[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]



 
  ELECTRONIC COMMUNICATIONS PRIVACY ACT (ECPA) (PART II): GEOLOCATION 
                        PRIVACY AND SURVEILLANCE

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

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,
                 HOMELAND SECURITY, AND INVESTIGATIONS

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             APRIL 25, 2013

                               __________

                           Serial No. 113-34

                               __________

         Printed for the use of the Committee on the Judiciary


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



                  U.S. GOVERNMENT PRINTING OFFICE
80-542                    WASHINGTON : 2013
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing Office, 
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202ï¿½09512ï¿½091800, or 866ï¿½09512ï¿½091800 (toll-free). E-mail, [email protected].  

                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
HOWARD COBLE, North Carolina         ROBERT C. ``BOBBY'' SCOTT, 
LAMAR SMITH, Texas                       Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
SPENCER BACHUS, Alabama              ZOE LOFGREN, California
DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
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                     JUDY CHU, California
TED POE, Texas                       TED DEUTCH, Florida
JASON CHAFFETZ, Utah                 LUIS V. GUTIERREZ, Illinois
TOM MARINO, Pennsylvania             KAREN BASS, California
TREY GOWDY, South Carolina           CEDRIC RICHMOND, Louisiana
MARK AMODEI, Nevada                  SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho                 JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas              HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
[Vacant]

           Shelley Husband, Chief of Staff & General Counsel
        Perry Apelbaum, Minority Staff Director & Chief Counsel
                                 ------                                

Subcommittee on Crime, Terrorism, Homeland Security, and Investigations

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman

                  LOUIE GOHMERT, Texas, Vice-Chairman

HOWARD COBLE, North Carolina         ROBERT C. ``BOBBY'' SCOTT, 
SPENCER BACHUS, Alabama              Virginia
J. RANDY FORBES, Virginia            PEDRO R. PIERLUISI, Puerto Rico
TRENT FRANKS, Arizona                JUDY CHU, California
JASON CHAFFETZ, Utah                 LUIS V. GUTIERREZ, Illinois
TREY GOWDY, South Carolina           KAREN BASS, California
RAUL LABRADOR, Idaho                 CEDRIC RICHMOND, Louisiana

                     Caroline Lynch, Chief Counsel

                     Bobby Vassar, Minority Counsel


                            C O N T E N T S

                              ----------                              

                             APRIL 25, 2013

                                                                   Page

                           OPENING STATEMENTS

The Honorable F. James Sensenbrenner, Jr., a Representative in 
  Congress from the State of Wisconsin, and Chairman, 
  Subcommittee on Crime, Terrorism, Homeland Security, and 
  Investigations.................................................     1
The Honorable Robert C. ``Bobby'' Scott, a Representative in 
  Congress from the State of Virginia, and Ranking Member, 
  Subcommittee on Crime, Terrorism, Homeland Security, and 
  Investigations.................................................     2
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Ranking Member, Committee on 
  the Judiciary..................................................     3

                               WITNESSES

Mark Eckenwiler, Senior Counsel, Perkins Coie LLP
  Oral Testimony.................................................     6
  Prepared Statement.............................................     8
Peter A. Modaferri, International Association of Chiefs of Police
  Oral Testimony.................................................    19
  Prepared Statement.............................................    21
Catherine Crump, Staff Attorney, American Civil Liberties Union 
  (ACLU)
  Oral Testimony.................................................    29
  Prepared Statement.............................................    31
Matt Blaze, Professor, University of Pennsylvania
  Oral Testimony.................................................    43
  Prepared Statement.............................................    45

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Ranking Member, Committee on the Judiciary.....................     4

                                APPENDIX
               Material Submitted for the Hearing Record

Material submitted by the Honorable Robert C. ``Bobby'' Scott, a 
  Representative in Congress from the State of Virginia, and 
  Ranking Member, Subcommittee on Crime, Terrorism, Homeland 
  Security, and Investigations...................................    72
Questions for the Record submitted to Mark Eckenwiler, Senior 
  Counsel, Perkins Coie LLP......................................   152
Response to Questions for the Record from Peter A. Modaferri, 
  International Association of Chiefs of Police..................   155
Questions for the Record submitted to Catherine Crump, Staff 
  Attorney, American Civil Liberties Union (ACLU)................   158
Response to Questions for the Record from Matt Blaze, Professor, 
  University of Pennsylvania.....................................   161


  ELECTRONIC COMMUNICATIONS PRIVACY ACT (ECPA) (PART II): GEOLOCATION 
                        PRIVACY AND SURVEILLANCE

                              ----------                              


                        THURSDAY, APRIL 25, 2013

                        House of Representatives

                   Subcommittee on Crime, Terrorism, 
                 Homeland Security, and Investigations

                       Committee on the Judiciary

                            Washington, DC.

    The Subcommittee met, pursuant to call, at 10 a.m., in room 
2141, Rayburn House Office Building, the Honorable F. James 
Sensenbrenner, Jr. (Chairman of the Subcommittee) presiding.
    Present: Representatives Sensenbrenner, Goodlatte, Scott, 
Conyers, Chu, and Richmond.
    Staff Present: Anthony Angeli, Majority Counsel; and Joe 
Graupensperger, Minority Counsel.
    Mr. Sensenbrenner. The Subcommittee will come to order. 
Without objection, the Chair will be authorized to declare 
recesses during votes today.
    This hearing is the second in a series on the Electronic 
Communications Privacy Act, otherwise known as ECPA. Today, we 
will examine the issue of geolocation and its use by law 
enforcement in criminal investigations.
    While this hearing was planned before the attack in Boston, 
those tragic events highlight the importance of the topic. The 
stakes are high. As in any ECPA reform, Congress needs to 
strike the right balance to protect privacy rights without 
undermining law enforcement.
    The term ``geolocation'' is often used broadly and in a 
variety of contexts. Geolocation refers to the method of 
assessing the location of an electronic device--typically a 
cell phone, but sometimes a vehicle--with or without a tracker 
or a computer.
    Geolocation is often related with the acquisition of cell 
tower information to determine the general location of a cell 
phone. Thus, frequently, geolocation is related to the use of 
global positioning systems, or GPS.
    The results from its use often vary. Depending upon the 
type of cell phone being tracked or the provider on whose 
network it operates, the information about a phone's location 
can vary from a city block to specific latitude and longitude 
coordinates.
    The primary objective of this hearing is to examine whether 
the electronic acquisition of a device's geographical location 
is covered by the Fourth Amendment and, if so, what level of 
legal process should be required before accessing such 
information. The hearing will also examine how law enforcement 
makes use of this information and its importance in their 
response to criminal and national security threats.
    ECPA 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 geolocation technology. As GPS technology has become 
cheaper, more widely available, and used more frequently in our 
daily lives, the legal authorities and restrictions that are or 
should be in place to govern when and where such information is 
accessed and used have become less clear.
    No one doubts that geolocation information is useful, 
especially to law enforcement officers and agents. The larger 
question is how do we balance the needs of law enforcement with 
the expectations of privacy of those they are charged with 
protecting?
    In U.S. v. Jones, the Supreme Court proposed that new 
intrusions on privacy may spur the enactment of legislation to 
protect against these intrusions, as had occurred in the case 
of wiretapping many years ago. The court asserted that Congress 
should enact a comprehensive statute regulating the use of GPS 
tracking technology for law enforcement purposes.
    Since all geolocation capabilities are not created equal, 
our task in enacting comprehensive legislation is more complex. 
Unfortunately, Jones was limited to the installation of a GPS 
tracker on a suspect's vehicle and gives us limited guidance.
    I am dismayed to point out that the Department of Justice 
declined to testify at today's hearing. I was tempted to have 
an empty chair for their witness, should they change their mind 
at the last minute. There is not an empty chair at the witness 
table, but the chair notes that there are plenty of empty 
chairs in the room, should they decide to appear.
    As the Nation's most frequent user of ECPA for geolocation 
purposes, the department is in a unique position to educate the 
Members of this Subcommittee on the status of Federal law and 
the department's current practices when seeking court orders 
for geolocation information. While DOJ has briefed Committee 
staff on ECPA and geolocation, the Obama administration has 
refused our request to testify in public because it lacks a 
clear policy position on how best to reform ECPA.
    This is unacceptable, and I don't want to spend a lot of 
time working on something that is workable when, all of a 
sudden, out of the blue there will be a statement of 
Administration policy that will threaten a veto over hours of 
work and input from everybody except the Department of Justice. 
We must, unfortunately, move forward in their absence.
    I welcome our witnesses who are with us today and look 
forward to their testimony and now recognize the gentleman from 
Virginia, Mr. Scott, the Ranking Member.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Chairman, today we meet to discuss issues related to 
geolocation, privacy, and surveillance and the need to clarify 
the standards of Government access to certain types of personal 
location information.
    Technology affords us greater conveniences, but advances in 
technology present new challenges to our privacy rights. Much 
more information is generated about us, and we are presented 
with questions about how it is stored and by whom it may be 
accessed.
    The Supreme Court 1967 decision Katz v. United States 
continues to direct our privacy jurisprudence. In that case, a 
man's calls from a public pay phone booth were recorded by a 
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.''
    Now that standard should continue to guide us today. When 
we go somewhere in public, we know that we may be seen by 
others, and even if we do not want others to know where we are, 
the visual recognition by others is a risk we take. What we do 
not expect is that our carrying of a personal communication 
device, such as a cell phone, will be used by Government to 
track and record our every move.
    This is particularly the case as cell site location 
information has become, in many cases, as accurate as GPS 
because of the growing number of cell sites and the use of 
microcells that cover extremely small areas. We have laws that 
make a combination between privacy rights and sometimes urgent 
need of law enforcement to investigate crimes, and that is why 
Congress drafted Federal statutes to restrict Government access 
to the content of electronic communications but provides a less 
stringent standard for accessing noncontent records reflecting 
just that a communication took place, but not the content of 
the communication.
    The Electronic Communications Privacy Act, which was 
enacted in 1986, was forward looking in some ways but did not 
contemplate every possible technological advance. Because the 
statute did not foresee the current state of location 
technology, the law 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.
    While we should have exceptions for emergency situations 
and situations where the need to locate a missing person--where 
there may be a need to locate a missing person, we need 
legislation to address the lack of clarity in the law by 
generally requiring the Government to show something, possibly 
probable cause, to get a warrant in order to obtain historical 
and prospective data location about our citizens.
    Given our expectation of privacy, this should be the 
starting point for our discussion of the issue today.
    I yield back the balance of my time.
    Mr. Sensenbrenner. I thank the Ranking Member.
    The Chair now recognizes the most recent Chairman emeritus 
of the Committee, the gentleman from Michigan, Mr. Conyers, for 
his opening remarks.
    Mr. Conyers. Thank you, Chairman Sensenbrenner and Ranking 
Member Scott.
    I will put my statement in the record and indicate my 
support and co-sponsorship of H.R. 1312 and warmly welcome the 
witnesses that are joining us here today.
    This question of cell phones and tracking locations are 
right smack up against the privacy considerations, and this 
discussion and this legislation will be very important in that 
direction.
    And so, I am happy to join all of you at this hearing, and 
I return the balance of my time.
    [The prepared statement of Mr. Conyers follows:]

Prepared Statement of the Honorable John Conyers, Jr., a Representative 
 in Congress from the State of Michigan, and Ranking Member, Committee 
                            on the Judiciary

    Today we consider a critical issue of personal privacy: whether the 
government should have to show probable cause and get a warrant in 
order to obtain from wireless devices information about where someone 
has been or is going. This is particularly important because the ACLU 
has reported the widespread use of cell phone tracking by law 
enforcement agencies and revealed that the legal standards used to 
engage in tracking vary widely.
    I want to make several points about this issue and what we must do.
    First, government tracking of everywhere we go is contrary to our 
reasonable expectation of privacy. Today, almost all of us carry cell 
phones or other electronic devices, but we do so in order to 
communicate with each other, not to be tracked by the government. 
Geolocation tracking, whether information about where we have been or 
where we are going, strikes at the heart of personal privacy interests.
    The pattern of our movements reveals much about ourselves. When 
individuals are tracked in this way, the government is able to generate 
a profile of a person's public movements that includes details about a 
person's familial, political, professional, religious, and other 
intimate associations.
    Next, we must recognize that the Supreme Court's decision last year 
in U.S. v Jones reinforces the fact that the question of location 
privacy in the hands of Congress. In Jones, the court ruled that 
placing a GPS tracking device on a car constitutes a search under the 
Fourth Amendment.
    While the Court was not presented with the question of whether a 
warrant should be required or under what standard a court order should 
be issued, the case highlights the need for us to address the full 
range of location tracking issues.
    In his concurring opinion, Justice Alito noted that the 
availability of location tracking devices, including cell phones, 
raises important questions about our expectations of privacy. He noted 
that Congress has not adequately addressed these issues and that ``in 
circumstances involving dramatic technological change, the best 
solution to privacy concerns may well be legislative.''
    Finally, I propose that we enact legislation to address uncertainty 
in the law and provide the appropriate standard. Current law does not 
adequately address this issue and we need to enact H.R. 1312, the 
``Geolocation Privacy and Surveillance Act.''
    I am a cosponsor this bill, introduced by Congressman Jason 
Chaffetz to require the government to obtain a warrant based on 
probable cause to compel cell phone companies to disclose the location 
information of their customers.
    As the New York Times reported, ``lawyers and law enforcement 
officials agree[] that there [is] uncertainty over what information the 
police are entitled to get legally from cell phone companies, what 
standards of evidence they must meet, and when courts must get 
involved.''
    Protecting the privacy of this information is up to Congress, and 
given the reasonable expectations of privacy we have about our location 
information, the appropriate standard is probable cause. That is why I 
support enactment of H.R. 1312.
    Thank you.
                               __________

    Mr. Sensenbrenner. I thank the distinguished Chairman 
emeritus.
    By tradition, we swear witnesses in at the beginning of 
each hearing. So will the witnesses please rise, raise your 
right hand?
    [Witnesses sworn.]
    Mr. Sensenbrenner. Let the record show that each of the 
witnesses answered in the affirmative, and the Chair will now 
introduce the witnesses.
    Mr. Mark Eckenwiler is senior counsel of the firm Perkins 
Coie. His focus is in electronic privacy law, civil and 
criminal liability for online conduct, computer intrusions, and 
service provider interactions with law enforcement. Mr. 
Eckenwiler previously served with the Department of Justice as 
a primary authority on Federal electronic surveillance law, 
including the Wiretap Act, the pen register/trap and trace 
statute, the Electronic Communications Privacy Act of 1986, and 
CALEA.
    Most recently, he was the Associate Director for Technology 
with the Office of Enforcement Operations in the Justice 
Department's Criminal Division, where he oversaw all Federal 
applications for Internet communications surveillance orders.
    He received his bachelor's of arts degree from Harvard, his 
master of arts from Boston University, and his law degree from 
NYU School of Law.
    Mr. Peter Modaferri has been a detective with the Rockland 
County District Attorney's Office for over 40 years and the 
last 25 years as chief of detectives. Since 1990, Mr. Modaferri 
has chaired the Investigative Operations Committee for the 
International Association of Chiefs of Police. He is a member 
of the Criminal Intelligence Coordinating Council and served as 
a regional expert for the Office of National Drug Control 
Policy Technology Transfer Program and consulted with the 
Foreign Terrorism Tracking Task Force, which was established in 
2001.
    Mr. Modaferri is a graduate of the FBI National Academy, 
holds a B.A. from Siena College, and a master of arts in 
criminal justice, and has concluded the coursework in the 
doctoral program at the City University of New York. In 1992, 
he was awarded a Fulbright Fellowship for graduate study in the 
United Kingdom.
    Ms. Catherine Crump currently serves as a staff attorney 
for the American Civil Liberties Union Speech, Privacy, and 
Technology Project. She is currently litigating constitutional 
challenges to cell phone tracking by law enforcement and is 
seeking information related to the Justice Department 
interpretation of how United States v. Jones applies to its 
location tracking activity.
    If you find that out, please let us know because, 
apparently, they don't want to tell us directly.
    She has directed nationwide requests for public records 
regarding law enforcement's use of cell phone information and 
license plate readers. She received her bachelor of arts from 
Stanford University and her law degree from Stanford Law 
School.
    Mr. Matthew Blaze is Associate Professor of Computer and 
Information Science at the University of Pennsylvania. Mr. 
Blaze's research focuses on cryptography, mass applications, 
trust management, human scale security, secure systems design, 
networking, and distributed computing. His focus is in security 
technology with bearing on public policy issues, including 
cryptology policy, wiretapping, and surveillance.
    He received his bachelor of science degree from City 
University of New York, Hunter College; his master of science 
degree from Columbia; and his master's of art and Ph.D. from 
Princeton.
    Each of the witnesses' written statements will be entered 
into the record in its entirety, and I ask that each summarize 
his or her testimony in 5 minutes. We have the lights there. 
The yellow light means you should speed up, and the red light 
means you should stop.
    Mr. Eckenwiler?

 TESTIMONY OF MARK ECKENWILER, SENIOR COUNSEL, PERKINS COIE LLP

    Mr. Eckenwiler. Chairman Sensenbrenner, Ranking Member 
Scott, Mr. Chairman Emeritus, and distinguished Members of the 
Subcommittee, thank you for your invitation to testify this 
morning on the important topic of cell phone location privacy.
    My name is Mark Eckenwiler, and I should state at the 
outset that my comments today reflect only my personal views. I 
will, of course, be drawing on my 16 years of experience 
working on a daily basis with the Electronic Communications 
Privacy Act, or ECPA. I am not speaking today on behalf of the 
Justice Department or my current employer or any individual 
client.
    My testimony today focuses on both the types of location 
data that law enforcement seeks from wireless providers and the 
legal rules that restrict such disclosures. I have three main 
points.
    First, not all location data is the same. It can be 
generated in a variety of ways, and one type of location data, 
cell site location information, is less precise than others. 
Second, in general, existing law provides a carefully 
calibrated set of meaningful protections for wireless user 
location data. The sky is not falling. And third, the current 
framework does, however, have some gaps and inconsistencies 
that I think would benefit from careful study by this 
Committee.
    Now I mentioned that there are different types of location 
data. Cell site information is generated in the ordinary course 
of business whenever a user sends or receives a phone call or a 
text message. It does not provide pinpoint location information 
for a phone. Rather, these records indicate which cell tower 
handled a particular communication.
    Because tower spacing varies widely across a range of 
locations from rural to suburban to urban settings, so does the 
area covered by each tower. And as a result, cell site location 
information may place a phone on a given city block, or it may 
only indicate a very large area of several square miles in 
which a phone was apparently located at the time of a 
communication.
    Contrast this with precise location information. This 
separate class of data, which includes but is not limited to 
GPS, is different not only in its level of precision and, thus, 
its privacy invasiveness, but also how it is obtained. One 
significant difference is that precise location information may 
be generated even when the phone is not in active use, sending 
or receiving a communication.
    Existing law treats these two types of information, cell 
site and precise location information, very differently. Under 
ECPA, law enforcement can obtain stored cell site records--that 
is, for some period in the past--only by applying to a court 
for a so-called 2703(d) order.
    Now the standard for issuance of this, specific and 
articulable facts, is an important safeguard, and indeed, the 
executive director of the Electronic Frontier Foundation 
testified before a joint House/Senate committee this standard 
affords ``a high degree of protection.''
    The rules governing prospective collection of cell site 
information--that is, real-time collection--are a subject of 
profound disagreement among the Federal courts. Some of them 
apply this same 2703(d) standard in granting so-called ``hybrid 
orders.'' Others see a gap in the statute and have required a 
warrant because there's no other available mechanism.
    Because precise location information, by contrast, is not 
collected by wireless carriers in the ordinary course, it is 
not typically available as a stored record for past periods. 
For ongoing surveillance, ECPA provides no clear statutory 
mechanism, and as a result, the practice at the Federal level 
has been to seek a search warrant under Criminal Rule 41, based 
upon a showing of probable cause.
    Finally, as set out in more detail in my written statement, 
the current legal framework is not perfect. There are a number 
of issues that merit this Committee's attention, and I would be 
pleased to discuss those in greater detail during the Q&A.
    In summary, Mr. Chairman, existing law, especially ECPA, 
recognizes the important privacy interests at stake by putting 
meaningful legal barriers between law enforcement and users' 
location data. In doing so, current law takes the approach of 
careful calibration of legal standards rather than one size 
fits all.
    Thank you for the opportunity to appear this morning. I 
look forward to your questions.
    [The prepared statement of Mr. Eckenwiler follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    


                               __________
    Mr. Sensenbrenner. Thank you.
    Mr. Modaferri? Could you please press the voice button?

               TESTIMONY OF PETER A. MODAFERRI, 
         INTERNATIONAL ASSOCIATION OF CHIEFS OF POLICE

    Mr. Modaferri. Good morning, Chairman Sensenbrenner, 
Ranking Member Scott, and Members of the Subcommittee.
    Thank you for this opportunity to discuss the role that 
geolocation information plays as evidence in criminal 
investigations and its importance in law enforcement's effort 
to seek justice and public safety in the 21st century.
    It is from the vantage point of being a detective for 40 
years and currently chief of detectives and longtime chairman 
of the IACP's Police Investigative Operations Committee that I 
have seen a great deal of--a great and growing value of 
geolocation information to criminal investigations. Two issues 
have arisen over the past 10 years, which have increased this 
value significantly--globalization and wrongful convictions.
    When this information is obtained in early stages of 
investigation, it provides fundamental building blocks on which 
successful cases may rest. Requiring probable cause in the 
initial stage of investigation to obtain certain types of 
geolocation information would make it significantly more 
difficult to solve crimes.
    Investigative issues of time, technology, and process must 
be addressed in a way that allows us to proceed from the 
initial stages of an investigation, where little is known and 
nothing can be assumed, to a point where investigators 
establish probable cause.
    The classic questions presented in investigations--who, 
what, where, when, why, and how--can be answered with 
geolocation evidence. To learn facts and make valid 
assumptions, investigators use available geolocation evidence 
as a filter to help corroborate or refute statements and 
conclusions at any time during investigation, to confirm or 
dismiss alibi statements or claims of witnesses, and to act 
as--for stored times and places, it can be the only witness at 
a crime scene.
    Geolocation information gives us more than the ability to 
solve crime. It can prevent wrongful arrest by revealing the 
suspect was not at the scene of the crime. Mistaken 
identifications are a leading cause of wrongful convictions.
    It can provide us with accurate time and place evidence 
that can confirm or refute identifications, confessions, and 
inaccurate testimony. Justice and public safety in the 21st 
century is a new ballgame. Today's criminal investigators are 
more mobile than ever. That makes law enforcement access to 
geolocation information all the more important.
    Law enforcement must take advantage of geolocation 
information and location-based information just as the private 
sector does. Smartphones, mobile devices, GPS, and preinstalled 
technology like OnStar are available with more location 
technology evolving at a rapid pace.
    Technologies generate--also generate historical data and 
business records from which location information can be 
derived. E-ZPass, credit card, and debit transactions are 
examples.
    If we do not have standards of access in place to ensure we 
can get location evidence early in a case, then law enforcement 
will miss out on the productivity impact of advancing 
technology. That affects our ability to do our jobs the best we 
possibly can.
    An example that demonstrates this type of importance of 
geolocation information was a bank robbery case in the Rockland 
County area. In the area around Rockland County, there were 
seven bank robberies. We had no success in identifying the 
perpetrators of those crimes until a witness came forward. She 
was a victim of one of the crimes, and she was at a gas station 
and saw a person who she believed was one of the robbers. And 
she was able to take a photograph of that person's car, and it 
had dealer license plates on it.
    Using a subpoena, the detectives were able to get a 
possible identity on the person who purchased that car. Police 
then focused on the--with the subpoena on the basis of 
subscriber information and phone numbers. That was followed by 
a so-ordered subpoena, which produced historical cell site 
locations. Then a trap and trace pen register surveillance with 
location authorization was established.
    Utilizing probable cause, we then attached a GPS device. 
The result was an arrest of the suspects immediately after 
their next robbery, while they were holding the proceeds of the 
crime.
    At the beginning of the case, standard identification 
procedures were of little value, and there were no suspects in 
the case. A witness opened a criminal investigation. To build 
the case, subpoenas for stored cell phone call detailed records 
with location information were issued once we had that lead.
    The subpoenas produced suspects and locations that were 
essential to reach probable cause. Throughout the 
investigation, location information revealed and confirmed the 
activities of the true perpetrators. Not only did it help 
identify the right people, it resolved a misidentification and 
prevented a wrongful arrest.
    To conclude, Mr. Chairman, geolocation information has 
become an essential building material in the construction of 
many criminal investigations. It could be the concrete that 
cements eyewitness identification, the criminal, and the crime 
scene together.
    To gather and integrate this information in the initial 
stages of an investigation, we must have reasonable balance 
between the standards of access required to obtain location 
evidence and the need of the investigation to proceed. Just as 
important, law enforcement must be able to receive these facts 
in a rapid and complete response from the holder of the 
information record.
    Requiring probable cause to get basic limited information 
about a person's historical location could make it 
significantly more difficult for us in law enforcement to solve 
crimes and seek justice.
    Thank you.
    [The prepared statement of Mr. Modaferri follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    


                               __________
    Mr. Sensenbrenner. Thank you.
    Ms. Crump?

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

    Ms. Crump. Good morning, Chairman Sensenbrenner, Ranking 
Member Scott, Chairman Emeritus, and Members of the 
Subcommittee.
    Thank you for the opportunity to testify on behalf of the 
American Civil Liberties Union.
    Over the past week and a half, our Nation has been gripped 
by the horrific events in Boston. Today, our thoughts remain 
with the victims of that tragedy and with their families.
    Although details of the investigation are still unfolding, 
it is apparent that electronic surveillance played an important 
role in locating and tracking the suspected perpetrators. That 
is as it should be. No one denies that electronic surveillance 
can be an important tool for law enforcement and, indeed, in 
horrific and rare events, such as what transpired in Boston, an 
essential one.
    That is why the ACLU has always supported an exemption in 
the law permitting immediate disclosure of location data in aid 
to agencies in such life and death situations. However, in 
routine investigations, law enforcement agencies, such as the 
local police and the FBI, should secure a warrant based upon 
probable cause to obtain mobile phone location data.
    The ACLU supports the Geolocation Privacy and Surveillance 
Act because the framework it establishes allows law enforcement 
agents to access the tools they need while providing an 
independent check and balance through review by a judge, which 
will ensure that innocent Americans do not have their privacy 
violated.
    Mobile phone location technology provides law enforcement 
agents with an invasive, yet inexpensive method of tracking 
individuals over extended periods of time and unlimited 
expanses of space, as they traverse both public and private 
areas. It also makes it possible for law enforcement agents to 
identify all individuals located in a particular location, a 
valuable tool, but one that, by necessity, can reveal the 
location of thousands or even tens of thousands of innocent 
Americans.
    In many parts of the country, the police have been tracking 
mobile phones for days, weeks, or even months at a time without 
ever having to demonstrate to an independent judge that they 
have a good reason to believe the tracking will turn up 
evidence of wrongdoing.
    Mobile phone location data 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 would not and, indeed, in the 
main could not track people's movements over a long period of 
time in their car, an observation which applies with even 
greater force to the cell phones people carry with them all the 
time.
    The warrant and probable cause requirements 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.
    It is useful to identify points of agreement between law 
enforcement interests and those civil society organizations 
concerned about privacy. First, the Department of Justice 
already recommends that its agents obtain a warrant based upon 
probable cause to secure real-time precision location 
information, the very standard that the ACLU supports.
    Also, local law enforcement agencies, such as the County of 
Hawaii, Wichita, and Lexington, Kentucky, already secure 
warrants across the board. Thus, merely codifying a 
longstanding Department of Justice policy would help protect 
Americans' privacy.
    Second, we agree with Mr. Eckenwiler, as he stated in his 
written testimony, that the so-called cell tower dumps, the 
acquisition of location data of all individuals at a particular 
location, pose especially grave privacy concerns because they 
could sweep up the locations of thousands of innocent 
Americans. Like Mr. Eckenwiler, we believe the Committee should 
consider additional statutory protection, such as limits on the 
number of records or the length of time window requested or 
protocols for sealing or destroying the documents obtained.
    We also agree with numerous law enforcement representatives 
that the current legal standards in force are unclear. However, 
we part ways over the applicable legal standard because the 
warrant and probable cause requirement should apply across the 
board to cell phone location data.
    These requirements are especially important today, given 
the tremendous and rapid technological development over the 
past 10 years that make it easier than ever to track Americans' 
every movement. The ACLU supports passage of the GPS Act 
because it would ensure that law enforcement agents obtain a 
warrant based upon probable cause to access mobile phone 
location data subject to appropriate exceptions.
    Thank you.
    [The prepared statement of Ms. Crump follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    


                               __________
    Mr. Sensenbrenner. Thank you.
    Mr. Blaze?

            TESTIMONY OF MATTHEW BLAZE, PROFESSOR, 
                   UNIVERSITY OF PENNSYLVANIA

    Mr. Blaze. First of all, thank you. Thank you, Chairman 
Sensenbrenner and Members of the Subcommittee, for the 
opportunity to testify here today.
    The focus of my remarks will be on the technology of mobile 
location tracking and the trends that we can expect mobile 
location technologies to follow as these devices become a more 
ubiquitous and critical part of our daily lives into the 
future.
    I think the most important thing for the Committee to 
consider in drafting legislation regulating the use of location 
information from mobile devices is that this is a very rapidly 
moving area of technology, enjoying continued and explosive 
growth. And that will continue for the foreseeable future and 
beyond.
    I'd like to talk for just a few moments about how cellular 
mobile devices operate. Of course, as you know, cellular 
telephones and cellular data devices, such as tablet computers, 
operate not with a wired connection, but rather with a radio 
connection.
    The radio connection is provided by a service provider that 
operates a network of base stations throughout its geographic 
coverage area. These base stations are alternatively called 
cell sites or cellular base stations or sometimes towers or 
sector antennas. The terms are approximately equivalent for our 
purposes here.
    Unfortunately, the capacity of any given base station is 
limited by two fundamental factors. The first and today less 
important one is the radio range over which they can operate. A 
cellular telephone under ideal conditions in a clear radio 
spectrum may be able to operate with a base station as far as a 
mile or two from the cellular handset.
    But the more important limitation is the spectrum capacity 
of the frequency bands that are used by the mobile service 
providers. Each base station has a limited number of calls that 
it can process, a limited number of data services that it can 
handle simultaneously from different customers.
    So as cellular and mobile technology has grown and become 
so important, as we all get different mobile devices and use 
them more often for more things, with higher bandwidth 
broadband connections, service providers have had no choice but 
to reduce the geographic area over which each base station 
operates so that smaller cell towers, smaller antennas cover a 
smaller number of users who can take advantage of the services 
that they've provided.
    And this trend has over the last 15 years been continuously 
in the direction of higher and higher density. We have provided 
more spectrum to mobile service providers, but the amount of 
spectrum is ultimately limited not by regulation, but by 
physics, and so really the only direction in which growth can 
happen at the explosive pace that it's occurring is by making 
the base stations serve a smaller and smaller geographic area.
    One of the trends is the use of small cell sites that cover 
very small geographic areas, such as an individual home or an 
individual office. These are sometimes called microcells or 
picocells or femtocells. Various service providers offer them. 
These may cover an area as small as this hearing room or our 
homes.
    Because of this increased density and because of this 
increased amount of usage, it's become more difficult to 
meaningfully distinguish between cell site location and other 
geolocation technologies, such as vehicle-based GPS and precise 
location technologies that are used for E911 services, 
particularly if we consider how revealing this information is 
about our daily lives.
    Unlike vehicle-based GPS surveillance, we carry our 
cellular telephones with us everywhere we go. We have them on 
at all times. We take advantage of data services that cause 
them to send and receive data without us being aware that it's 
occurring in many cases. And we can use them indoors and in 
private spaces, unlike GPS devices, which generally work only 
outdoors with a view to the satellite.
    And then, finally, the precision with which these can be 
located is increasing as the density improves, and that trend 
is going to continue because service providers have no choice 
but to improve density if they want to provide more services--
--
    Mr. Sensenbrenner. The gentleman's time is expired.
    Mr. Blaze. Oh, I'm sorry. My light wasn't working.
    [The prepared statement of Mr. Blaze follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    


                               __________
    Mr. Sensenbrenner. That light isn't working. So sorry about 
that.
    Mr. Blaze. Thank you, Mr. Chairman.
    Mr. Sensenbrenner. Okay. The Chair will enforce the 5-
minute rule during the question time and first recognizes the 
Chair of the full Committee, the gentleman from Virginia, Mr. 
Goodlatte.
    Mr. Goodlatte. Thank you, Chairman Sensenbrenner, and thank 
you for holding this hearing.
    I regret that I wasn't able to be here at the outset. So I 
am going to use my question time to offer my observations about 
geolocation issues, and I will start by saying that the 
Electronic Communications Privacy Act, or ECPA, provides a 
myriad of protections. Keep in mind that it was enacted well 
before our everyday use of cell phones and the Internet, yet 
ECPA sets forth the rules that prevent unauthorized Government 
access to certain electronic records.
    Even when it became law in 1986, ECPA, perhaps 
unintentionally, set the standards for the court-authorized 
disclosure of geolocation information. A suspect's location is 
often only a piece of the puzzle for law enforcement, but 
sometimes that piece is a matter of life or death.
    In 2001, enhanced or E911 was deployed in the U.S. to 
associate a location with the origin of a phone call. 
Geolocation is critical in cases of child abductions, lost 
hikers, and missing Alzheimer's patients where every minute 
counts.
    In many other investigations, geolocation is a vital 
building block in order to prevent or curtail a crime. Many 
criminals use false identities to impede law enforcement so 
they may complete their crimes and commit more. In every case, 
the identity of the criminal is essential for the investigation 
to move forward. The geolocation of dangerous fugitives is 
crucial, particularly after they are convicted of crimes like 
rape and murder.
    Today, many civil liberty concerns center on the abundance 
of new technological devices and a lag in the law keeping pace 
with this new technology. For instance, the law is well settled 
when it comes to police entering a home to arrest someone or 
conduct a search. However, complexities arise when, by the use 
of cell phones, we are permitting communication providers to 
record our location to route a phone call.
    We also allow them to record our location in order to 
advertize to us or send us instant coupons on our cell phones 
when we subscribe to a certain app. Cellular providers often 
use cell tower data, but also use GPS technology and our public 
Wi-Fi connections to determine where we are.
    In updating our Federal surveillance laws, Congress must 
weigh our privacy interests with the needs of law enforcement 
without stifling commerce and innovation. Last week, the 
Department of Justice briefed Judiciary staff on its current 
practices in seeking geolocation data. I was encouraged to 
learn that the department seeks a court order for every type of 
geolocation information it acquires.
    At a minimum, the department obtains what is called a 
2703(d) Federal court order when it seeks historical cell site 
data on a particular cell phone. This cell site data only 
provides very general location information, which can vary 
widely.
    On the other side of the spectrum, the Department of 
Justice obtains a search warrant from a Federal judge when it 
seeks very accurate real-time location information based on GPS 
satellite technology. Such search warrants are based on 
probable cause, the same standard specified in the Fourth 
Amendment to our Constitution.
    While these practices are encouraging, current DOJ 
practices do not carry the same weight as Federal statutes. The 
privacy interests we have in our cell phones are being 
protected today through a patchwork of Federal laws. Our task 
is to reexamine current laws and give clarity to individuals, 
corporations, innovators, and law enforcement.
    I look forward to working with my colleagues to examine 
geolocation privacy and surveillance. Our efforts must protect 
individual liberties by providing clear guidelines for when and 
how geolocation information can be accessed and used.
    And I thank Chairman Sensenbrenner and yield back.
    Mr. Sensenbrenner. I thank the full Committee Chair.
    The Chair recognizes the Ranking Member, Mr. Scott of 
Virginia.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Modaferri, you indicated--you talked about a crime 
where somebody committed seven robberies. Was any attempt made 
to get historic data at those locations to see if one person 
had been in all seven sites at the particular times?
    Mr. Modaferri. You mean a general subpoena for anybody in 
that area? No.
    Mr. Scott. Well, if you had--if you got a document--if you 
got a tower dump from the seven different sites and cross-
referenced and found that only one person had been at all seven 
sites at the same time, is that--would that have been possible 
information to get?
    Mr. Modaferri. Not logically because all 7 robberies, the 
robberies were between 3 and 6 months apart in different 
locations in a tri-State area.
    Mr. Scott. How long is the tower information kept?
    Mr. Modaferri. That I don't know.
    Mr. Scott. Anybody know how long tower information is kept?
    Mr. Eckenwiler. Ranking Member Scott, it varies according 
to provider. Some keep that information for a few months. Some 
keep it for up to a year or two.
    Mr. Scott. And so, if it was one of the services that kept 
it for a year or two, then you could have gotten information 
from the seven different locations. Is that true?
    Mr. Eckenwiler. If there were, in fact, network events that 
would be represented. Certainly when the records are available, 
the Government can compel them. Whether or not there would be a 
commonality across all seven of those locations is dependent 
not just on whether the phone was present, but whether there 
was an active communication like the sending or receipt of a 
text message or a phone call.
    Mr. Scott. The information that you are near a site is not 
recorded?
    Mr. Eckenwiler. When the Government obtains a tower dump 
that you referred to, what is produced is only a set of 
affirmative network activities, like the receipt of a call. A 
phone call is answered. A phone call is placed. It does not 
reflect the presence of all phones that are simply on but not 
in active communication at that time.
    Mr. Scott. Is that because the information is not available 
or because it wasn't--you can't get it?
    Mr. Eckenwiler. It's not the practice of the carriers to 
log that. There is not a real technical reason to retain 
information at that level of granularity.
    Mr. Scott. How expensive is it to the either law 
enforcement, if they pay for it, or the provider to provide a 
tower dump?
    Mr. Eckenwiler. I'd say a tower dump is fairly burdensome 
for the providers to disclose to law enforcement. And in 
practice, what often happens is law enforcement will obtain an 
order for a certain set of information, and there is often a 
negotiation, as there is in other cases--grand jury subpoenas 
and administrative subpoenas--to see if the scope of the 
request cannot be narrowed.
    Mr. Scott. Ms. Crump, we were talking about probable cause 
before you get all of this information. Probable cause is 
usually that a crime has been committed and the--what would be 
the standard after the crime has been committed to try to catch 
people?
    Ms. Crump. Are you contemplating the fugitive-type 
situation?
    Mr. Scott. Yes.
    Ms. Crump. I think that the civil liberties groups that 
support a probable cause requirement believe that in general 
the standard should be probable cause that a crime has been 
committed but also agree that it is important that fugitives be 
apprehended and don't have an objection to cell phone location 
data being used in that circumstance.
    So a standard, for example, that there was an arrest 
warrant out for someone and that location information was 
useful to effectuate that arrest warrant is not something that 
anyone would object to.
    Mr. Scott. There is an expectation that the Government 
isn't following you everywhere you go. How would you deal with 
emergency situations?
    Ms. Crump. We support an exception such as that in place in 
the GPS Act. Earlier, Mr. Goodlatte set out a number of 
examples of emergency situations--a child abduction, a lost 
hiker, and situations like that. I think everyone agrees that 
in those types of circumstances, it is important that law 
enforcement be able to act immediately and that if there's not 
enough time to secure a warrant, that they should be able to 
proceed on an emergency basis and go ahead and locate someone.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Sensenbrenner. Thank you.
    The junior Chairman emeritus of the Committee, the 
gentleman from Michigan, Mr. Conyers?
    Mr. Conyers. Well, I thank the senior Chairman emeritus for 
recognizing me.
    This is an unusual hearing in that I can't remember ACLU 
ever quoting Justice Alito before, nor can I remember all of 
the emeritus being on the same bill of a Republican Member of 
the Committee, and the general agreement actually among the 
four witnesses. The only difference of view that I have been 
able to note is the difference between a probable cause 
standard and a 2703(d).
    And I was wondering do you firmly hold to that, to the 
2703(d) order, Mr. Eckenwiler? Or are you prepared to 
reluctantly go along with the probable cause standard that is 
in the bill?
    Mr. Eckenwiler. Mr. Conyers, I think, as Mr. Modaferri 
pointed out, one of the difficulties with adopting a probable 
cause standard for that less precise class of location data, 
cell site information, has significant potential to impair law 
enforcement investigations.
    Think of this as the building block of--it's one of the 
building blocks for an investigation. In some cases, it may be 
used in conjunction with bank records. It may be used in 
conjunction with telephone toll records. There are various 
pieces that go into an investigation, especially at those 
earliest stages when probable cause has not yet been developed.
    And so, I think there would be significant costs to law 
enforcement if an across-the-board probable cause standard were 
to be adopted. But I would also refer you to the language I 
quoted earlier from Jerry Berman, the executive director of 
EFF, testifying before joint House/Senate Judiciary Committee 
hearing.
    Pointing out that the 2703(d) standard is, in fact, 
meaningful, Mr. Berman pointed out in his testimony court order 
protection will make it much more difficult for law enforcement 
to go on fishing expeditions. And he pointed out in that same 
testimony that law enforcement would have to meet this 
particular showing, this need to establish access to these 
records based on specific and articulable facts.
    So law enforcement has to tell a story. It's not like 
certain other kinds of compulsory process, a grand jury 
subpoena, which merely issues from the prosecutor. It's not 
like a pen register order to monitor the noncontent activity 
on, say, a telephone line, the numbers dialed out or in. Those 
kinds of orders, under the existing statute, simply require a 
certification to a judge, who has no discretion.
    2703 is different. A factual showing has to be made to the 
court, which the court may then weigh and, based upon that 
weighing of the showing, may grant or deny the application.
    Mr. Conyers. Professor Blaze, I know you have a slightly 
different view?
    Mr. Blaze. So I think this is one of the areas where Mr. 
Eckenwiler and I disagree. The gap between these different 
technologies is narrowing, I think, sufficiently that we can't 
really make meaningful distinctions between how revealing they 
are.
    So if we understand GPS location technology to be revealing 
enough to warrant one standard, I don't see any technological 
basis to understand cell site location as being sufficiently 
less precise or less revealing to merit a different standard.
    The gap is narrowing in how precise they are, and in some 
cases, cell site location can reveal location information when 
vehicle-based GPS would be unable to, such as when the target 
is indoors.
    Mr. Conyers. Well, I guess the probable cause standard 
based on the Fourth Amendment is more compelling. But you know, 
when you read these off the top, Chairman Sensenbrenner, you 
could probably use either one to accomplish your goal.
    And I thank you for the time.
    Mr. Sensenbrenner. I thank the gentleman from Michigan.
    The gentleman from Louisiana, Mr. Richmond?
    Mr. Richmond. Thank you, Mr. Chairman.
    Let me see, my first question, and I guess I will direct 
this question to Ms. Crump. Do cell phone users ever find out 
that their geolocation information has been divulged?
    Ms. Crump. Thank you for the question.
    That highlights one of the key problems with this form of 
tracking. On occasion, cell phone users do learn that they are 
tracked. But in order for that to happen, in general, they have 
to be prosecuted, and then that evidence has to be used in the 
case-in-chief.
    That means that whenever someone is tracked and they are 
innocent or the Government chooses not to disclose that 
information, individuals never learn they were subject to that 
technique. That has had the effect of meaning that for a long 
time, the Government's policies and procedures for engaging in 
cell phone tracking have been shrouded in secrecy.
    And we believe that it's important that individuals who are 
subject to this form of surveillance receive notice, at least 
after the fact when the investigation is closed, because that 
will increase the public's awareness and information about how 
the Government is balancing civil liberties and law enforcement 
interests.
    Mr. Richmond. Now is that--is your position pretty 
consistent with what they do with wiretaps?
    Ms. Crump. Yes, that's true.
    Mr. Richmond. So after a wiretap, they do disclose to the 
person that they were subject to a wiretap?
    Ms. Crump. Yes. That's the case.
    Mr. Richmond. Do they also disclose that to the person who 
may have been on the phone with someone on a wiretap that they 
were--that their call was intercepted or that you all don't do 
that? Do you know that, Mr. Eckenwiler?
    Ms. Crump. The answer--oh.
    Mr. Eckenwiler. Yes. The--in general, the requirement under 
Section 2518 of Title 18 requires that notice be given. Often 
the court may direct the scope of the disclosure, but it is not 
simply limited to the person who is named in the wiretap order.
    So, in direct response to your question, yes, other 
communicants with whom that person has, say, spoken on the 
phone would also typically receive notice.
    Mr. Richmond. Is there a timeframe on that notice or----
    Mr. Eckenwiler. The statute, Title III, the Wiretap Act 
currently says that the--what's called the inventory must be 
given within 90 days after the termination of the wiretap, 
although the delay of notice may be extended for good cause 
shown to the issuing court.
    Mr. Richmond. And I don't know if we discussed it, but I 
will go back to you, Ms. Crump. What standard do you think 
should be applied to the one-time ping or the real-time looking 
at where a person is once?
    Ms. Crump. Our view is that a one-time real-time tracking 
ping should also require probable cause. The reason for that is 
you do not know, generally speaking, when you conduct that ping 
whether someone is going to be in a, for instance, a private 
place where they have a reasonable expectation of privacy. And 
the better rule is a probable cause requirement across the 
board.
    Mr. Richmond. We have mentioned a couple of times about 
reasonable expectation of privacy, and I guess as technology 
evolves, at some point, do you think there is going to be a 
discussion that if you have your cell phone with you, you 
probably don't have a reasonable expectation of privacy?
    Ms. Crump. No. I don't think people should have to give up 
their privacy rights simply because today's modern era 
essentially requires people to have a cell phone in order to 
participate. It has traditionally been the case that 
individuals have been able to move around public and private 
places without being subject to the continuous monitoring and 
permanent recording of their movements.
    I think that's an important freedom and that it shouldn't 
be sacrificed just because we now have cell phones.
    Mr. Richmond. Well, you mentioned the recording of their 
movements, and I guess that one is probably a lot easier than 
the real-time where you are. And I wouldn't want anyone 
recording my movements, but do I have a reasonable expectation 
of privacy that if I was in the audience, no one would know I 
was here?
    I mean, as it evolves, the question is how realistic it 
becomes and how reasonable that expectation is? And that is why 
I pose it because at some point, I think that question will 
become very relative to all of the conversations that we have 
in terms of our privacy.
    Mr. Eckenwiler, did you want to add to that?
    Mr. Eckenwiler. It's certainly true, Congressman Richmond, 
that there are different kinds of location data, many of which 
are overtly public. People who post on social media and choose 
to turn on their location disclosure feature, I think it would 
be abundantly clear that there is no expectation of privacy 
that attaches to that kind of location information.
    Mr. Richmond. I thank you, and I yield back, Mr. Chairman.
    Mr. Sensenbrenner. I thank you.
    The gentlewoman from California, Ms. Chu?
    Ms. Chu. Thank you, Mr. Chair.
    For the panel, I would like to ask this question. We trust 
law enforcement to use their own discretion in deciding whom to 
physically follow around for extended periods of time. Why 
can't law enforcement be trusted to exercise their discretion 
when engaging in similar tracking using GPS systems or cell 
phones?
    Isn't using electronic tracking just more efficient, or is 
there something fundamentally different about electronic 
tracking? Ms. Crump?
    Ms. Crump. Thank you for the question.
    There is something fundamentally different about electronic 
tracking. Physical tracking is by necessity limited by officer 
resources. And because that form of tracking requires the 
expenditure of tremendous resources, that itself acts on a 
check against abusive forms of that tracking.
    In contrast, electronic tracking is wholly concealed. 
Individuals don't know it's happening, but it can also be done 
in a very resource-efficient way, which means that legal 
protections against it are all the more important.
    Ms. Chu. Mr. Blaze?
    Mr. Blaze. If I might just add to that? And the electronic 
tracking, unlike physical surveillance, follows us wherever we 
go, particularly cell phone-based electronic tracking.
    It follows us indoors into private spaces, in places where 
physical surveillance would be unable to track somebody, at 
least undetectably. So there is a technological distinction as 
well.
    Ms. Chu. Thank you.
    Mr. Eckenwiler. Thank you for the question, Congresswoman 
Chu.
    I agree that a probable cause standard is appropriate for 
real-time GPS or other precise location data. Let me give you a 
couple of reasons.
    One is that it is not event based. Cell site information is 
derived from specific overt user activity, a call, the sending 
of a text message. And so, that's generated in the network. The 
network has to know about that.
    The network can't not know about it anymore than I can dial 
a phone number without telling the phone company what number I 
want to call. It just is an innate part of the transaction. But 
the acquisition of precise location information may be done, as 
I indicated in my opening remarks, even when there is not an 
active communication in progress on the device.
    What's also I think significant here, even before anybody 
had cell phones, the Supreme Court indicated in a case in the 
early 1980's with respect to physical tracking devices that 
when a tracking device actually reveals the presence of 
something within a protected area that's not otherwise 
observable by the police, that that can implicate a reasonable 
expectation of privacy. That's the Karo case, K-a-r-o.
    Now there's an important distinction here, and that is 
between whether the item is merely in a protected area or 
whether the information about it reveals that it's there. So 
it's not just enough that something is in some area at the time 
that location data like cell site is acquired. But if the 
information is so precise as to place it inside a particular 
home, which is what happened with the physical GPS tracker in 
Karo, then, yes, indeed. If you apply that same logic to cell 
phone GPS, it would follow that there's an expectation of 
privacy.
    Ms. Chu. Yes, in fact, I wanted to follow up by saying that 
the majority opinion in Jones found that a search occurred 
because law enforcement had committed a trespass by fixing this 
GPS tracking device to a private vehicle without a valid 
warrant. Does that means there is less of a concern when 
location tracking is done without fixing a device, such as 
using cell phone location data?
    Ms. Crump?
    Ms. Crump. No, I don't think there's any less of an 
expectation of privacy. The one opinion did focus on trespass, 
but five other justices focused on the nature of the intrusion 
of being tracked. To be sure, that case involved attachment of 
a GPS device, but I don't think, practically speaking, whether 
the technological method is attachment of a GPS device or a 
cell phone makes any difference.
    Although I'm always glad when there's agreement between the 
Department of Justice and the ACLU on a question, however we 
get there, I do think the distinction between whether the 
location data is generated by the network or an act of 
intrusion into the phone is overly formalistic, and the more 
common sense approach is to focus on the privacy intrusion and 
what people's expectations are.
    Mr. Sensenbrenner. The gentlewoman's time has expired.
    And the Chair yields himself 5 minutes to wrap up.
    Last year, the court handed down the Jones decision, and 
about the only thing the justices could agree upon was that 
there was a search that occurred. And then they were all over 
the map under what circumstances, a judicial review, and I 
don't want to talk about what type of specific review would be 
or what kind of warrant or 2703 device would be.
    But I would like to each ask of the witnesses whether they 
think it would be wise for Congress to try to set some markers 
on what needs to be done in advance, if anything, with various 
types of use of GPS equipment, or the topic of our first 
hearing on ECPA, largely to prevent a court decision from 
coming down years from now which might reopen or place in 
jeopardy cases that already had been filed.
    And I would like to ask each of the four witnesses to 
answer that question. Meaning do we need a bill, and what 
should the bill contain?
    Mr. Eckenwiler. Thank you, Mr. Chairman.
    Just so I understand the question, is this directed to 
physical GPS, or do you still have in mind phone GPS?
    Mr. Sensenbrenner. Both.
    Mr. Eckenwiler. As to physical GPS, such as that that was 
at issue in the Jones case, it seems to me the Supreme Court 
has laid down a pretty clear marker, and there is already--at 
least in Federal Rule 41, there has been since 2006 a set of 
procedures for applying for and obtaining a warrant to install 
and use a physical tracking device. So it's not clear to me 
that there's a particular need for this Committee to act in 
that area.
    Mr. Chairman, you mentioned prior cases, cases that may 
have been investigated or charged prior to a particular court 
decision. What's interesting is that in the roughly 14 months, 
15 months since Jones came down, that issue has come up across 
the country in various courts. And generally speaking, Jones 
has not resulted in the suppression of evidence for pre-Jones 
law enforcement conduct. The short answer is there's a good 
faith exception.
    And then to respond briefly to your question about phone 
location information, I would simply reiterate what I said 
earlier. I think that would come at significant expense to 
important law enforcement equities. As to cell site location 
information, I don't think that it would be inappropriate at 
all to clarify, and in fact, I've mentioned in my list of areas 
for the Committee's further inquiry the potential need to amend 
Rule 41 for prospective GPS acquisition on phones.
    Mr. Sensenbrenner. Mr. Modaferri?
    Mr. Modaferri. Thank you.
    I would say that from my perspective as a detective, we do 
need clarification. We do need an act to clarify what Mr. 
Eckenwiler's--the points that Mr. Eckenwiler made because we 
are acting somewhat in the dark in certain areas. And as 
technology evolves, we need a law that can address things as it 
changes.
    But I wouldn't--I'm not a lawyer so I won't get into the 
details of Mr. Eckenwiler.
    Mr. Sensenbrenner. Ms. Crump?
    Ms. Crump. The short answer to your question is, yes, it is 
essential that Congress act. It took many years for the court 
to even reach the Jones decision. GPS tracking had been going 
on for a long time, and it only partially answered the 
question. And it's important that this body step in and clarify 
the law so that everyone understands what their rights are.
    Second, I think law enforcement and civil liberties 
organizations such as the ACLU at the least agree that the 
current system is unclear and in a state of chaos with judges 
applying different standards to identical forms of tracking in 
different States and that it's important that the law be 
uniform.
    Mr. Sensenbrenner. Mr. Blaze?
    Mr. Blaze. Thank you.
    I'm also not an attorney. So I will answer from the 
technical perspective. Any legislation that attempts to 
distinguish between the revealing and intrusiveness of 
vehicular GPS, precise cellular geolocation, and cell site 
geolocation will be doomed to become increasingly meaningless 
as those technologies converge in their precision.
    Mr. Sensenbrenner. That concludes this hearing.
    Without objection, all Members will have 5 legislative days 
to submit additional written questions for the witnesses and 
additional materials for the record.
    The gentleman from Virginia?
    Mr. Scott. Mr. Chairman, I ask unanimous consent that a law 
review article by Stephanie Pell, published in the Berkeley 
Technology Law Journal, be entered in the record.*
---------------------------------------------------------------------------
    *See Appendix.
---------------------------------------------------------------------------
    Mr. Sensenbrenner. Without objection.
    And without objection, the hearing is adjourned.
    [Whereupon, at 11:06 a.m., the Subcommittee was adjourned.]

                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

   Material submitted by the Honorable Robert C. ``Bobby'' Scott, a 
  Representative in Congress from the State of Virginia, and Ranking 
   Member, Subcommittee on Crime, Terrorism, Homeland Security, and 
                             Investigations

































































































































































                                

        Questions for the Record submitted to Mark Eckenwiler, 
                   Senior Counsel, Perkins Coie LLP*
---------------------------------------------------------------------------
    *The Subcommittee had not received a response from this witness at 
the time this hearing record was submitted for printing, September 24, 
2013.









                                

     Response to Questions for the Record from Peter A. Modaferri, 
             International Association of Chiefs of Police









                                

      Response to Questions for the Record from Catherine Crump, 
         Staff Attorney, American Civil Liberties Union (ACLU)*
---------------------------------------------------------------------------
    *The Subcommittee had not received a response from this witness at 
the time this hearing record was submitted for printing, September 24, 
2013.









                                

   Response to Questions for the Record from Matt Blaze, Professor, 
                       University of Pennsylvania







                                 
