Thursday, June 16, 2011
Stephanie K. Pell and Christopher Soghoian (affiliation not provided to SSRN and Indiana University Bloomington - Center for Applied Cybersecurity Research) have posted Can You See Me Now: Toward Reasonable Standards for Law Enforcement Access to Location Data that Congress Could Enact on SSRN. Here is the abstract:
Increasing law enforcement use of historical and prospective location information generated by cell phones and other mobile devices has led some Magistrate Judges to scrutinize government applications to compel third party disclosure, as well as the very legal standards governing law enforcement access. Uncertainty regarding those standards has created an inconsistent legal landscape, which led Congress to hold a series of Electronic Communications Privacy Act (ECPA) reform hearings in 2010, including one on location information. Congress must assess the privacy impact of current access standards for location information – an assessment we believe will illustrate the urgent need for ECPA reform, both to clarify the law and reestablish the balance of interests among law enforcement, privacy and industry equities. This paper offers a guide to that analysis.
We begin with a brief discussion of various location technologies and their relative accuracy. We go on to explore the confusion in the judiciary over law enforcement access standards to location data and what they require the government to show. We then discuss some “lessons learned” from Congressional hearings and advocacy efforts during the 111th Congress. Then, we consider how Courts, in recent decisions considering law enforcement access to GPS information, have articulated the potential harms and privacy impacts to society using the interpretive frames of Orwell’s dystopia in 1984 and what has come to be called the “panoptic effect” – the anxious response produced by the presumed omnipresence of the government’s gaze. Some Judges from these Courts then suggest, and we agree, that privacy issues raised by law enforcement access to location data may best be addressed by the legislature. With that in mind, we present our own model legislative framework for location information, including law enforcement access standards. It is neither the most protective of privacy, nor the most “friendly” to law enforcement. We hope, by providing an object of discussion and critique in a now polarized debate, that our proposed standards will become a catalyst for useful reform.