Lawmakers seek controls for access to geolocation data

Members on both sides of the aisle on the House Oversight and Government Reform Committee believe that the Department of Justice is required to obtain a search warrant to access geolocation data, and that not doing so directly violates Americans' Fourth Amendment rights.

"Geolocation is more than just a record of where we are or were," Chairman Jason Chaffetz (R-Utah) said. "Just because it's easier in 2016 for law enforcement to track our location and learn intimate details about our lives doesn't mean those details are somehow less worthy of constitutional protection."

One problem: the DOJ currently draws a distinction between types of geolocation data based on how that information is obtained, and believes a warrant is not necessary in certain cases.

"Location information plays an important, and sometimes pivotal, role in our efforts to protect public safety and to seek justice," said Department of Justice Senior Litigation Counsel Kevin Downing. "And it is important to recognize that different kinds of location information implicate different privacy concerns."

The DOJ does not believe a probable cause warrant is required to obtain this historical information, about mobile device users collected passively by cell phone towers according to Downing.

"Cell-site information can play a critical role in the outset of an investigation, when there is not sufficient evidence to satisfy a probable cause standard," Downing said.

However, ACLU representative Neema Guliani, along with many committee members, disagreed with that position. She argued that a Supreme Court decision in Jones v. United States "makes clear that the Fourth Amendment requires a probable cause warrant to collect historical or real-time location information," she said. In that case, the Supreme Court ruled that authorities needed a warrant issued by a judge to place a GPS tracking device on a suspect's vehicle.

Members were also concerned about location information collected by "cell-site simulators," which spoof cell phone towers by pinging user devices to collect information. These are known by the trade name "Stingray," and can track users in real time.

Downing said a warrant is required to track real time information because the DOJ views tracking somebody in real time as "more intrusive than looking at the historical view of someone’s activities."

Rep. Ted Lieu (D-Calif.), an attorney with a background in computer science, scoffed at this.

"I completely don't understand this distinction, and it's stupid and meaningless," he said.

Guliani said that because sensitive person details about a person's life can be pieced together based on where they go, "we believe the distinction between real time and historical location is artificial."

Chaffetz also expressed frustration with the DOJ's lack of transparency when it comes to keeping the public -- and Congress -- informed about information collection methods.

"The public doesn't know what's happening, and we don’t know what’s happening," said Chaffetz. "If we don't see all the facts, we're gonna come to the wrong conclusion. And Congress is notorious for coming to the wrong conclusion. So we're trying to get it right, and having maximum information helps us do that," he said.

In late 2015, Chaffetz offered legislation to require warrants for the use of Stingrays in most law enforcement cases.