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By Hannah Lepow

Yesterday California Attorney General Kamala D. Harris released guidance on how smartphone and tablet users can manage GPS and other location tracking functions on their mobile devices.

The brief information sheet, designed for consumers, details how Android and iOS users can control different types of location information on their devices, including…

Last Friday, Rep. Zoe Lofgren (D-CA) introduced the ECPA 2.0 Act, H.R. 6529, which would strengthen the legal standards for law enforcement to gain access to electronic communications and location information.  The Electronic Communications Privacy Act (ECPA) is more than 25 years old and is widely seen as needing modernization to address changes in digital storage, the cloud, and location-based services.  As we’ve previously noted, government access to location information is an ongoing issue for legislators, courts, and government officials.  …

Continue Reading Rep. Lofgren Introduces Legislation to Update ECPA

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.”…

Continue Reading California Legislature Bans Warrantless Location Tracking

The federal government conducted a search for purposes of the Fourth Amendment when it attached a GPS tracking device to a suspect’s car and used the device to track the suspect’s movements for 28 days, the U.S. Supreme Court ruled Monday.

All nine justices voted to uphold the decision by the U.S. Court of Appeals for the D.C. Circuit reversing Antoine Jones’s drug-trafficking conviction, which was partly based on evidence obtained from the tracking device. But the Court split 5-4 on how the government’s actions constituted a search within the meaning of the Fourth Amendment.

A five-justice majority, in an opinion written by Justice Antonin Scalia, held that the government’s physical attachment of the device to Jones’s car was the critical factor because the Fourth Amendment specifically protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”  Physically trespassing on one of Jones’s “effects” — the car — in order to obtain information would have been considered a search when the Fourth Amendment was adopted, the Court held, and such an intrusion therefore requires the government to obtain a warrant under most circumstances. Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Sonia Sotomayor joined Justice Scalia’s majority opinion.…

Continue Reading Supreme Court: Attaching GPS Tracker to Suspect’s Car Constitutes Search For Purposes of Fourth Amendment

Today, Senator Charles Schumer (D-NY) sent letters to Federal Trade Commission chairman Jon Liebowitz and OnStar executive director Linda Marshall regarding recent controversial changes to OnStar’s privacy policies.  OnStar provides in-vehicle GPS navigation, emergency response, and concierge services for millions of U.S.-manufactured vehicles.  In providing these services, OnStar collects data regarding customers’ location, speed, driving…

As we previously noted here and here, locational privacy continues to be an area of ongoing interest.  Yesterday, a New Jersey appeals court ruled that a husband’s privacy rights were not invaded when his wife put a GPS tracking device in his car. 

In Villanova v. Innovative Investigations, Inc., A-0654-10T2 (N.J. Sup. Ct.

In light of the number of privacy and data security-related bills currently being considered by Congress, we thought it might be helpful to provide a roundup of the legislation introduced or circulated to date:

Comprehensive privacy legislation:

  • BEST PRACTICES Act, H.R. 611 (Rep. Rush): introduced Feb. 10, 2011.  Referred to the House Subcommittee on

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By Elizabeth Katz

Twenty-five years after authoring the Electronic Communications Privacy Act (“ECPA”), Senator Patrick Leahy has introduced a bill, the ECPA Amendments Act of 2011 (S. 1011), that is intended to adapt the Act to the privacy and security challenges of the 21st Century.  The bill would amend Title II of ECPA, commonly called the “Stored Communications Act” or “SCA,” which regulates the disclosure to private parties and the U.S. government of electronic communications in storage with certain service providers.  Much of S. 1011 increases the requirements that the U.S. government must satisfy to compel disclosure of covered communications.

The bill was introduced amid a flurry of activity in the Senate related to privacy and data security.  Last week, the newly formed Senate Subcommittee on Privacy, Technology and the Law held a hearing on privacy in the mobile communications context (which also touched on ECPA reform), and the Senate Commerce Committee held a similar hearing today (its sixth hearing on consumer privacy in the past 13 months).

After the jump is a summary of S. 1011’s key provisions.…

Continue Reading Senator Leahy Proposes Amendments to ECPA

By Elizabeth Katz

As Senate Judiciary Committee Chairman Patrick Leahy prepares to introduce legislation to reform the Electronic Communications Privacy Act, the Brookings Institution today held a panel on ECPA reform issues. The discussion began with a keynote address delivered by George Washington University Law School professor Orin S. Kerr. Following Mr. Kerr’s remarks, four…

CNET reports that Rep. Jay Inslee (D-WA) is calling on the FTC to investigate Apple’s privacy practices, particularly with respect to location-based services.  In a letter to FTC Chairman John Leibowitz, Inslee expressed concern about users’ lack of awareness of “location-aware technology.”  He writes: 

“Citizens expect to be able to know the extent to which…