[House Report 114-580]
[From the U.S. Government Publishing Office]
114th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 114-580
======================================================================
KELSEY SMITH ACT
_______
May 23, 2016.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Upton, from the Committee on Energy and Commerce, submitted the
following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 4889]
[Including cost estimate of the Congressional Budget Office]
The Committee on Energy and Commerce, to whom was referred
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, having considered the same, report
favorably thereon with an amendment and recommend that the bill
as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 2
Hearings......................................................... 4
Committee Consideration.......................................... 4
Committee Votes.................................................. 4
Committee Oversight Findings..................................... 4
Statement of General Performance Goals and Objectives............ 4
New Budget Authority, Entitlement Authority, and Tax Expenditures 4
Earmark, Limited Tax Benefits, and Limited Tariff Benefits....... 5
Committee Cost Estimate.......................................... 5
Congressional Budget Office Estimate............................. 5
Federal Mandates Statement....................................... 7
Duplication of Federal Programs.................................. 7
Disclosure of Directed Rule Makings.............................. 7
Advisory Committee Statement..................................... 7
Applicability to Legislative Branch.............................. 7
Section-by-Section Analysis of the Legislation................... 7
Changes in Existing Law Made by the Bill, as Reported............ 8
Minority Views................................................... 13
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
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.''.
Purpose and Summary
H.R. 4889, Kelsey Smith Act, requires providers of a
certain wireless services to provide call location information
for the device of a person that law enforcement believes to be
in an emergency situation with a risk of death or serious
physical injury.
Background and Need for Legislation
When a cell phone connects to or communicates with the
network, whether to make a call, download data, or even receive
a push notification or background update, the cell provider
notes the approximate location using the closest cell tower and
the device's proximity to that tower. Current federal law
permits telecommunications carriers to use, disclose, or permit
access by emergency personnel to call location information for
users of their service in order to respond to a call for
emergency services.\1\ In addition, it permits carriers to
provide location information to the user's legal guardian or
immediate family when there is an emergency situation with risk
of death or serious physical harm.\2\ However, federal law does
not compel disclosure of that information to law enforcement,
leaving the decision whether to disclose to the discretion of
the carrier.
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\1\47 U.S.C. 222(d)(4)(A).
\2\47 U.S.C. 222(d)(4)(B).
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In 2007, Kelsey Smith was abducted from a Target parking
lot in Kansas in broad daylight while shopping for a birthday
gift for her boyfriend. She was 18 years old, and just nine
days past her high school graduation, preparing to attend
college in the fall. While the search for her began
immediately, law enforcement encountered difficulty in
obtaining location information from her cell phone provider.
Because the service provider did not have clear legal guidance
for the appropriate course of action, the provider spent a
great deal of time considering the various legal implications
of divulging that information. It eventually required a
subpoena to obtain the information. After four days of
searching, law enforcement located her body within 45 minutes
of receiving the device location data. Kelsey had been sexually
assaulted and murdered, her body left in the woods. Following
her death, Kelsey's parents became committed to ensuring that
no other family would endure this unnecessary delay and
prolonged agony of waiting. As Kelsey's mother, Melissa Smith,
testified before the Subcommittee on Communications and
Technology, perhaps Kelsey laid in the woods for four days
because the law needed to change.
This legislation would allow law enforcement to access
location data more quickly in order to better react to
emergencies and locate and save potential victims more quickly.
Commercial mobile service providers would be required to
provide call location information to law enforcement when the
device has been used to call 9-1-1 for emergency assistance, or
for a device that is in the possession of a user that law
enforcement believes to be in an emergency situation involving
risk of death or serious physical harm. In addition, the
legislation limits the liability for carriers that, in good
faith, are compelled to provide location data in compliance
with the law.
To date, similar legislation has passed in 22 states.\3\
The state versions of the Kelsey Smith Act have already helped
to save lives, including a case in Kelsey Smith's home state of
Kansas where a vehicle was stolen from an ATM with a baby in
the backseat. By tracking the device that remained in the car,
police were able to locate the vehicle within 45 minutes of the
crime, and the baby was recovered, unharmed. In instances like
this, every second counts, and any delay while seeking a
warrant or sworn statement could mean the difference between
whether a victim is found dead or alive.
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\3\http://kelseysarmy.org/#ks-act.
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The Kelsey Smith Act is silent as to how state and local
law enforcement may exercise the powers granted by this Act. As
employees and political subdivisions of the states, law
enforcement must abide by the policies and procedures
established within their states that govern their conduct. The
Kelsey Smith Act establishes an obligation on wireless
carriers; how and when law enforcement avails itself of the
tools provided in this Act are matters of state law.
Hearings
On April 13, 2016, the Subcommittee on Communications and
Technology held a hearing on H.R. 4889. The Subcommittee
received testimony from:
Melissa Smith, mother of Kelsey Smith, Treasurer,
Kelsey Smith Foundation.
Committee Consideration
Representative Yoder introduced H.R. 4889 on March 23,
2016.
On April 18 and 19, 2016, the Subcommittee on
Communications and Technology met in open markup session.
Chairman Walden offered an amendment incorporating liability
protection for covered providers who provided location data in
compliance with the Act. The amendment was accepted by voice
vote. The Subcommittee forwarded H.R. 4889 as amended, to the
full Committee by a voice vote.
On April 26, 27, and 28, 2016, the full Committee on Energy
and Commerce met in open markup session, where Subcommittee
Chairman Walden offered an amendment making clarifying changes
to the liability language. The amendment was adopted, and the
Committee ordered H.R. 4889 reported to the House, as amended,
by a voice vote.
Committee Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the record votes
on the motion to report legislation and amendments thereto. No
recorded votes were taken on this legislation.
Committee Oversight Findings
Pursuant to clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Committee held a hearing and made
findings that are reflected in this report.
Statement of General Performance Goals and Objectives
The goal and objective of H.R. 4889 is to ensure that
providers of certain wireless services provide location data to
law enforcement when there is an emergency that involves risk
of death or serious physical harm.
New Budget Authority, Entitlement Authority, and Tax Expenditures
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee finds that H.R.
4889 would result in no new or increased budget authority,
entitlement authority, or tax expenditures or revenues.
Earmark, Limited Tax Benefits, and Limited Tariff Benefits
In compliance with clause 9(e), 9(f), and 9(g) of rule XXI
of the Rules of the House of Representatives, the Committee
finds that H.R. 4889 contains no earmarks, limited tax
benefits, or limited tariff benefits.
Committee Cost Estimate
The Committee adopts as its own the cost estimate prepared
by the Director of the Congressional Budget Office pursuant to
section 402 of the Congressional Budget Act of 1974.
Congressional Budget Office Estimate
Pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives, the following is the cost estimate
provided by the Congressional Budget Office pursuant to section
402 of the Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 20, 2016.
Hon. Fred Upton,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 4889, the Kelsey
Smith Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Kathleen
Gramp.
Sincerely,
Robert A. Sunshine
(For Keith Hall, Director).
Enclosure.
H.R. 4889--Kelsey Smith Act
H.R. 4889 would require telecommunications providers, upon
request, to share data about the location of a call placed from
a mobile phone or through an Internet voice service under
certain circumstances. Under the bill, such requests for
location information could only be made by a law enforcement
officer who is responding to an emergency call or an emergency
situation where a person is in serious physical danger.
Furthermore, governmental entities would not be allowed to
pursue civil or administrative actions against entities or
individuals that provide such information in good faith.
Based on information from the Federal Communications
Commission (FCC), CBO estimates that the regulatory activities
necessary to implement H.R. 4889 would have no significant
effect on the agency's workload or costs. Moreover, under
current law, the FCC is authorized to collect fees sufficient
to offset the cost of its regulatory activities each year.
Therefore, CBO estimates that the net cost to implement H.R.
4889 would be negligible, assuming annual appropriation actions
consistent with the agency's authorities.
Because enacting H.R. 4889 would not affect direct spending
or revenues, pay-as-you-go procedures do not apply. CBO
estimates that enacting H.R. 4889 would not increase net direct
spending or on-budget deficits in any of the four consecutive
10-year periods beginning in 2027.
H.R. 4889 would impose an intergovernmental mandate as
defined in the Unfunded Mandates Reform Act (UMRA) by
prohibiting public entities from initiating civil or
administrative proceedings against service providers that relay
requested information and other assistance. CBO estimates that
the cost, if any, for public entities to comply with the
mandate would be minimal and well below the annual threshold
established in UMRA ($77 million in 2016, adjusted annually for
inflation).
H.R. 4889 would impose a private-sector mandate as defined
in UMRA by requiring telecommunications providers to share the
location of cell phones in emergency situations. Currently,
telecommunications providers supply cell phone location data
upon request when certain internal criteria of the providers
are met or when law enforcement officials present a warrant for
the information. This bill would require telecommunications
providers to supply the call location data immediately at the
request of law enforcement officials when the cell phone has
been used to place a 9-1-1 call requesting emergency
assistance, or when the cell phone is believed to be in the
possession of someone law enforcement believes is in a serious
emergency situation. Because telecommunications companies
already frequently supply location information to law
enforcement officials, the incremental cost of the mandate
would be small.
In addition, the bill would prohibit plaintiffs from filing
a civil action against telecommunication providers for
supplying location information in compliance with the bill. By
eliminating an existing right to seek compensation for damages,
the bill would impose a private-sector mandate. The cost of the
mandate would be the forgone net value of awards and
settlements that would have been awarded for such claims in the
absence of the bill. A search of the available literature
suggests that few of those specific types of lawsuits have been
brought against providers under current law, and that most
cases involving the release of location information have been
brought against the government or government officials.
Although there is some uncertainty about the number of claims
against telecommunications providers that would be successful
and about the value of awards or settlements in those cases,
because of the narrow scope of the cases involved CBO expects
that the costs in any one year would probably fall below the
annual threshold established in UMRA for private-sector
mandates ($154 million, in 2016, adjusted annually for
inflation).
The CBO staff contacts for this estimate are Kathleen Gramp
(for federal costs), Rachel Austin (for state and local
mandates), and Logan Smith (for private-sector mandates). The
estimate was approved by H. Samuel Papenfuss, Deputy Assistant
Director of Budget Analysis.
Federal Mandates Statement
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.
Duplication of Federal Programs
No provision of H.R. 4889 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee estimates that enacting H.R. 4889 does not
direct any rule making within the meaning of 5 U.S.C. 551, as
specified in Section 2(a).
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Section-by-Section Analysis of the Legislation
Section 1. Short title
Section 1 provides that the Act may be cited as the
``Kelsey Smith Act.''
Section 2. Required emergency disclosure of call location information
to law enforcement
Section 2 amends Section 222 of the Communications Act of
1934 by adding a new subsection (d)(2) that requires covered
service providers to provide location data or call location
information to law enforcement officers at their request for
the device of a user that law enforcement believes to be in an
emergency situation that involves the risk of death or serious
physical harm, or when the device was used to place a call to
9-1-1 requesting emergency assistance.
The narrow scope of the legislation is intended to prevent
abuse or overreach. By limiting it to true emergency situations
where a victim is at risk of death or serious injury, law
enforcement cannot use the law to obtain location information
for routine, non-emergency investigations or for any other
purpose. In addition, the Act only grants access to call
location information and triangulated location data--the
legislation would not allow law enforcement to obtain call
history, any data on the device, texts or emails from the
device owner, or any other information connected to the device.
This legislation is intended to only address the specific
situation of providing law enforcement with a tool to locate a
device and presumably the user. Moreover, the legislation
establishes an obligation on wireless carriers; how and when
law enforcement avails itself of the tools provided in this Act
are matters of state law.
In addition, the legislation states that there shall be no
cause of action against any provider of a covered service that
provides, in good faith, location information in accordance
with this Act. This hold harmless language helps to protect the
carriers from liability so long as they are in compliance with
the Act, and further takes the decision making out of the hands
of service providers and places it with law enforcement. Given
the unique skill sets of law enforcement for making
determinations as to what constitutes an emergency, it is
appropriate that they are tasked with this responsibility.
The Act defines ``covered service'' as a commercial mobile
service, or an IP enabled voice service. The Act also defines
``investigative or law enforcement officer'' through cross-
reference to section 2510 of title 18 of the U.S. Code.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
COMMUNICATIONS ACT OF 1934
* * * * * * *
TITLE II--COMMON CARRIERS
PART I--COMMON CARRIER REGULATION
* * * * * * *
SEC. 222. PRIVACY OF CUSTOMER INFORMATION.
(a) In General.--Every telecommunications carrier has a duty
to protect the confidentiality of proprietary information of,
and relating to, other telecommunication carriers, equipment
manufacturers, and customers, including telecommunication
carriers reselling telecommunications services provided by a
telecommunications carrier.
(b) Confidentiality of Carrier Information.--A
telecommunications carrier that receives or obtains proprietary
information from another carrier for purposes of providing any
telecommunications service shall use such information only for
such purpose, and shall not use such information for its own
marketing efforts.
(c) Confidentiality of Customer Proprietary Network
Information.--
(1) Privacy requirements for telecommunications
carriers.--Except as required by law or with the
approval of the customer, a telecommunications carrier
that receives or obtains customer proprietary network
information by virtue of its provision of a
telecommunications service shall only use, disclose, or
permit access to individually identifiable customer
proprietary network information in its provision of (A)
the telecommunications service from which such
information is derived, or (B) services necessary to,
or used in, the provision of such telecommunications
service, including the publishing of directories.
(2) Disclosure on request by customers.--A
telecommunications carrier shall disclose customer
proprietary network information, upon affirmative
written request by the customer, to any person
designated by the customer.
(3) Aggregate customer information.--A
telecommunications carrier that receives or obtains
customer proprietary network information by virtue of
its provision of a telecommunications service may use,
disclose, or permit access to aggregate customer
information other than for the purposes described in
paragraph (1). A local exchange carrier may use,
disclose, or permit access to aggregate customer
information other than for purposes described in
paragraph (1) only if it provides such aggregate
information to other carriers or persons on reasonable
and nondiscriminatory terms and conditions upon
reasonable request therefor.
(d) Exceptions.--
(1) Permitted disclosures.--Nothing in this section
prohibits a telecommunications carrier from using,
disclosing, or permitting access to customer
proprietary network information obtained from its
customers, either directly or indirectly through its
agents--
[(1)] (A) to initiate, render, bill, and
collect for telecommunications services;
[(2)] (B) to protect the rights or property
of the carrier, or to protect users of those
services and other carriers from fraudulent,
abusive, or unlawful use of, or subscription
to, such services;
[(3)] (C) to provide any inbound
telemarketing, referral, or administrative
services to the customer for the duration of
the call, if such call was initiated by the
customer and the customer approves of the use
of such information to provide such service;
and
[(4)] (D) to provide call location
information concerning the user of a commercial
mobile service (as such term is defined in
section 332(d)) or the user of an IP-enabled
voice service (as such term is defined in
section 7 of the Wireless Communications and
Public Safety Act of 1999 (47 U.S.C. 615b))--
[(A)] (i) to a public safety
answering point, emergency medical
service provider or emergency dispatch
provider, public safety, fire service,
or law enforcement official, or
hospital emergency or trauma care
facility, in order to respond to the
user's call for emergency services;
[(B)] (ii) to inform the user's legal
guardian or members of the user's
immediate family of the user's location
in an emergency situation that involves
the risk of death or serious physical
harm; or
[(C)] (iii) to providers of
information or database management
services solely for purposes of
assisting in the delivery of emergency
services in response to an emergency.
(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.
(e) Subscriber List Information.--Notwithstanding subsections
(b), (c), and (d), a telecommunications carrier that provides
telephone exchange service shall provide subscriber list
information gathered in its capacity as a provider of such
service on a timely and unbundled basis, under
nondiscriminatory and reasonable rates, terms, and conditions,
to any person upon request for the purpose of publishing
directories in any format.
(f) Authority To Use Location Information.--For purposes of
subsection (c)(1), without the express prior authorization of
the customer, a customer shall not be considered to have
approved the use or disclosure of or access to--
(1) call location information concerning the user of
a commercial mobile service (as such term is defined in
section 332(d)) or the user of an IP-enabled voice
service (as such term is defined in section 7 of the
Wireless Communications and Public Safety Act of 1999
(47 U.S.C. 615b)), other than in accordance with
[subsection (d)(4)] subsection (d)(1)(D); or
(2) automatic crash notification information to any
person other than for use in the operation of an
automatic crash notification system.
(g) Subscriber Listed and Unlisted Information for Emergency
Services.--Notwithstanding subsections (b), (c), and (d), a
telecommunications carrier that provides telephone exchange
service or a provider of IP-enabled voice service (as such term
is defined in section 7 of the Wireless Communications and
Public Safety Act of 1999 (47 U.S.C. 615b)) shall provide
information described in subsection (i)(3)(A) (including
information pertaining to subscribers whose information is
unlisted or unpublished) that is in its possession or control
(including information pertaining to subscribers of other
carriers) on a timely and unbundled basis, under
nondiscriminatory and reasonable rates, terms, and conditions
to providers of emergency services, and providers of emergency
support services, solely for purposes of delivering or
assisting in the delivery of emergency services.
(h) Definitions.--As used in this section:
(1) Customer proprietary network information.--The
term ``customer proprietary network information''
means--
(A) information that relates to the quantity,
technical configuration, type, destination,
location, and amount of use of a
telecommunications service subscribed to by any
customer of a telecommunications carrier, and
that is made available to the carrier by the
customer solely by virtue of the carrier-
customer relationship; and
(B) information contained in the bills
pertaining to telephone exchange service or
telephone toll service received by a customer
of a carrier;
except that such term does not include subscriber list
information.
(2) Aggregate information.--The term ``aggregate
customer information'' means collective data that
relates to a group or category of services or
customers, from which individual customer identities
and characteristics have been removed.
(3) Subscriber list information.--The term
``subscriber list information'' means any information--
(A) identifying the listed names of
subscribers of a carrier and such subscribers'
telephone numbers, addresses, or primary
advertising classifications (as such
classifications are assigned at the time of the
establishment of such service), or any
combination of such listed names, numbers,
addresses, or classifications; and
(B) that the carrier or an affiliate has
published, caused to be published, or accepted
for publication in any directory format.
(4) Public safety answering point.--The term ``public
safety answering point'' means a facility that has been
designated to receive emergency calls and route them to
emergency service personnel.
(5) Emergency services.--The term ``emergency
services'' means 9-1-1 emergency services and emergency
notification services.
(6) Emergency notification services.--The term
``emergency notification services'' means services that
notify the public of an emergency.
(7) Emergency support services.--The term ``emergency
support services'' means information or data base
management services used in support of emergency
services.
(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.
* * * * * * *
MINORITY VIEWS
Democrats and Republicans agree that in emergency
situations, law enforcement should have quick access to the
information necessary to save lives. Democrats also believe,
however, that new powers granted to law enforcement should also
be accompanied by key public safeguards and privacy
protections--especially if those protections will not slow down
investigations. H.R. 4889, the ``Kelsey Smith Act,'' would
require wireless carriers to turn over the location data of
individuals in certain emergency situations. This bill,
however, does not include after-the-fact procedural checks that
were part of a bipartisan agreement in the 113th Congress to
help preserve the privacy of consumers without slowing the
investigation.
BACKGROUND AND ANALYSIS
H.R. 4889 is named for Kelsey Ann Smith, who was abducted
as she left a discount retail department store one evening in
2007. Law enforcement officials found Kelsey's body four days
later by using information obtained from her wireless
carrier.\1\ This bill was introduced by Rep. Kevin Yoder (R-KS)
on March 23, 2016.
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\1\Mother of Murdered Teen Pushes for Law Forcing Cellphone
Carriers to Release Life-Saving Information, Fox News (Apr. 13, 2014)
(online at http://www.foxnews.com/politics/2013/04/13/mother-murdered-
teen-pushes-for-law-mandating-cell-phone-carriers-to-release.html).
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Rather than use the permissive standard contained in
current law, H.R. 4889 would require wireless carriers to
furnish to law enforcement officials the ``best available
location information'' upon request. Specifically, wireless
carriers would be required to turn over data for (i) a device
used to make a 9-1-1 call or (ii) a device reasonably believed
to be in the possession of an individual that law enforcement
reasonably believes is in an emergency situation involving the
risk of death or serious physical harm.
Presently under the Communications Act, wireless carriers
may provide location data to a user's family members during an
``emergency situation that involves the risk of death or
serious physical harm.''\2\ In responding to a request, the
wireless carrier must determine whether a given situation is an
emergency that involves risk of death or serious bodily
harm.\3\
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\2\47 U.S.C. 222(d)(4)(B).
\3\Id.
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At the time of Ms. Smith's abduction, her wireless carrier
did not have a policy detailing how to determine if an
emergency permitted disclosure under the law.\4\ As a result,
it took the carrier four days to turn over her cell phone's
location data to law enforcement. During the 113th Congress,
the Committee on Energy and Commerce considered another version
of the Kelsey Smith Act. Several Democratic members of the
Committee and constitutional experts raised concerns that the
version of the bill being considered risked violating
consumers' privacy and Fourth Amendment rights. The Committee
amended the bill to address some of these concerns while
preserving law enforcement's expedited access to location data.
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\4\The Kelsey Smith Story--A Story Of Heartache & Hope, Bryan
Bentley, Plymouth-Canton Patch (May 21, 2014) (online at http://
patch.com/michigan/plymouth-mi/bp--the-kelsey-smith-story-a-story-of-
heartache-hope).
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In the 113th Congress, the Committee adopted Democratic
amendments that would require law enforcement to make a showing
closer in line with the standard required under the Fourth
Amendment only after a carrier was compelled to hand over a
private citizen's location data.\5\ After accepting these
amendments, the Committee favorably reported the bill. Even
with these improvements, civil liberties groups continued to
raise concerns that the amended bill could enable the
government to exercise sweeping new powers to the detriment of
personal privacy and contrary to the Fourth Amendment.\6\
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\5\H.R. 1575 (113th Cong.).
\6\See e.g., Letter from ACLU to Chairman Fred Upton and Ranking
Member Henry A. Waxman, House Committee on Energy and Commerce (July
29, 2014).
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Despite these continued criticisms, the version of the bill
introduced by Rep. Yoder in this Congress omits even the
specific protections that were adopted in the last Congress.
Accordingly, the version of H.R. 4889 being considered in this
Congress takes a step back from the bipartisan work done in the
last Congress.
During open markup of H.R. 4889 before both the
Subcommittee on Communications and Technology and the full
Committee on Energy and Commerce, Democrats offered an
amendment to H.R. 4889 to reflect the bipartisan work on the
Kelsey Smith Act from the 113th Congress. That amendment would
have included the key safeguards to protect the privacy of
consumers while still meeting the public safety goals of the
Act. The Majority was not interested in adding back even the
safeguards they agreed to in the last Congress.
Democrats have always been willing to work in a bipartisan
fashion to improve this bill. But these safeguards that protect
consumer privacy are necessary before this bill can become law.
Law enforcement can receive these new tools to make us safer
without the public having to sacrifice basic civil rights.
Frank Pallone, Jr.,
Ranking Member, Committee on
Energy and Commerce.
Anna G. Eshoo,
Ranking Member, Subcommittee
on Communications and
Technology.