Legal Implications of Location-based Data
But the DoJ has not endorsed Leahy's bill or any other specific reform measure, and the department's absence at another House hearing Thursday morning that focused on the law's implications for location-based data was noted.
"While DoJ has briefed committee staff on ECPA and geolocation, the Obama administration has refused our request to testify in public," says Jim Sensenbrenner (R-Wis.), the chairman of the House Judiciary Committee's Subcommittee on Crime, Terrorism, Homeland Security and Investigations. "This is unacceptable."
At the Senate markup the same day, Iowa's Chuck Grassley, the ranking Republican on the Judiciary Committee, expressed a similar sentiment, saying, "It's disappointing that the DoJ hasn't weighed in."
The House hearing on ECPA and geolocation data highlighted the same underlying friction between personal privacy and the needs of law enforcement that has colored the broader debate over ECPA reform.
"Requiring probable cause to get basic, limited information about a person's historical location could make it significantly more difficult for us in law enforcement to solve crimes and seek justice," says Peter Modafferi, a veteran detective and chair of the Police Investigative Operations Committee of the International Association of Chiefs of Police.
Leading online service providers like Google and Microsoft have thrown their lot in with civil liberties groups and privacy advocates in the debate, arguing that inconsistent privacy protections have created substantial uncertainty in the market and slowed the adoption of cloud computing.
Legal vs. Privacy Implications of Location-based Surveillance
Thursday's activity on Capitol Hill involving ECPA comes about 15 months after the U.S. Supreme Court addressed the issue of location-based surveillance, ruling that law-enforcement authorities erred in not obtaining a warrant before attaching a GPS tracking device to the vehicle of a suspected D.C. drug kingpin. But that ruling was fairly narrow and stopped short of setting a broader precedent for law enforcement's use of geolocation technology.
At Thursday's House hearing, ACLU attorney Catherine Crump expressed support for the GPS Act, a bill pending before the subcommittee that would require investigators to obtain a warrant from a court before accessing a suspect's phone location.
That measure has drawn predictable opposition from the law-enforcement community. But even as the civil liberties and law enforcement camps are far apart on the appropriate legal framework for lawful access to location information under ECPA, in the wake of the Supreme Court decision, they accept as a starting point that the legal issues in play remain unsettled.
As Crump put it: "We at least agree that the current situation is unclear and in a state of chaos."
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