We're Close to Strengthening the Privacy of Your Cell Phone's Location (but Only in California)

Right now, law enforcement can ask your cell provider where your phone is at pretty much any time.


On Wednesday, an American legislature took the most affirmative step so far to limit cell-phone location tracking by law enforcement. The California Location Privacy Act, passed with bipartisan support by the state's Assembly, could protect the location data created by citizens' cell phones, tablets and computers.

Under current law, police don't need a warrant to find out where your cell phone is -- or, since you probably have your cell phone in your pocket, to find out where you are. A law enforcement official can simply ask a cell provider for location data, and then that company gets to choose whether or not to relinquish it.

The result? Last year, it's likely that more than 1.3 million people had their location data handed over to law enforcement agencies.

There appear to only have been three main legislative attempts to alter this process.

Two are national: the GPS Act, introduced in June 2011 by the Senate Democrat Ron Wyden and the House Republican Jason Chaffetz, and the Wireless Surveillance Act of 2012, introduced as a discussion draft by House Democrat Ed Markey earlier this summer. (Markey's requests to cell phone providers, also earlier this year, revealed for the first time the extent of police requests for cell locations .)

The third attempt is at the state-level. And this one was actually passed by a bipartisan legislature Wednesday night.

That attempt is California's Location Privacy Act. I spoke yesterday evening with Hanni Fakhoury, the Electronic Frontier Foundation's (EFF) staff attorney focused on how technology intersects with criminal law, to try and understand how the law compares with the two national efforts.

The first and most important thing to understand: California's Location Privacy Act requires a warrant for any kind of location data generated by any kind electronic device.

The law covers "almost anything with a battery in it," Fakhoury told me. "We're not just targeting cell phone tracking and GPS, we're targeting everything exists now and everything that might exist 10 years from now."

The bill is future-proofed, in other words. So it doesn't need to go out of its way to protect against "tower dumps," in which law enforcement officials request details about every phone within range of a certain tower at a certain time. Rep. Markey's advocacy for his bill more explicitly lists tower dumps as something it prevents.

Markey's bill also inherits language from old federal law, including the ancient 1968 Wiretap Act and the slightly-less-ancient 1986 Electronic Communications Privact Act. The California bill uses its own language and understands electronic communication more broadly.

Like Rep. Markey's bill, the California draft allows for law enforcement to access data on an emergency basis. If data was immediately needed, a police official would have to sign and take personal responsibility for the data, then have to explain his or her reasoning to a judge later. (In such a situation, the bill also makes it so a cell phone provider wouldn't be liable under the statute established by the bill itself. So a cell provider could still be sued for relinquishing data, but under the California Location Privacy Act.)

Fakhoury said he knew of no other major state initiatives, anywhere, to grant location privacy. (As a journalist working in the same area, I know of no other initiatives, either.)

So this is it, and Californians suddenly find themselves with the best chance of having their location data protected by warrant requirements than any other Americans. All that needs to happen now is for the bill to get Governor Jerry Brown's signature.

Gov. Brown actually vetoed the last bill which attempted to set location privacy restrictions in California: SB 914, which passed the California state legislature with similar bipartisan support in 2011. It required police to get a warrant before searching the phone of an arrested person.

The new bill, though, sets a broader standard and interferes less with issues of police protection.

"There's lots of precedent," Fakhoury said, for legislatures establishing privacy rules. In fact, he noted in a blog post on the EFF's site, the tack taken by the bill may have an ally in a certain Supreme Court justice, who wrote earlier this year):

In circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative.

That Justice? None other than Samuel Alito.