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Inside Privacy Updates on Developments in Global Privacy & Data Security from Covington & Burling LLP

California Legislature Bans Warrantless Location Tracking

Posted in Mobile, State Legislatures

Last week, the California legislature passed one of the nation’s most restrictive bills governing law enforcement’s ability to access location information.  Under the California Location Privacy Act, state and local government agencies would be required to secure search warrants before obtaining historical or current location information for any electronic device.  The California bill would curtail some of the law enforcement practices described in this New York Times article, which noted that cellphone carriers responded to 1.3 million law enforcement demands in 2011 — many of which came in the form of subpoenas, emergency requests, or other demands that can be less legally burdensome to secure than warrants.  

The California bill contains only a few narrow exceptions to the warrant requirement, such as responding to a user’s 911 call; with a user’s informed, affirmative consent; or in emergencies involving immediate danger of death or serious physical injury.  In the final round of amendments, the bill’s sponsors added an immunity provision for providers of location information: the Act is not to be construed “to create a cause of action against any foreign or California corporation, its officers, employees, agents, or other specified persons, for providing location information.”

The legislation now goes to the governor, although the governor’s office has not yet indicated whether he will sign the bill.  Governor Brown vetoed a narrower measure last year, SB 914, that would have required law enforcement officers to obtain a warrant before searching an arrested person’s portable electronic device. 

As we blogged about here, the Supreme Court’s decision earlier this year in United States v. Jones left open a number of questions about locational tracking — and it is expected that legislators, courts, and government officials will be grappling with this issue for some time.  The California legislation is just one in a series of recent developments related to location privacy, including:

  • On July 30, Sen. Ron Wyden (D-OR) offered the Geolocation Privacy and Surveillance (GPS) Act as an amendment to the Cybersecurity Act of 2012.  The GPS Act, which Sen. Wyden introduced last year in conjunction with Rep. Jason Chaffetz (R-UT), would require government agencies to obtain a warrant to track location, and also would prohibit private companies from sharing location data about their customers without consent.
  • On August 9, Rep. Edward Markey (D-MA) released a discussion draft of the Wireless Surveillance Act of 2012.  Among other things, the draft legislation would mandate a regulatory cap on carriers’ retention of subscriber information; prohibit the interception, disclosure, or use of geolocation information except in certain specified circumstances, such as with consent; create a private right of action for violations of the Act; and require law enforcement officers to obtain a warrant before conducting location tracking. 
  • On August 14, the Sixth Circuit held that the Fourth Amendment was not violated when DEA agents obtained court orders allowing them to “ping” the defendants’ burner cellphones and pinpoint the defendants’ location, even though the defendants were not aware that the burner cellphones were equipped with GPS technology.  
  • On August 15, the ACLU sued the FBI to obtain two memos in which the FBI provided guidance on how Jones applies in other contexts, such as other forms of transportation besides cars, at international borders, and other evidence-gathering techniques besides GPS trackers.
  • On October 2, the Fifth Circuit is scheduled to hear oral argument in a case that will decide whether a magistrate judge was correct in ruling that a warrant is required to compel phone service providers to disclose historical cell-site records.