Carrying a cellphone should not equate to surrendering privacy rights. Yet a study released late last month by Harvard University and Massachusetts Institute of Technology researchers reveals that basic electronic device location tracking data make it possible to “uniquely identify 95 percent” of the individuals in a group of 1.5 million people over a 15-month period.
“Going forward, the importance of location data will only increase, and knowing the bounds of individual’s privacy will be crucial in the design of both future policies and information technologies,” the researchers concluded.
Maine state government has little control over the quickly changing information technology sector, but it can act to ensure that constitutionally protected privacy rights keep pace with technology. A bill, LD 415, which is scheduled for a work session Thursday before the Legislature’s Judiciary Committee, has the potential to modernize Maine law to protect individuals’ privacy in an age when GPS tracking and sophisticated ce llp hone tower simulators have replaced wiretapping as the preferred means of surveillance.
The bill, sponsored by Assistant Senate Republican Leader Roger Katz of Augusta, would prohibit government entities in Maine, including law enforcement agencies, from obtaining location information from cellphones and other electronic devices without a warrant from a judge, except in cases of imminent threats to national security or of grave personal injury.
The bill also mandates that government entities inform individuals within three days that location information about them was collected, unless good cause can be established to withhold the information. A third component of the proposed legislation calls for judges to report activities related to the granting of warrants to the Administrative Office of the Courts, which would provide a summary of those reports to the Legislature.
Those provisions could prove problematic, and input from law enforcement and the judicial branch on how they would affect investigations and evidence submission should factor heavily in changes considered during Thursday’s work session. But disagreement over those details ought not undermine the main goal of the bill, which proposes specific language related to electronic device location tracking that would fill a gap in existing state and federal law. It would codify for electronic location tracking data the same “probable cause” standards that must be established to allow investigations based on other forms of potential evidence to proceed.
During a March 20 public hearing on the bill, the Maine attorney general’s office and representatives of law enforcement agencies testified in opposition, citing the fact that police investigations in Maine currently comply with the state and federal constitutions and with the federal Electronic Communications Privacy Act.
However, the Electronic Communications Privacy Act took effect in 1986, and revisions to it build upon guidelines that were established long before cellphone use became prevalent and precise location tracking made it possible to monitor a person’s movements second by second. Federal law has not kept up with technology, which makes its application subject to interpretation by different courts.
Legislative action, such as LD 415, would directly link Fourth Amendment privacy protections to location tracking, thereby reducing the judicial branch’s burden of having to interpret how to apply wiretapping laws to a wireless society. Supreme Court Justice Samuel Alito suggested that approach in his 2012 opinion on United States v. Jones, which dealt with using an electronic tracking device on a vehicle to monitor an individual’s movements.
“In circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative,” Alito wrote. “A legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.”
Thursday’s work session provides a forum for lawmakers, civil libertarians and law enforcement officials to work collaboratively to shape LD 415 into a law that achieves that balance.