[Congressional Record Volume 162, Number 81 (Monday, May 23, 2016)]
[House]
[Pages H2885-H2888]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            KELSEY SMITH ACT

  Mr. WALDEN. Mr. Speaker, I move to suspend the rules and pass the 
bill (H.R. 4889) to amend the Communications Act of 1934 to require 
providers of a covered service to provide call location information 
concerning the telecommunications device of a user of such service to 
an investigative or law enforcement officer in an emergency situation 
involving risk of death or serious physical injury or in order to 
respond to the user's call for emergency services, as amended.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H. R. 4889

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Kelsey Smith Act''.

     SEC. 2. REQUIRED EMERGENCY DISCLOSURE OF CALL LOCATION 
                   INFORMATION TO LAW ENFORCEMENT.

       Section 222 of the Communications Act of 1934 (47 U.S.C. 
     222) is amended--
       (1) in subsection (d)--
       (A) in paragraph (4), by redesignating subparagraphs (A) 
     through (C) as clauses (i) through (iii), respectively;
       (B) by redesignating paragraphs (1) through (4) as 
     subparagraphs (A) through (D), respectively;
       (C) by striking ``Nothing in this section'' and inserting 
     the following:
       ``(1) Permitted disclosures.--Nothing in this section''; 
     and
       (D) by adding at the end the following:
       ``(2) Required emergency disclosure of call location 
     information to law enforcement.--Notwithstanding subsections 
     (a), (b), and (c), at the request of an investigative or law 
     enforcement officer, a provider of a covered service shall 
     provide to such officer the call location information, or the 
     best available location information, of a telecommunications 
     device that is--
       ``(A) used to place a 9-1-1 call requesting emergency 
     assistance; or
       ``(B) reasonably believed to be in the possession of an 
     individual that the law enforcement officer reasonably 
     believes is in an emergency situation that involves the risk 
     of death or serious physical harm to the individual.
       ``(3) Hold harmless.--No cause of action shall lie in any 
     court nor shall any civil or administrative proceeding be 
     commenced by a governmental entity against any provider of a 
     covered service, or its directors, officers, employees, 
     agents, or vendors, for providing in good faith call location 
     information or other information, facilities, or assistance 
     in accordance with paragraph (2) and any regulations 
     promulgated under such paragraph.'';
       (2) in subsection (f)(1), by striking ``subsection (d)(4)'' 
     and inserting ``subsection (d)(1)(D)''; and
       (3) in subsection (h), by adding at the end the following:
       ``(8) Covered service.--The term `covered service' means--
       ``(A) a commercial mobile service (as defined in section 
     332); or
       ``(B) an IP-enabled voice service (as defined in section 7 
     of the Wireless Communications and Public Safety Act of 1999 
     (47 U.S.C. 615b)).
       ``(9) Investigative or law enforcement officer.--The term 
     `investigative or law enforcement officer' has the meaning 
     given such term in section 2510 of title 18, United States 
     Code.''.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Oregon (Mr. Walden) and the gentleman from Maryland (Mr. Sarbanes) each 
will control 20 minutes.
  The Chair recognizes the gentleman from Oregon.


                             General Leave

  Mr. WALDEN. Mr. Speaker, I ask unanimous consent that all Members may 
have 5 legislative days in which to revise and extend their remarks and 
to insert extraneous materials in the Record on the bill.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Oregon?
  There was no objection.
  Mr. WALDEN. Mr. Speaker, I yield myself such time as I may consume.
  Imagine that your child is missing. You know that she was abducted 
from a parking lot, but you don't know where she is now or how to find 
her. Grasping for any possible lead, you ask her cell phone carrier to 
provide the location--and just the location--of her cell phone, hoping 
that it will lead you to her, but you are told they don't release that 
information. So you wait. You rely on others to search for your child 
by foot and by air, never knowing if your child is alive or if your 
child is dead, safe, or in pain.
  This nightmare came true for Missey and Greg Smith 9 years ago last 
week when their beloved daughter went missing outside Kansas City, 
Kansas. By all accounts, Kelsey Smith--pictured here--was a vibrant and 
joyful 18-year-old girl.
  She was preparing to attend college in the fall where she planned to 
join in the marching band. Kelsey loved to sing. She was the third of 
five siblings. Tragically, her life was cut short when she was 
kidnapped from a Target parking lot in June of 2007 just 9 days after 
her high school graduation, a crime caught on the store's security 
cameras.
  Her family and her friends spent 4 anguished days searching for her, 
knowing she was in danger but unable to find her. They used every 
method they could think of to help locate her, but the one tool that 
would eventually lead to finding her body was not accessible.
  Kelsey's parents contacted her cell phone provider on the day she 
went missing and asked them to ping her cell phone in the hopes that it 
would assist them in their search. Despite repeated requests from the 
family and from law enforcement, it took 4 days before the Smiths were 
able to obtain the location data of Kelsey's cell phone--4 days, Mr. 
Speaker, nearly 100 hours of not knowing where their little girl had 
gone, where she had been taken, or if they would ever see her again. 
Yet, within 45 minutes of receiving that location data, when they 
finally got it, Kelsey's body was found. She was dead.
  When her mother testified in front of the Subcommittee on 
Communications and Technology, she spoke so bravely of the agony 
Kelsey's family endured during that time. She described their ordeal in 
painful detail. What does a parent go through when a child is missing? 
You do not eat because you do not know if your child is eating. You do 
not sleep because you wonder if your child is sleeping. It is, to quote 
Missey, ``pure hell.''
  Missey and Greg Smith have made it their mission to prevent this type 
of tragedy from ever happening again. They began facilitating safety 
awareness seminars for parents and for students. They also began to 
push for legislation to address the very problem of obtaining timely 
cell phone location data--only location data, that is all we are 
talking about here--and only during life-threatening emergencies--just 
life-and-death situations and only locational data.
  The legislation we are considering today, which is named in honor of 
their daughter, is a major step toward that goal. The Kelsey Smith Act 
requires cell phone providers to provide law enforcement with access to 
device location data in an emergency situation, when a victim is in 
danger of death or serious harm or when the device has been used to 
place a 911 emergency call requesting emergency assistance.
  This changes current law. You see, current law already permits 
carriers to provide the data, but it does not require them to. This 
places an unreasonable burden on wireless providers to determine what 
constitutes an emergency and then live with the consequences of their 
decisions, which they now must do in the case of Kelsey Smith.
  When time is of the essence, do you want a lawyer in corporate 
headquarters to agonize over the legal definition of an ``emergency'' 
or do you want the law enforcement officers, who dedicate their lives 
to keeping us safe, to make that call? I opt for those who can save 
lives.
  To date, versions of the Kelsey Smith Act have been adopted in 23 
States, but a patchwork of laws that protect some and leave others 
vulnerable is not good for the companies that must comply with this law 
or, more importantly, for the American lives that this law can and will 
save.
  You see, Mr. Speaker, the committee believes we need a consistent 
Federal law that law enforcement across the country can use. Parents 
shouldn't have to forum-shop for the most favorable law when their 
children go missing. What if it were your child?
  I have heard the privacy concerns that some say have been raised by 
this bill. We have worked diligently to make the bill as targeted as 
possible to balance legitimate privacy concerns with the importance of 
saving lives. By limiting the circumstances in which it can be used 
and, most importantly, by limiting the information that is available, 
we can ensure that it is only used

[[Page H2886]]

in cases in which it is absolutely necessary.
  Mr. Speaker, we have heard from law enforcement officers across the 
country that, when people are in emergency situations, every second 
counts, and that delay can mean the difference between life and death. 
The Kelsey Smith Act takes the burden of decisionmaking away from cell 
phone providers and places it with law enforcement, who are trained 
specifically to make this kind of determination.
  The Kelsey Smith Act has been successfully used in multiple States 
where it is already law. In fact, in Kansas, we have an infant here 
named Aubrey. Aubrey was innocently in her car seat in a car, in the 
backseat of the vehicle, when somebody carjacked the car while her 
parents were standing near it, just feet away.
  Can you imagine? Her parents are right there, and somebody jumps in 
the car and drives off with it as you stand hopelessly, unable to do 
anything as their little daughter, Aubrey, was inside.
  The local police department used the Kelsey Smith Act in Kansas to 
track the cell phone that was still in the car, and they were able to 
successfully recover the baby, Aubrey, who was unharmed, in about 30 
minutes.

                              {time}  1415

  Officer Dan Friesen credited the safe recovery to the Kelsey Smith 
Act, saying that the ``technology is very helpful to us and is made 
possible by the Kelsey Smith Law.''
  Thanks to Kelsey and Greg and Missey Smith, little Aubrey is safe in 
the arms of her family once again. In the words of her mother: ``We are 
so happy to have Aubrey home with us and can't picture life without our 
baby girl.'' Because of the Kelsey Smith Act, they do not have to.
  Mr. Speaker, this law goes beyond just kidnapping cases, however. The 
Kansas Sheriffs' Association told us it has also been used in cases of 
adults with dementia and missing people who are in danger due to lack 
of life-sustaining medication, severe weather, or other life-
threatening circumstances.
  I thank my friend from Kansas, Congressman Kevin Yoder. He has been 
tireless in his advocacy for this legislation. He first brought this 
bill to my attention last Congress and continued to push for its 
passage again this year. He has been an advocate for Kelsey and her 
family throughout the process, and this bill would not have advanced 
this far without Congressman Yoder's work.
  I also want to thank Greg and Missey Smith, who are in the gallery 
today, for their courage in the face of their tragedy. Because of their 
willingness to speak about their daughter and what happened to her, we 
are here today with the opportunity to prevent tragedies like this one 
that befell Kelsey Smith.
  Now, I think it is important to note this legislation passed out of 
the subcommittee after full hearings and through the full committee. In 
fact, it was voted unanimously out of the full committee. There were no 
voices of objection.
  This Wednesday, May 25, is National Missing Children's Day. According 
to the FBI, in 2015, there were more than 460,000 reports of missing 
children made to law enforcement in the U.S. How many of these missing 
children carry a cell phone? Even if the Kelsey Smith Act leads to the 
recovery of only one of those missing children, isn't it worth it? As a 
parent, I can tell you that, for the families of missing children, it 
certainly is.
  We have the opportunity to equip law enforcement with another tool to 
aid them in emergency situations, a tool that costs nothing and uses 
information that already exists. Let's seize this opportunity.
  Now, I know there will be those who will argue that somehow we didn't 
go far enough in privacy. Well, guess what. My State of Oregon passed 
an almost identical bill, unanimously, and it is a very blue State, Mr. 
Speaker--full Democratic house, Democratic senate, Democratic Governor. 
Not a single member objected. That is what this version of the bill is 
based on.
  Multiple other States have different reporting requirements for 
members of their law enforcement community. We honor what the States 
have done and can do. We don't take that away. We don't override that. 
They can go farther if they want in terms of what they want their State 
law enforcement officers to do or not do. We simply address the issue 
related to the telephone carriers and what they must do when called 
upon in life-and-death situations to save the lives of little girls 
like Aubrey and like Kelsey.
  Let's honor Kelsey's memory by ensuring that her lasting legacy isn't 
the story of her death but, rather, the story of how she continued to 
make a difference to save lives.
  I reserve the balance of my time.
  Mr. SARBANES. Mr. Speaker, I yield myself such time as I may consume.
  I rise in opposition to H.R. 4889.
  I do want to say the Democrats continue to support the intention 
behind this bill. What happened to Kelsey Smith is clearly a tragedy 
that should not be allowed to happen again. Her family, who have 
advocated for these changes in the law, deserve our respect and are 
true heroes. But we cannot support this effort to force the bill 
through without including the commonsense consumer protections that 
resulted from strong bipartisan work in the last Congress.
  In the 113th Congress, the Committee on Energy and Commerce passed a 
version of the Kelsey Smith Act, a version that included specific 
protections for consumers' privacy closer in line with what is required 
under the Fourth Amendment. The legislation was a negotiated outcome 
that carefully balanced the needs of law enforcement on one hand with 
the rights of consumers and privacy concerns on the other hand. These 
protections would not have in any way slowed law enforcement's ability 
to find people in an emergency. They would simply have made sure that 
consumers are protected after a search takes place. This was a good 
deal. Unfortunately, the path taken in the current Congress was 
different.
  This year's bill, the one that we are debating now, disregards the 
hard work that went into finding a bipartisan agreement on the Kelsey 
Smith Act in the last Congress. During markups in the Energy and 
Commerce Committee, Democrats offered amendments that would modify H.R. 
4889 back to what was agreed to in the last Congress. It would have 
kept the requirement that carriers provide the requested information to 
law enforcement, but the amendment would have provided a simple 
consumer safeguard. It would have required that law enforcement seek a 
court order within 48 hours after it makes an emergency request. So it 
would in no way have stood in the way of an emergency request; it would 
have just required law enforcement to seek that court order after the 
emergency request.
  Such modifications would address some of the concerns that have been 
raised regarding the potential abuse of H.R. 4889. It would not hamper 
law enforcement's ability to have quick access to lifesaving location 
data when they are presented with an emergency situation.
  We recognize that Chairman Walden was concerned that he could not 
support last year's deal, the version from last Congress, because it 
was not completely consistent with the law in his home State. That is 
why our proposal added a provision to protect existing State laws. 
Unfortunately, our efforts were rebuffed.
  We continue to stand ready to work together again, but I cannot 
support this bill in its current form without ensuring that additional 
protections are in place.
  I reserve the balance of my time.
  Mr. WALDEN. Mr. Speaker, I yield such time as he may consume to the 
gentleman from Kansas (Mr. Yoder), the proponent of this legislation 
who brought it before us.
  Mr. YODER. Mr. Speaker, I rise today to honor the life and legacy of 
Kelsey Ann Smith of Overland Park, Kansas. I rise today on behalf of 
Kelsey's Army, people all across the country who have put themselves in 
the shoes of Greg and Missey, who have also had children who have been 
abducted and understand that we need commonsense public safety laws 
like this on the books to ensure that we can save lives and ensure that 
these types of abductions and murders never happen again in our country 
without the ability to stop them as quickly as possible.
  June 6, 2016, will mark 9 years since Kelsey Smith, an 18-year-old 
Shawnee

[[Page H2887]]

Mission West student, was kidnapped in broad daylight from a Target 
parking lot by a predator who would sexually assault and murder her 
soon after. I remember it like it was yesterday. We all, in Kansas and 
in my community, felt immediately associated with the grief and pain 
that Kelsey's parents were feeling. Parents worried about their own 
children. They understood what was happening, and they wanted to help.

  So Kansans and people in my community helped search for Kelsey for 
days. As Chairman Walden so eloquently spoke in favor of this bill, it 
is an anguish to have your child be missing and you cannot do anything 
about it.
  Kelsey's mother, Missey, says that when your child is missing, as a 
parent you don't eat and as a parent you don't sleep because you don't 
know if your child is eating or sleeping. I am a father of two little 
girls. I cannot imagine the pain and suffering Missey and her husband, 
Greg, who are with us here today, have endured from Kelsey's loss. No 
parent should have to.
  So today we are going to hear different debates and arguments about 
how the bill could be changed or improved or differences could be made, 
but the reality is this law is not on the books in 28 States, and those 
children are not protected. We cannot, as a House, allow this to stand.
  So I ask my colleagues to dig deep in their heart to think about 
putting themselves in their shoes and to not block this legislation, to 
let this legislation come forward. I promise you it is popular in your 
district. I promise you a majority of Americans will support this. 
Opposing this bill is simply wrong and shameful.
  In the 9 years since Greg and Missey's daughter was taken from them, 
they have dealt with this unspeakable, horrific experience with grace 
and determination. Rather than falling into the depths of despair, like 
anyone could imagine them to do, they channeled their grief into the 
passion to help others who find themselves in Kelsey's situation. They 
traveled the United States fighting to pass State-level versions of the 
bill we are considering today, and they have done so with great 
success, with 23 States having passed a version of the Kelsey Smith 
Act.
  Today, this body will have the chance to honor Kelsey's memory and 
Greg and Missey's tireless advocacy by bringing the law to all 50 
States. In the words of Missey Smith, we have the rare opportunity to 
``save lives without it costing one cent.''
  The Kelsey Smith Act creates a narrow exception for law enforcement 
officers to gain access to limited call location information of an 
individual's cell phone in the event of an emergency, like a 
kidnapping. In those cases, every second counts.
  Unfortunately, in Kelsey's case, it took 4 excruciating days for law 
enforcement to finally obtain the location data from her cell provider. 
It took 4 days while an entire community searched for Kelsey with no 
success. It took 4 days because, under current law, providers are not 
required to provide location data. They are permitted to in an 
emergency situation, but it is up to their discretion.
  So the question for this body is: Do you want to leave this up to a 
cell phone provider, for the lawyers and the executives there to 
decide, or do you want trained law enforcement making this decision 
based upon a reasonable belief of an exigent emergency circumstance?
  It is analogous; I think we all would agree. I think the folks on the 
opposite side of the aisle would agree that there is certainly a Fourth 
Amendment right to protect your home and your dwelling, probably the 
greatest Fourth Amendment protection right of all. And yet, if an 
officer was driving by and saw an exigent circumstance, saw someone who 
was in jeopardy of physical harm or emergency, they have the ability to 
break into that home to save that life.
  This information is even less secure. It is much more in the public 
domain. A cell phone provider already has the right to release it. We 
are saying that decision should be made by law enforcement.
  What breaks my heart every time I recount Kelsey's story is, when 
finally her cell phone location information was handed over, police 
found Kelsey's body within 45 minutes. A search that floundered for 4 
days could have ended in 45 minutes. We know for a fact, as Chairman 
Walden articulated, that other lives have already been saved in States 
that have adopted this law.
  Mr. Speaker, a Federal framework is needed to save lives across the 
entire country, not just in a patchwork of States that have adopted 
this bill. It is up to this body to set that framework, which would be 
a ceiling for State legislatures to follow. If certain States feel that 
additional privacy protections, such as suggested by my colleagues 
across the aisle, must be put into place, they are well within their 
jurisdiction to do so.
  I believe any concerns articulated by others are overblown in this 
situation. As someone who has spent my career in this body fighting for 
the privacy rights of Americans--we just passed the Email Privacy Act 
419-0, and all of us supported that--and fought to modernize our Fourth 
Amendment rights with regard to email privacy, I feel comfortable in 
saying this bill strikes the right balance. It does not give you the 
information on the phone. It does not give you content. It does not 
give you anything other than the pings on the phone in the case of an 
emergency. It doesn't even give you GPS tracking. It does not infringe 
upon our constitutional rights. Any of us, as parents, would be 
thankful that we voted for this bill today, should something horrific 
happen in our lives.
  Mr. Speaker, this body often debates the merits of protecting 
Americans from the threat of harm versus giving up certain civil 
liberties. In this case, we are blessed with modern technology that 
affords law enforcement with a tool to save lives without Americans 
giving up any of their privacy.
  Now, I thank my predecessor, Representative Dennis Moore, and my 
former colleague, Todd Tiahrt of Kansas, who began this effort shortly 
after Kelsey's death. I also thank Representatives Lynn Jenkins, Mike 
Pompeo of Kansas, and my colleague from across the aisle, Emanuel 
Cleaver of Missouri, who have worked with me in this fight. I also 
thank Chairman Upton and Chairman Walden for working swiftly over the 
last month to move this important legislation forward.
  Most of all, I would like to thank the two most important people in 
this room, who advocated for this bill day after day, Greg and Missey 
Smith. But for their support and guidance, for their ability to share 
their tragedy with the world and channel it into goodness, for being 
here today and throughout the entire legislative process as we moved 
this bill forward, this movement would not be possible. So God bless 
you, Greg and Missey, and God bless Kelsey.
  Mr. Speaker, I urge my colleagues to support the bill's passage 
today. I strongly urge the Senate to waste no time in following suit. 
Let's send Kelsey's law to the President's desk this year for his 
signature so we can do something truly meaningful in a bipartisan way 
and so we can save lives.
  Mr. SARBANES. Mr. Speaker, let me say again that Democrats strongly 
support the intention behind this bill, but we cannot support it as it 
is currently drafted. We believe that we can do better.
  I urge Members to vote ``no'' on H.R. 4889.
  I yield back the balance of my time.
  Mr. WALDEN. Mr. Speaker, I yield myself such time as I may consume.
  I am, of course, disappointed that the Democrats cannot support this 
in its present form.
  The bill that we worked on last year, by the way, never made it to 
the House floor, and this one did.

                              {time}  1430

  The time is now to act. The time is now to help families find 
abducted children, parents suffering from dementia who are carrying the 
device and need help saving their lives.
  This is very narrowly written. As my colleague from Kansas (Mr. 
Yoder) said: Read the bill.
  We have. It is very narrowly written. Location, emergency only, life 
and death. You dialed 911 seeking help. States still have the ability 
to talk about all these other provisions they may want. We do not 
preclude that. We honor the right of States, local legislatures to come 
and add restrictions if they want to do that for post-action reporting, 
subpoenas, whatever they want to do.

[[Page H2888]]

  But in the meantime, can't we just save lives? Can't we just pass 
something that gives certainty to the telecommunications providers that 
when they get that law enforcement call, they have to provide that data 
of simply the location when everybody agrees that somebody's life is in 
the balance?
  I urge my colleagues to support this bill.
  Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Oregon (Mr. Walden) that the House suspend the rules and 
pass the bill, H.R. 4889, as amended.
  The question was taken.
  The SPEAKER pro tempore. In the opinion of the Chair, two-thirds 
being in the affirmative, the ayes have it.
  Mr. SARBANES. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further 
proceedings on this motion will be postponed.

                          ____________________