Legislative Update: Gov. Nixon Signs Cell Phone Tracking Bill

David A. Zobel

By David A. Zobel

As recently reported by the New York Times, across America demands by law enforcement agencies for cell phone records and data are skyrocketing. In fact, records released by the top five cell phone carriers indicated that 1.3 million requests for cell phone location/tracking and other data were granted to law enforcement agencies in 2011 alone.

Originally utilized only by federal agents, much of the recent increase has resulted from smaller and local law enforcement agencies utilizing such requests in their regular law enforcement practices. As with almost all technological advances, the technology of modern cell phones and capabilities of tracking same have outpaced governmental regulation, which has allowed many law enforcement agencies to utilize this practice with little to no legislative or judicial oversight. Recently, as the practice has grown and attracted more attention, advocates on both sides of the issue have brought this issue into public debate.

Civil liberties advocates argue the increased usage of cellular surveillance and tracking raises certain constitutional questions as the legal standards for obtaining this cell phone data are generally lower and less clear than the traditional standards applied in circumstances where law enforcement attempts to wiretap or monitor traditional phone lines and conversations. Advocates are concerned these lower and less clear standards invite troublesome discretion and surreptitious usage amongst law enforcement agencies.

Additionally, privacy advocates have expressed concern in the fact that modern cell phones can provide incredibly detailed pictures of the user’s life, including information related to the user’s health, political affiliations, finances and other sensitive data.

Still, law enforcement agencies have countered by stating that cellular surveillance and tracking provide law enforcement agencies with an important and powerful tool in responding to emergency circumstances like child abductions, suicide calls, finding stranded hikers and in other circumstances where a quick response to a phone’s location may prevent injury and even death.

In light of the recent technological advances and the recognized uncertainty as to the extent of information law enforcement agencies should be able to obtain and the methods utilized to obtain such information, Congress and about a dozen states are considering legislative proposals to tighten restrictions on the use of cellular surveillance and tracking.

In Missouri, Governor Jay Nixon recently signed into law House Bill 1108. The law, enacted on July 6, 2012, requires phone companies to cooperate with police by tracking cell phone signals of 911 callers and/or by pinging a cell phone’s location when there is danger of death or serious physical injury. The language of the law appears focused on victim searches as the sole use and states that a ping is to be used only “in an emergency situation that involves danger of death or serious physical injury to any person where disclosure of communications relating to the emergency is required without delay.”

However, similar to debate at the federal level, the law’s language is not without controversy. Critics are concerned a wrong ping could lead law enforcement on a wild goose chase after the user is no longer in possession of the cell phone or, in circumstances where the police misunderstood the situation, the ping could be used to locate a person who was not missing at all. Additionally concerning for critics is the law’s language purporting to prohibit lawsuits against cell carriers for acting pursuant to the law. The law does not differentiate between valid and invalid requests, potentially protecting cell carriers from even the most deficient and/or unwarranted requests for user’s data.

Whether the law will be effective or abused is yet to be seen; however, without judicial intervention, it is likely here to stay for the time being. Taking a position against the law could be construed as making it more difficult to locate missing children – an unpopular stance in an election year.

Of noting, the law was prompted by the 2007 killing of 18-year old Kelsey Smith, who was abducted from a mall parking lot in June 2007 and was found dead four days later. House Member Jeanine Lauer, the bill’s sponsor from Blue Springs, Missouri indicated that Ms. Smith could have been located sooner had police been able to track her cell phone.

Posted by Attorney David A. Zobel. Zobel primarily represents individuals and corporations in the defense of civil litigation, including contract, negligence, and real estate matters.  In addition to his court room work, Zobel assists in advising clients on contract and employment issues and regarding issues arising under the Sunshine Law.

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