Stephanie Pell & Christopher Soghoian, Towards A Privacy Framework For Law Enforcement Access to Location Information
Comment by: Bryan Cunningham
PLSC 2011
Workshop draft abstract:
Electronic Communication Privacy (ECPA) Reform was an active topic in 2010. The Digital Due Process coalition, a group of civil liberties groups, academic scholars and several major industry players, launched a significant policy initiative that called for reform of the two-decade old law. Responding to this call, the 111th Congress took a firm interest in the topic, with three ECPA hearings held in the House Judiciary Committee and one in the Senate Judiciary Committee.
In any area of ECPA reform, Congress must strive to find the right balance among the (often competing) interests of law enforcement, privacy and industry. In some areas, it is relatively easy to agree on a common-sense path to improve the law. The topic of cloud computing proved to be such an area – industry, academia and the public interest community all agreed that a probable cause warrant standard for all content requests would be a major improvement over the current standard, which varies depending on the length of time an email has been in storage, or if it has been read at least once.
Finding this balance in the area of location privacy, however, has proved to be far more challenging for Congress because: (1) the technologies involved are exceedingly complex, far more so than cloud computing; (2) law enforcement agencies will not–and, in some instances, cannot (without compromising sources and methods)–publicly discuss their needs for and uses of this information; (3) major industry players are reluctant to disclose their own data retention policies for location information or to participate publicly in the legislative process, for example, by testifying at Congressional hearings; and (4) in the area of electronic communication privacy, where the courts have often “punted” , Congress must make proper judgments regarding consumers’ reasonable expectations of privacy and how they can be expressed in equally reasonable access rules.
Drawing on our unique expertise (as, respectively, a Counsel to the House Judiciary Committee in the 111th Congress, and a privacy and security researcher focused on law enforcement surveillance), we will plot a path forward for the location privacy problem. This article will propose a regime of common sense, practical standards for law enforcement access to location information that is technology neutral, provides clear rules for law enforcement and industry to follow and courts to apply, and balances the interests of the three major ECPA stakeholders: law enforcement, consumer privacy and industry.