Finally, A Bill Requires Police Get A Judge's Approval Before They Can See Your Texts Or Location


A new bill (hopefully) reconciles Fourth Amendment protections and 21st-century search and seizure.


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A month ago, we learned that more (and maybe many, many more) than 1.3 million people's cell phone data were handed over to US law enforcement agencies in 2011 alone. Text messages, caller locations, and records of who called whom and for how long had all been shared without a judges' approval -- because, according to current law, no approval is needed.

Last week, the Congressman who helped reveal how rampant and unregulated that sharing is introduced legislation to start restraining it. Called the "Wireless Surveillance Act of 2012," the new bill, in the words of its Massachusetts's Edward Markey, attempts to "update the 4th amendment for the 21st century."

The discussion draft of the Surveillance Act, according to Markey, would immediately:

-- limit how and why enforcement agencies can ask for "tower dumps." Tower dumps, in the words of ProPublica reporter Megha Rajaopalan:

list every phone in range of a cell tower at a particular time. In cities, where cell towers are located close together, it is possible that the locations of thousands of people might be swept up in a single request.

According to the Congressman, the new bill would tailor the kind of information that can be requested in "dumps" and make them less frequent.

-- apply home search standards to cell phone location requests. Right now, law enforcement forces can request the location of your cell phone (and thus, presumably, you) from your provider without getting a judge's approval. The bill would require approval.

-- account for which officials asked for "emergency" data when. The most frequent reason these kinds of cell phone requests are used, law enforcement officials say, is to solve kidnappings and similar crimes where location and time are of the essence. Markey's bill attempts to account for these situations by requiring "a signed, sworn statement from law enforcement authorities after receipt of information from a carrier that justifies the need for the emergency access."

Markey's bill also requires law enforcement agencies to better manage cell phone data. After Markey asked providers for information on cell phone data requests in April, the revelation about the extent of tracking was huge and made front-page headlines. This new bill would require law enforcement agencies regularly issue reports about the extent of their tracking. The bill would also allow the FCC to regulate how long law enforcement agencies could hold onto data. Right now, no limits exist, and, with or without a reason, agencies can save personal information (including texts, location data, and call records) indefinitely.

It's funny how basic some of these provisions seem. A judge's approval for location tracking. Requirements on how long an agency can just hold onto texts. But this legislation isn't on the books and the restrictions it contains won't exist unless it -- or something like -- is signed into law.

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Robinson Meyer is an associate editor at The Atlantic, where he covers technology.

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