is no better about 
what I may have said.
    Mr. Gowdy. I think you were referring to, it is better to 
have a neutral, credible, detached----
    Ms. Crump. Magistrate judge, yes.
    Mr. Gowdy. Right. Which then got me wondering who that 
credible, neutral, detached magistrate is with the automobile 
exception to the Fourth Amendment.
    Ms. Crump. There is an exception when there is----
    Mr. Gowdy. Then there is no credible, neutral, detached 
intermediary, correct?
    Ms. Crump. Although in general the Fourth Amendment 
requires you to go to a----
    Mr. Gowdy. I wasn't asking in general. I was asking about 
one of the exceptions.
    Ms. Crump. There are exceptions in the automobile----
    Mr. Gowdy. How about exigent circumstances? Who is the 
credible, detached, neutral intermediary with the exigent 
circumstances exception?
    Ms. Crump. Similarly, because the circumstances are 
exigent, there is no requirement that you go to a judge.
    Mr. Gowdy. How about the public safety exception? Who is 
the credible, neutral, detached intermediary between law 
enforcement and private citizens with the public safety 
exception?
    Ms. Crump. I think you are pointing to another extreme 
example where we all recognize that there is----
    Mr. Gowdy. How about the plain field doctrine? Who is the 
credible, neutral, detached intermediary between the public and 
law enforcement with the plain feel doctrine?
    Ms. Crump. Because the plain feel doctrine doesn't 
implicate the same privacy interests, there is no----
    Mr. Gowdy. How about the plain view doctrine?
    Ms. Crump. I would have the same answer to that.
    Mr. Gowdy. Border exceptions?
    Ms. Crump. It depends on the nature of the search at the 
border, but----
    Mr. Gowdy. Search incidents to arrest?
    Ms. Crump. I think what you are driving at is that there--
--
    Mr. Gowdy. What I am driving at is, there are lots of 
exceptions.
    Ms. Crump. That is right, but that doesn't mean there isn't 
a rule and that the rule isn't probable cause. And that there 
is a good reason----
    Mr. Gowdy. Well, some would argue the rule has been 
swallowed by the exceptions. I would imagine your entity might 
argue from time to time that the rule has been swallowed by the 
exceptions, not to put words in your mouth, but--well, let me 
ask you this. Can you help me come up with all the instances in 
the criminal justice system where probable cause is not 
required?
    Ms. Crump. I think you have come up with a pretty good list 
already----
    Mr. Gowdy. Yeah, but you----
    Ms. Crump [continuing]. But they have a common unifying 
theme, which is usually either a reduced expectation to privacy 
because the information sought isn't sensitive----
    Mr. Gowdy. How about drug dogs? What is required to bring a 
drug dog and search a car?
    Ms. Crump. A drug dog and a car? There is generally no 
requirement that there is probable cause.
    Mr. Gowdy. Well, it is an articulable suspicion, right?
    Ms. Crump. Well, the Supreme Court is reconsidering drug 
dogs sniffs right now, but currently the standard----
    Mr. Gowdy. But now it is articulable suspicion. So we 
have--at one level, you don't have to have anything; you can 
just have a hunch. For instance, you can walk up to someone's 
house and do a knock-and-talk, and you don't have to have any 
basis to be able to do that. Police can stop and ask people 
questions, and they don't have to have any basis for doing 
that.
    And then you can have an articulable suspicion, you can 
have a reasonable basis, and then you get to probable cause, 
which is the same standards you have to have to arrest someone. 
So you really want police to be able to make an arrest before 
they can get historical GPS information. You want the same 
standard to get the historical GPS information as you would 
have to have to make an arrest.
    Ms. Crump. The arrest standard, like the house search and 
other standards, is a probable cause standard, and it is 
predicated on----
    Mr. Gowdy. I am asking your opinion. You think that we 
should be able to make an arrest before we can get the 
historical GPS information.
    Ms. Crump. Well, I don't think the standard for--no, I 
don't. And the reason is, to get probable cause for location 
information, you have to have a good reason to believe that a 
search will turn up evidence of a crime. So it is a different 
type of probable cause than actually physically arresting 
someone.
    Mr. Gowdy. There is not a different definition for probable 
cause depending on whether it is an investigation or whether it 
is an arrest.
    Ms. Crump. Well, when you are going to arrest someone, you 
have to have probable cause that they have committed a crime.
    Mr. Gowdy. Right.
    Ms. Crump. The only distinction I was drawing is that, to 
obtain geolocational information, you have to have probable 
cause to believe that a search will turn up evidence of a 
crime.
    Mr. Gowdy. My time is up.
    Mr. Chaffetz. The gentleman's time has expired. Yields 
back.
    We now recognize the gentleman from Georgia for 5 minutes.
    Mr. Scott. Thank you.
    This is an area with unlimited implications, and so I 
appreciate all of the witnesses today for your diligence in 
responding to some difficult questions.
    I will ask one, though, and it may not be too difficult, 
but--I understand that when you walk into a grocery store that 
there are things in the grocery store that connect with your 
cell phone and they can track you walking around in the store 
and then send a message to a screen, where you might happen to 
be pondering whether or not you should do what you always do at 
the store, and that is get that cherry pie even though you are 
on a diet and everything. And them, boom, they start flashing 
out to you, ``Cherry pie, 50 percent off,'' you know, ``Get one 
now,'' you know.
    Is that a violation of--would that be a violation of this 
proposed legislation?
    Mr. Black. I suppose I ought to try that. No, we have a 
consent--we have users, basically, you have--the owner of the 
cell phone has a choice as to those kinds of services being 
made available or not.
    Mr. Scott. Well, I mean, a lot of people have cell phones 
and then we come up with new technology----
    Mr. Black. That is right.
    Mr. Scott [continuing]. And there was never a consent given 
in the agreement for the cell phone.
    Mr. Black. I think it is important to point out that our 
industry has found a great deal of sensitivity in the public to 
privacy. Facebook has made some changes, and there have been 
outcries. Google merely consolidated existing privacy policies, 
and there was wild outcry. There is an FTC oversight that has 
taken actions in a number of places. Consumer boycotts exist in 
many instances.
    The empowerment of the user community out there is very, 
very real. And I think you have a lot of free market operation 
to balance and control with, if you will, abusive practices. 
People may exceed what somebody might find comfortable, but 
there really are mechanisms in that world to push back.
    Mr. Scott. So you are suggesting----
    Mr. Black. That is different than somebody knowing and 
being able to use that in an adversarial proceeding, which I 
think is what the bill is largely focused at.
    Mr. Scott. Well, if there was a crime committed with the 
DNA from a discarded paper plate with the residue of cherry pie 
on it, and law enforcement subpoenaed the records of the Harris 
Teeter store to see whether or not you purchased a cherry pie 
on a particular day shortly before the----
    Mr. Black. If there was only one cherry pie sold in the 
city and somebody bought it, maybe you could build a probable 
cause standard.
    Mr. Scott. Yeah, I mean, but I still need to get an answer 
for my question. Does this kind of scenario, the store or 
whoever it is in control of capturing the data while you are 
walking around in the store, would that be an illegal act under 
this legislation that is proposed? Can someone answer that?
    Ms. Crump. I believe I can answer. And as I read the 
definition set out in the statute, that is not covered, because 
the definitions target the provider of an electronic or remote 
computing service or the provider of a geolocation information 
service. And because the store itself is not one of those 
services, I don't believe, at least under the current draft, 
that it is covered.
    Mr. Scott. Well, then, would it cover law enforcement?
    Ms. Crump. To take your cherry pie DNA example, I think in 
that case it wouldn't be covered, because this bill deals 
exclusively with tracking people through electronic devices. 
You know, if law enforcement was trying to track someone, you 
know, the cherry-pie eater's movement after the fact, the bill 
would cover it if they did so through their cell phone or GPS. 
But it wouldn't cover the precise scenario you mentioned.
    If you don't mind, I will also mention that your initial 
hypothetical was quite realistic. There was a mall that 
actually tried tracking people's movements through their cell 
phones. And when the public found out about it, their outrage 
was so great that the mall quickly announced it had 
discontinued the practice. And I think that is a good example 
of how location information is still considered to be quite 
sensitive even in this digital age and why this act is so 
important.
    Mr. Chaffetz. Thank you. The gentleman's time has expired.
    We will now recognize the gentlewoman from Texas for 5 
minutes.
    Ms. Jackson Lee. First, I want to acknowledge I think this 
hearing is enormously important, and I think the work that is 
being done by law enforcement is equally important.
    Mr. Ramsey, I did not mention that local law enforcement is 
also involved in counterterrorism, to the extent that 
individuals spread out into our respective communities--and as 
I indicated, I am on Homeland Security.
    But as I listened to my good friend from South Carolina lay 
out a litany of exceptions, I would make the argument that 
there is a framework upon which you can work with. And I just 
want to ask a simple question. Law enforcement is not 
interested in extinguishing privacy rights of citizens, is--I 
am asking you, Mr. Ramsey.
    Mr. Ramsey. You are asking me----
    Ms. Jackson Lee. Yeah, that is not your mission, to 
eliminate privacy rights of citizens.
    Mr. Ramsey. No, it is not. No.
    Ms. Jackson Lee. All right. So I just wanted to say that 
because I want to move on to other questions. And, as I said, 
this is a week where we are honoring police officers, and 
having been a former city court judge, I have dealt with 
officers a lot.
    But I want to focus on Mr. Black and Ms. Crump. As I have 
said, as I listen to the long litany of exceptions, I become 
more comforted that we need to ensure that we have the right 
standards in this legislation that I am very interested in, 
H.R. 2168, but we do have, I think, a need to balance both 
rights. Because in the course of the stop-and-frisk--I am just 
on a metaphor statement here--in the course of the stop-and-
frisk, innocent people are stopped and frisked. And that is the 
physical act of stopping and frisking individuals. And we know 
that, in the course of that that is under the label of law 
enforcement, there are individuals being stopped for no reasons 
whatsoever. And I think we have to protect against that.
    So I just want to ask the question to Mr. Black. In these 
companies, generally, as you represent them, do they have a 
direct-dial number? Is there a number that law enforcement is 
assigned to? Or is it a random, pick up the phone, speaking to 
someone trying to get information?
    Mr. Black. Well, certainly, in larger companies, there are 
well-established procedures to integrate with entities.
    Ms. Jackson Lee. Right.
    Mr. Black. However, having said that, first of all, a lot 
of small companies are not able to do that. And even the 
largest companies, we are not dealing with just the Department 
of Justice or just even the State police; we are talking about 
jurisdictions of State, local, county, many, many different 
jurisdictions that may choose to try to contact companies in a 
variety of ways and different people.
    So it is not clear that there is an easy channel always, 
even if both sides want it. The diversity--some, you know, a 
district attorney, a sheriff in a variety of places--I mean, 
many, many requests come in.
    And that is one of the problems I think we see, is that 
the--knowing this information is potentially--is there, the 
incentive to want it even when the need isn't that great, when, 
``Gee, it might be nice to know that,'' will geometrically 
expand the requests, increase the burden, and increase the 
amount of privacy intrusion that may not really be highly 
justified.
    Ms. Jackson Lee. And I wanted to get that on the record, 
because you all fall sometimes in the category of too big to 
fail or too big to be big, and so it looks as if you should be 
able to handle everything. But I think privacy is as important 
for the larger companies with larger portfolios of customers as 
it might be for the small guys.
    The other point I want to make is that, if I am correct, I 
believe that there is certainly the right of police when it is 
a child victim involved to pursue this information and be 
insistent. I think under the legislation, if I am not mistaken, 
that children provide the cover for getting information 
quickly.
    My next question would be, is there a sense of 
intimidation? If you are talking about different size 
companies, law enforcement calls up, is there a sense of 
intimidation or a sense of the urgency without seeking 
protections because you have law enforcement? Which means--it 
is the nexus to my point, that we need some parameters.
    Mr. Black. Let me say first of all, I think my companies 
can be expected to be good citizens. We have numerous instances 
of receiving awards, some from law enforcement entities, for 
the rapid response in that situation.
    Ms. Jackson Lee. And that is good.
    Mr. Black. Willing to do that. The difficulty, as I say, 
you start creating fixed rules that become very difficult to 
operate for different kind of companies in different kind of 
settings. But, clearly, an expeditious type standard--yes, we 
want to respond. There is no desire to do anything but respond 
in emergency-type situations.
    I think, frankly, the availability of the exceptions in the 
legislation help underline the importance of the basic standard 
itself. The more we see good flexibility in the exceptions, the 
more necessary and desirable and dependable it is to have the 
probable cause standard.
    Mr. Chaffetz. Thank you----
    Ms. Jackson Lee. I ask the Chairman for an additional 1 
minute, just unanimous consent. I just need to follow up with 
Ms. Crump, just for a moment, please.
    Mr. Chaffetz. Without objection, so ordered.
    Ms. Jackson Lee. I thank you.
    Ms. Crump, with the litany of exceptions that, I must say, 
that you handled very well as you repeatedly were being posed a 
series of criminal exceptions that we understand here, doesn't 
that give you the sense that although we want to adequately 
equip our law enforcement, that there are sufficient exceptions 
that we should be very keenly pointed toward the privacy 
issues, and that the opportunity to track where you are going, 
where you have been, the opportunity to mislabel someone and 
misidentify, is crucial for us getting in front of this new 
technology instead of behind it?
    Ms. Crump. Thank you for the question, and I couldn't agree 
more with what you said. There are numerous exceptions already 
to the Fourth Amendment, but that doesn't change the fact that 
the benchmark is a warrant and probable cause and that that 
serves a valuable function when law enforcement wishes to 
access deeply sensitive information about all of us.
    The Fourth Amendment we often bemoan as having been eroded 
away too far, but there is a reason it was written into the 
Constitution. It is because the Founders intended there to be a 
balance between law enforcement interests and privacy 
interests. And this bill would help restore that balance.
    Ms. Jackson Lee. Let me thank the Chairman, and I yield 
back my time.
    Mr. Chaffetz. Thank you.
    I would like to thank all of our witnesses for your time 
and your testimony and your expertise and making the time and 
effort to be here.
    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 promptly as they can so the answers to these 
questions can be made part of the record.
    Also, without objection, all Members will have 5 
legislative days to submit any additional materials for 
inclusion in the record.
    Hearing no objection, so ordered.
    With that, again, I would like to thank the witnesses.
    The hearing is now adjourned.
    [Whereupon, at 11:52 a.m., the Subcommittee was adjourned.]
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