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57–082 PDF 2010

ECPA REFORM AND THE REVOLUTION IN 

LOCATION BASED TECHNOLOGIES AND SERVICES 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION, 

CIVIL RIGHTS, AND CIVIL LIBERTIES 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

JUNE 24, 2010 

Serial No. 111–109 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DANIEL MAFFEI, New York 

JARED POLIS, Colorado 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Majority Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

JERROLD NADLER, New York, Chairman 

MELVIN L. WATT, North Carolina 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

WILLIAM D. DELAHUNT, Massachusetts 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

TAMMY BALDWIN, Wisconsin 

JOHN CONYERS, JR., Michigan 

STEVE COHEN, Tennessee 

SHEILA JACKSON LEE, Texas 

JUDY CHU, California 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

TOM ROONEY, Florida 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

DAVID LACHMANN, Chief of Staff 

PAUL B. TAYLOR, Minority Counsel 

(III) 

C O N T E N T S 

JUNE 24, 2010 

Page 

OPENING STATEMENTS 

The Honorable F. James Sensenbrenner, Jr., a Representative in Congress 

from the State of Wisconsin, and Ranking Member, Subcommittee on the 

Constitution, Civil Rights, and Civil Liberties .................................................. 1 

The Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Representative in Congress 

from the State of Georgia, and Member, Subcommittee on the Constitution, 

Civil Rights, and Civil Liberties ......................................................................... 3 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Chairman, Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties .................................................................................. 5 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, Chairman, Committee on the Judiciary, and Member, 

Subcommittee on the Constitution, Civil Rights, and Civil Liberties ............. 6 

WITNESSES 

Mr. Matt Blaze, Associate Professor, University of Pennsylvania 

Oral Testimony ..................................................................................................... 12 

Prepared Statement ............................................................................................. 17 

Mr. Michael Amarosa, Senior Vice President for Public Affairs, TruePosition 

Oral Testimony ..................................................................................................... 31 

Prepared Statement ............................................................................................. 33 

Mr. Richard Littlehale, Assistant Special Agent in Charge, Technical Services 

Unit, Tennessee Bureau of Investigation 

Oral Testimony ..................................................................................................... 56 

Prepared Statement ............................................................................................. 59 

Mr. Marc J. Zwillinger, Zwillinger Genetski, LLP 

Oral Testimony ..................................................................................................... 65 

Prepared Statement ............................................................................................. 68 

The Honorable Stephen Wm. Smith, United States Magistrate Judge, Southern District of Texas 

Oral Testimony ..................................................................................................... 76 

Prepared Statement ............................................................................................. 78 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, Chairman, Committee on the 

Judiciary, and Member, Subcommittee on the Constitution, Civil Rights, 

and Civil Liberties ............................................................................................... 7 

APPENDIX 

Material Submitted for the Hearing Record .......................................................... 105 

(1) 

ECPA REFORM AND THE REVOLUTION IN LOCATION BASED TECHNOLOGIES AND SERVICES 

THURSDAY, JUNE 24, 2010 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON THE CONSTITUTION,

CIVIL RIGHTS, AND CIVIL LIBERTIES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 10:11 a.m., in 

room 2237, Rayburn House Office Building, the Honorable John 

Conyers, Jr., (Chairman of the Committee on the Judiciary) presiding. 

Present: Representatives Nadler, Conyers, Johnson, Chu, and 

Sensenbrenner. 

Staff present: (Majority) David Lachmann, Subcommittee Chief 

of Staff; Stephanie Pell, Counsel; and Art Baker, Minority Counsel. 

Mr. CONYERS. The Subcommittee will come to order. Obviously, 

I am not the Chairman of this Subcommittee, but I think through 

common agreement with the Members that are here, we will not 

detain this distinguished group of panelists any longer. 

This is a very important continuation of discussions that the 

Constitution Subcommittee has been engaged in, and it essentially 

revolves around cell phone technologies and how they have 

changed, but how the law hasn’t changed. And we are trying to see 

if we can come together to sort out some of the differences in views 

that are coming out of the court. And, of course, I think very few 

of us can anticipate the technologies that are evolving so rapidly. 

I would like to invite the former Chairman of the Judiciary Committee, Jim Sensenbrenner, the Ranking Member of this Committee, to begin our discussions. 

Mr. SENSENBRENNER. Thank you very much, Mr. Chairman. And 

as you know, I have to give a statement on the floor a little bit 

after 10:30, so I appreciate your giving Republicans the first word 

this time. And, you know, this is somewhat unprecedented, and 

again, I appreciate your indulgence. 

Today’s hearing is the second in a series of hearings to examine 

the need to update the Electronic Communications Privacy Act of 

1986, or ECPA for short. This hearing addresses cell phone site information and other location based technologies. 

A collection of civil liberty organizations and telecom companies 

have proposed a series of principles for ECPA reform, including law 

2 

enforcement access to cell phone and cell site location information 

should require a warrant based on probable cause for both prospective and retrospective location data. 

Second only to the advent of personal computing, this is a technical revolution with mobile communication devices. Industry trade 

groups estimate that at the end of 2009 there were over 285 million 

wireless subscriber connections and over 2 trillion annualized minutes of cell phone use. Almost 23 percent of U.S. households today 

are wireless only. 

As I have said before, at the intersection of all the new technological developments and capabilities are the privacy rights of the 

public, the economic interest in expanding commerce, the public 

policy of encouraging the development of even better technologies, 

and the legitimate investigative needs of law enforcement professionals. 

As cell phones have created greater efficiency for consumers, 

they also have created greater efficiency for criminals. Fortunately, 

they also provide new ways for law enforcement to investigate 

crimes. 

There seems to be confusion, or at least a difference of opinion, 

as to exactly what location information is acquired by which technology. Some technologies may only identify the general area in 

which the target is located, and others can be more precise. It is 

important for this Committee and Congress to clarify the true nature of these technologies before we embark on reforms to ECPA. 

There also seems to be confusion in the courts, or a difference of 

opinion, on what portions of ECPA apply to these technologies and 

under what standard cell location information should be aquired. 

Considering that ECPA was enacted in 1986, well before the proliferation of cell phones and other technologies, I think it is fair to 

say that the statute does not speak specifically to these issues. 

At a fundamental level, traditional pen register and trap and 

trace data are the telephone numbers dialed from—or the telephone numbers dialed to from that particular telephone. In Smith 

versus Maryland, 1979, the Supreme Court ruled that an individual has no reasonable expectation of privacy in the information 

gathered by these pen and trap devices. 

As the Internet and cell phone technology advanced, Congress expanded the pen/trap statutes to include certain non-contact information from e-mails and cell phone calls. In enacting the Communications Assistance to Law Enforcement Act of 1994, or CALEA, 

Congress specifically instructed that a person’s location information 

cannot be acquired solely pursuant to a pen register. 

The Stored Communications Act, an act that is a part of ECPA, 

governs law enforcement requests for various types of stored information. Under an intermediate standard of specific and articulable 

fact, courts have widely held that the government can use the second communications act—Stored Communications Act; I am 

sorry—to acquire subscriber records, including retrospective cell location data. 

However, the Third Circuit Court of Appeals is currently considering the application of the statute to retrospective cell site location 

information. The United States has appealed the denial of an order 

for historical information, even though the government complied 

3 

with the provisions of the statute, then based their application on 

specific and articulable fact showing that the information is relevant to an ongoing criminal investigation. 

From co-mingling of the pen and trace statutes and the Stored 

Communications Act has evolved a hybrid order for requests of certain prospective cell site information. Some courts have accepted 

this theory and some have not, opting instead to require the government to obtain a warrant to enter Rule 41 of the Federal Rules 

of Criminal Procedure. 

While there may very well be a need to clear up the confusion 

in the area of obtaining prospective cell site location information, 

it does not necessarily follow that the appropriate remedy to any 

ambiguity would be a Rule 41 search warrant based upon probable 

cause. 

I thank the witnesses today, and I look forward to their testimony. 

Let me say this is a very complicated area. It is not one that I 

think reeks of partisan divisions. I think we all know that a 24- 

year-old original law and a 16-year-old second law is way out of 

date compared to where the technology is at. And in order to clear 

this up for everybody, whether it is the courts, the law enforcement, the cell phone providers and everybody else, Congress needs 

to be very professional in doing what needs to be done to bring this 

up to date and know that haste may make waste. Thank you. 

Mr. CONYERS. Thanks, Jim Sensenbrenner, for your opening comments. 

And I now turn to Hank Johnson, himself a former magistrate 

in the Atlanta court system, and presently the Chairman of the 

Courts and Competition Subcommittee in Judiciary. 

You are welcome to begin whenever you want, Chairman Johnson. 

Mr. JOHNSON. Thank you. Thank you, Mr. Chairman, for holding 

a very important hearing. 

Looks like my mic is not working, so I will just speak loudly. 

This important hearing will give Members the opportunity to examine the Electronic Communications Privacy Act with respect to 

location based technologies such as cell phones and smart phones. 

The Electronic Communications Privacy Act provides the standards 

for law enforcement access to the electronic and wireless technology 

we use. 

Specifically, this hearing will give Members the opportunity to 

hear from witnesses about reform under the Act and issues relating 

to historical and real-time location data. This hearing is timely, as 

mobile communication devices have evolved from being little more 

than a convenience for the wealthy to a basic necessity for most 

Americans. Cell phones have transformed the way we communicate 

and work with each other on a daily basis. In today’s society it is 

more common for one to have a cell phone rather than a traditional 

landline phone. 

According to 2009 Wireless Association report, there were approximately 277 million cell phone service subscribers in the 

United States last year. That is about 90 percent of the overall population. Whenever the subscribers have their cell phones on, the 

phones can automatically scan for cell towers and register location 

4 

information with the network. This has led to substantial privacy 

concerns, as cell site data may be collected without a person’s 

knowledge. 

Further, some data provides the ability to track all of a person’s 

movements on a relatively precise and continuous basis. When it 

comes to law enforcement and national security, the value of a person’s location at a particular moment in time cannot be overstated. 

Criminal investigators can use this information to find a child that 

has been kidnapped or to apprehend a dangerous criminal. 

While the benefits of technology to aid law enforcement are 

great, it is important to remember that Americans have privacy 

rights. The founding fathers recognized that citizens need privacy 

for their persons, houses, papers and effects. While technology has 

been advancing at the speed of light, that basic principle the framers had in mind when they drafted the Constitution has not 

changed. Therefore, it is important to have a balance between user 

privacy expectations and law enforcement needs. 

I want to deviate from my prepared remarks to let you know 

about a recent experience that I had. This week while I was here 

in Washington, I got a call from my scheduler over here at the 

Capitol, who told me that she had heard from my dealership that 

my car had registered—sent back a message that it needed—it was 

time for an oil change. And so I had the OnStar technology in the 

car, but I did not know that whatever data recorder is in the car 

would notify the dealership that the car itself needed some topping 

off of the oil. 

And that is a sobering to me to know that someone sitting up at 

a computer terminal can see where I am, where my car is—at least 

where my car is—and what kind of condition it is in. They probably 

know how fast I drive it. And can that information be shared on 

a commercial basis without my knowledge? Those are some of the 

issues that we will be facing in the future. 

The ability to monitor communications has grown enormously. 

As technology continues to expand, Congress should adjust laws accordingly to keep up with modern technology. And by the way, 

when I get home, the first thing I am going to do is look at that 

OnStar contract and see exactly what it provides for and what it 

does not provide for. 

It has come to Congress’ attention that the standards governing 

law enforcement access to historical and real-time cell site data regarding location information may be the most confusing area of the 

Act’s application to wireless technology. With more than 500 Federal magistrate judges serving in district courts around the country, there is no room for confusion when it comes to the Electronic 

Communications Privacy Act. If courts are issuing conflicting decisions with different standards regarding law enforcement access to 

this wireless location data under the Act, Congress should step in 

and act accordingly. 

I am anxious to hear from the witnesses today, as I have a number of questions. Should Congress step in and reform the Electronic 

Communications Privacy Act? If so, how should the Act be reformed to strike the proper balance between consumer privacy and 

law enforcement? What should law enforcement officers have to 

provide cell phone providers in order to obtain access to historical 

5 

and real-time data? Would it be premature for Congress to legislate, as there are unresolved Fourth Amendment issues? 

I hope our witnesses can shed light on these questions, and I 

look forward to hearing from the witnesses. And I yield back the 

balance of my time—and would request a working microphone. 

Mr. NADLER. [Presiding.] Thank you. You might try the one on 

the other side. 

Let me just say before I read my opening statement that Mr. 

Johnson’s opening statement raises some interesting possibilities. I 

didn’t know that the car told the dealership when it was thirsty. 

I am pretty sure pretty soon it may be telling the insurance company that you are not replacing the brake fluid often enough or 

whatever, and this raises real questions about your car communicating with other entities without your even knowing about it 

and perhaps influencing your legal liabilities or rights. 

Today’s hearing is the second in which this Subcommittee will 

consider the statutory framework Congress established in the 1986 

Electronic Communications Privacy Act, ECPA, in light of the enormous technological advances in electronic communications and 24 

years since ECPA’s passage. 

While the first hearing was a general introduction to several 

ECPA reform issues that should be examined, this hearing will 

focus specifically on advances in cellular location based technologies and related services and how such technologies, while enriching our lives, can provide more precise and, to many of us, sensitive information about where we may be located at any given 

time. 

So today we continue our examination of whether ECPA still 

strikes the right balance between the interests and needs of law 

enforcement and the interests of the American people in privacy. 

If we conclude from this examination that the balance of interests 

between law enforcement and personal privacy must be struck 

more finely, we will take the necessary legislative action. If we embark on that course, we must bear in mind the exigencies and complexities of the security environment in which law enforcement 

must act. 

Moreover, if we act, we must do so with the full knowledge that 

any legislative changes to ECPA must nevertheless sustain the 

public’s confidence in the security of their communications, or it 

can harm both the robust market for cell phones and the rapid innovation that is fundamental to that market’s health. Because 

ECPA inevitably involves the interaction of all these important and 

complex considerations, we are taking the time through a series of 

multiple hearings to educate ourselves carefully and fully before 

beginning to engage in any legislative action. 

This Subcommittee’s exploration of where the appropriate balance may lie with respect to location information must surely include a lesson in location based technologies and services. After all, 

when ECPA was passed back in 1986, approximately 8 years before 

the GPS system was fully activated for public use, the only options 

one had for locating oneself on the road was still a road atlas or 

gas station. Now, as we will see, the GPS is supplemented by an 

array of different location technologies and the myriad applications 

they support. 

6 

We are honored to have certain witnesses here today, who are 

experts in these technologies. They can give us the necessary background to embark upon an understanding of how they work, what 

types of information and records they can generate and store, and 

how they can be of assistance to law enforcement in appropriate 

circumstances. 

This initial educational effort is in my view not only warranted, 

but essential before we undertake any effort at amending or otherwise reforming ECPA. After we hear the terrain described, we will 

move on to other questions today—namely, how is ECPA currently 

being applied to these location based technologies and services by 

the courts? 

Without stealing his thunder, we have one very distinguished 

witness here today, who will tell us in the most respectful way, I 

am sure, that Congress needs to give better guidance to the courts 

with respect to the standards governing law enforcement access to 

certain types of location based information. He is a magistrate 

judge working, as we say, in the trenches, who has grappled with 

how to apply ECPA to law enforcement requests for various types 

of location based information. 

In many respects, at least for the moment, the testimony and 

discussions today may raise more questions than they answer. 

Since we are to hear about technologies both existing and those 

that are foreseeable that are revolutionary, certainly, by 1986 

standards, I want to acknowledge that our task will be a challenge 

to find the appropriate balance between privacy and law enforcement interests, to protect the public while preserving consumer privacy and confidence, to support rapid technological innovation yet 

discern standards for law enforcement access that will not become 

outdated with each new generation of technology every 2 or 4 

years. 

As I indicated, this journey will at least initially take the form 

of a dialogue, and this Subcommittee needs the assistance and 

input of all stakeholders—law enforcement, private industry and 

civil liberties groups alike—in order to have any hope of getting 

this right. We look forward to speaking with you formally or informally and seeing you at future hearings. 

The Chair will now recognize the distinguished Chairman of the 

full Committee for an opening statement. 

Mr. CONYERS. Thank you, Chairman Nadler. I am going to put 

my statement in the record, and I will make just a couple observations. 

[The prepared statement of Mr. Conyers follows:] 

7 


JC-1.eps
8 


JC-2.eps
9 


JC-3.eps
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JC-4.eps
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Mr. CONYERS. The first is that what our distinguished judicial 

witness did is extremely important; in meeting this Committee 

under your guidance to begin this evaluation of the relationship between the incredible outpouring of technology and the fact that our 

laws sometimes are not keeping up with it. 

In addition, we have the problem of not being able to anticipate 

what new technology is coming out in the first place, so it is a sort 

of built-in problem. Do we try to process the congressional role in 

the normal way, or do we try to anticipate what is going to happen? 

But I think the basic thing that Judge Smith has pointed out and 

that reinforces the importance of this hearing is that the courts are 

in disarray themselves, and understandably so. We have been looking at the 1986 law, and essentially it was created to govern law 

enforcement access to electronic and wire communications. It created different standards, some that are very high—what is a super 

warrant, anyway, for wiretapping—and some that are very low. 

What is a subpoena for telephone toll records? 

And so this law, written before the technology existed, has understandable problems. But it is to the credit of this Committee 

that we have embarked on this discussion. This is the second of a 

series, and it sure won’t be the last. 

And it is in this spirit that I commend all five of you distinguished witnesses, experts, in coming here to help us unravel this 

problem today. I thank you for your presence. 

Mr. NADLER. And I thank you. 

Without objection, all Members will have 5 legislative days to 

submit opening statements for inclusion in the record. We will now 

turn to our panel of witnesses. 

Our first witness is Matt Blaze, who is an associate professor of 

computer information science at the University of Pennsylvania, 

who serves as director of the distributed computing laboratory and 

conducts research on computer security, cryptography, network 

communications and surveillance technology. Much of his research 

focuses on methods to strengthen critical infrastructure against 

criminals and other unauthorized eavesdroppers and to help ensure 

that authorized surveillance systems work as intended in the rapidly changing environment in which they must be reliable. 

Prior to joining the faculty at Penn, he worked for 12 years on 

the research staff at AT&T Labs in New Jersey. Professor Blaze 

earned his Ph.D. in computer science from Princeton, a master’s 

degree from Columbia, and his undergraduate degree from the City 

University of New York. 

Our second witness, Michael Amarosa, is senior vice president of 

public affairs at TruePosition, a location based technology company. Prior to joining TruePosition, Mr. Amarosa spent 24 years 

with the New York City Police Department in various managerial 

capacities, including 3 years as deputy commissioner for technological development, where he was directly responsible for the design and implementation of the city’s E-911 system. 

Mr. Amarosa is also chairman of the E-911 Institute, an organization that provides administrative and policy support to the congressional E-911 Caucus. Mr. Amarosa received his J.D. cum laude 

12 

from the New York Law School, a master’s degree in public administration from NYU, and his B.A. from St. Peter’s College. 

Mark Zwillinger—I skipped somebody; oh, I am sorry—Richard 

Littlehale is an assistant special agent in charge of the Tennessee 

Bureau of Investigation Technical Services Unit. In this capacity he 

coordinates and supervises the use of advanced and covert technologies in support of law enforcement operations, and he is a Federal task force officer with an FBI joint cyber crime task force. Mr. 

Littlehale is a graduate of Bowdoin College and received his J.D. 

from Vanderbilt Law School. 

Mark Zwillinger is a founding partner of Zwillinger Genetski 

LLP, where for 10 years his practice has focused on issues related 

to the Electronic Communications Privacy Act, the Wiretapping 

Communications Act, surveillance law and privacy. Previously, Mr. 

Zwillinger ran the privacy and security practice groups at 

Sonnenschein Nath & Rosenthal and at Kirkland & Ellis. Prior to 

that he served 3 years as a trial attorney in the computer crime 

and intellectual property section of the criminal division of the Department of Justice. Mr. Zwillinger earned his J.D. magna cum 

laude from Harvard Law School. 

And finally, Judge Stephen Smith has served for the last 6 years 

as United States magistrate judge for the Southern District of 

Texas, Houston Division. Before his appointment to the bench, he 

practiced law for 25 years in the Houston office of Fulbright and 

Jaworski LLP. Judge Smith earned his B.A. cum laude from Vanderbilt University and graduated from the University of Virginia 

Law School. 

I think we have two witnesses from Vanderbilt at some point. I 

am pleased to welcome all of you. Your written statements in their 

entirety will be made part of the record. I would ask that you summarize your testimony, or try to, in 5 minutes or less, which will 

be liberally construed. To help you to stay within that—— 

We don’t have the timing. Do we have the timing thing? Yes. 

To help you stay within that time limit, there is a timing light 

at your table. When 1 minute remains, the light will switch from 

green to yellow and then red when the 5 minutes are up. 

Without objection, the Chair is authorized to call a recess of the 

hearing at any point, which we will endeavor to do only in case 

there are votes on the floor. 

Before you begin, it is customary for the Committee to swear in 

its witnesses, if you would please all stand and raise your right 

hand to take the oath. 

Let the record reflect that the witnesses answered in the affirmative. 

You may be seated. We will now hear from our first witness. Professor Blaze is recognized. 

TESTIMONY OF MATT BLAZE, ASSOCIATE PROFESSOR, 

UNIVERSITY OF PENNSYLVANIA 

Mr. BLAZE. Thank you, Mr. Chairman, for the opportunity to talk 

to the Committee today about the technology of wireless communications and tracking and wireless communications systems. It is 

a great honor to be here, and I am humbled by the task of trying 

13 

to distill what is in fact not just a very complex legal area, but a 

very complex and often confusing technological area. 

Wireless technology, as we all know at the risk of gross understatement, has since 1986 exploded in popularity and undergone 

numerous generational changes that have completely changed the 

landscape not only of how we communicate and interact with each 

other, but of how the underlying technology works and how we 

think about it. 

So what I would like to discuss first of all is the way cellular 

telephone networks work and are structured. The cellular telephone, unlike the traditional wire line telephones that we grew up 

with, uses the radio to communicate with the wired telephone network instead of a cable connected to your home or office. 

This is essentially by itself a revolution in the way we think 

about the telephone, because it is no longer fixed to a particular 

location. We carry our phones with us now. Rather than thinking 

about the telephone located in a place that we call, we think about 

the person we want to call, because we expect them to have their 

telephone with them. 

We can move around with these devices usually anywhere in the 

country, or almost everywhere in the country. And we expect our 

telephones to work, and largely they do. I was surprised to discover 

my telephone worked in the D.C. Metro on my way here this morning. 

Cellular providers accomplish this by deploying a network of relatively closely spaced local radio base stations, those ubiquitous 

cellular telephone towers that we see in neighborhoods and alongside highways that are each responsible for completing telephone 

calls made by cell phones in their immediate area. 

Cell phones, as they move and as they are turned on, discover 

the base station with the strongest radio signal and perform a registration process identifying themselves, establishing that the user 

has a valid cell phone service, and identifying the local base station 

that is best equipped to process the call by virtue of the strength 

of its radio signal. 

Now, it is very important that coverage be contiguous, so essentially what cellular providers do is divide their coverage area, essentially the United States for most of the cellular providers that 

are there today, into a mosaic of local base station service areas 

that are called, in the terminology of the industry, sectors. So the 

base station with which a phone communicates covers an area 

called the local sector that it has good radio coverage for. 

Now, when you move from sector to sector or when you place a 

call, cellular phone companies keep track of that so they know 

where incoming calls should be routed, which base station they 

should send the call to to have your phone ring. When you place 

the call, they know that you already have established that you 

have a valid account and have paid your bill and so forth. So cellular—— 

Mr. NADLER. On a technical point, when you move around with 

your phone in your pocket, they know where it is only if you make 

the phone call, or just because it is there emitting a signal? 

Mr. BLAZE. No, any time the telephone is on, the phone periodically will check the signal strength of the local base station, send 

14 

it a message saying essentially, ‘‘Can you hear me? I am in your 

sector. Please register me.’’ And the phones periodically do this. 

They do this when they are turned on. They do this as they move 

from place to place. 

And in order for you to be able to receive incoming calls, it is 

very important that the phone company, this wireless company, 

keep track of which sector you are in, because that is how the 

switching equipment knows which base station to send an incoming 

call to cause your telephone to ring. So any time the phone is on, 

any time it moves around, whether it is actually making or receiving a call, the wireless provider is tracking the current base station 

with which a phone is associated. And that has been a central part 

of how the network works. 

Now, how do we track phones? What kind of location tracking 

technology is available in this world of everyone carrying around 

a wireless handset? Well, the most prominent location tracking 

technology, the one that is most visible to the end user, is called 

GPS, which makes use of the global position system satellites originally put up by the U.S. military that allow a device with a satellite receiver and a view of the open sky to calculate very precisely 

its own location. 

Mr. NADLER. Excuse me. And your cell phone in your pocket has 

that capacity to talk to the satellite? 

Mr. BLAZE. Well, many cell phones do, but not all do. And in fact, 

although GPS technology is the most prominent location tracking 

technology for the end-user, it is actually not the most important 

technology for the surveillance and tracking point of view. 

GPS has high accuracy. The latest generation of equipment can 

precisely locate something to within about 10 meters of accuracy, 

less under some circumstances. And it can be done by a device by 

itself with no other infrastructure than the ability to receive the 

satellite signals. 

So we have GPS mapping systems in cars and so on. And the latest generation of telephones often include a separate GPS receiver 

and some mapping software and other software that can emulate 

the functions of, for example, a car GPS receiver. 

So from the user’s perspective, we often think of GPS as being 

the equivalent of location tracking. And we might think that if we 

don’t have a GPS receiver on our telephones, that no one might 

know where we are. But in fact that is not true. GPS is actually 

not used by the cellular telephone network for tracking at all. And 

law enforcement use of GPS for surreptitious surveillance with cell 

phones is less important than other kinds of telephone-based tracking when we are talking in the context of wireless communication. 

Now, the most basic kind of wireless tracking with a cell phone 

is to simply keep track of which sector the telephone is located in 

at any given moment. As phones move from place to place, as I 

mentioned, they register their location with the local base station. 

The wireless company keeps track of that. It has to, because if 

it doesn’t, it won’t know how to get calls to you. And so if we keep 

track of which sector a phone has registered with, we effectively 

know where it is within the service area of that sector. 

Now, a natural question to ask is, ‘‘Well, how accurate does this 

allow us to locate the phone? How big a radius might the phone 

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be in when it is registered in a particular sector, as phones do continuously when they are on?’’ And the answer is today is very different from what it was 25 years ago. 

In the original cell systems, which were analog, not widely used, 

very expensive, and there weren’t that many cellular customers, 

the incentive for the wireless service provider was to try to get by 

with as few base stations as possible that would adequately cover 

the service area in a way that would satisfy their customers. There 

weren’t very many customers of cell phones in the earliest systems, 

and so really the limiting factor of how far apart base stations 

could be was the distance that the radio signals would travel. 

But that meant that a sector might be several miles in diameter, 

up to 10 or sometimes even 15 miles in diameter in the early cell 

phone systems in areas with wide-open terrain and relatively few 

users. So knowing that sector location in early cell phone systems 

only allowed you to locate, you know, a city or a neighborhood in 

which a phone was located. 

But cell phone systems have become so explosively popular, compared with the way we thought about them 25 years ago. There 

have been other factors that have resulted in the sector size steadily shrinking. 

There are a limited number of simultaneous users that can be 

served by a cellular base station. When cellular technology wasn’t 

as popular and was very expensive, this wasn’t much of a factor. 

The ability of radio signals to penetrate the area was the limiting 

factor. 

But today the limiting factor in how far apart space stations can 

be is the number of customers they have to serve. And as this technology has exploded, the number of customers in any given area 

has gone explosively up, particularly in urban and densely populated areas. 

At the same time we as cellular users have more choices. There 

is more competition, and we have become more demanding of our 

cellular service providers, and we expect our phones to work in 

more and more places. We expect the coverage to be more and more 

reliable. As I mentioned earlier this morning, I discovered my 

phone was able to receive a call to my surprise in the Metro subway. 

Being able to provide service over a continuous area requires, 

again, that we include sectors that cover dead spots and that are 

able to provide good signal coverage everywhere we go. Those ubiquitous advertisements—‘‘Can you hear me now?’’—reflect cellular 

service providers’ competition with one another to provide base stations that cover more and more service area more and more densely. 

So the effect is that the size of a sector today is far smaller than 

it was 25 years ago because of the natural evolution of the technology. 

Mr. NADLER. Could you sum up, perhaps? In particular, tell us 

how big a sector is these days. 

Mr. BLAZE. Right. So the largest sectors can still be several miles 

in diameter in rural areas, sparsely populated areas. But the latest 

technology has trended toward what are called variously microcells, 

picocells and femtocells that are designed not to serve an area of 

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miles in diameter, but rather to serve a very, very specific location, 

such as a floor of a building or even an individual room in a building such as a train station waiting room or an office complex or 

hotel or even a private home. 

So as we have moved toward very small sector locations, we can, 

if a user is in one of these very small sectors, essentially determine 

the location—— 

Mr. NADLER. Exactly where he is—exactly where he is. 

Let me ask one question, and I have to ask you and continue on 

to the next witness. It is physically necessary for the system to operate for the system to know where your cell phone is in order to 

route the calls there. And obviously, the smaller the area, the fewer 

the competing calls, and that is why it gets smaller and smaller, 

with obvious implications for accuracy of telling us. 

What is the technological necessity and what is the practice of 

retaining this information? In other words they need to know 

where you are now so they can route the call. Do they need to 

know where you were an hour ago or a day ago? And do they retain 

this information? And if so, why? 

Mr. BLAZE. Well, every service provider—I should say I am not 

speaking for any service provider, and every service provider will 

have its own practices—but in general, service providers record everything essentially forever. This information is extraordinarily 

valuable for business, marketing and technical purposes. It tells 

them where their network needs to be improved, were dead spots 

are, and how their customers use their phones. 

[The prepared statement of Mr. Blaze follows:] 

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PREPARED STATEMENT OF MATT BLAZE


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Mr. NADLER. Thank you. Thank you very much. I am sorry we 

went over here, but we have to get a basic education in the basics 

here so we know what we are—so at least we think we know what 

we are doing. 

Our next witness is Mr. Amarosa. 

TESTIMONY OF MICHAEL AMAROSA, SENIOR VICE PRESIDENT 

FOR PUBLIC AFFAIRS, TRUEPOSITION 

Mr. AMAROSA. Good morning, Mr. Chairman and Members of the 

Subcommittee. My name is Michael Amarosa, and I am the senior 

vice president of TruePosition. It is a privilege to appear as part 

of this Subcommittee’s examination of the Electronics Communication and Privacy Act. 

Wireless technology plays an ever-increasing role in the daily 

communications of Americans, including during emergency situations. Of the 300,000 emergency calls to 911 daily, over half are 

now from wireless phones. This shift has the ability to locate wireless calls, the core element of our Nation’s emergency response 911 

structure. 

Expeditious and effective emergency response has been at the 

center of my professional career. I spent 24 years working in public 

safety, and it was my honor to manage the largest 911 center in 

the Nation out of the New York City Police Department. During 

that tenure we completed major upgrades of the system and infrastructure that we needed to support the NYPD’s mission. 

Since leaving the PD, my role with TruePosition has given me 

the opportunity to work with a range of agencies in tackling ongoing and heightened national effort to bring modern technology to 

support emergency response, preparedness and investigations. 

Long before wireless technology became prominent, policymakers 

and emergency response officials embraced the critical need to 

quickly locate individuals facing an emergency. The faster help arrives, the more likely lives are to be saved. 

This premise underlies the FCC’s mandate that the wireless operators provide public safety agencies with location information in 

an emergency situation. The requirement, as you know, is known 

as Enhanced 911. It dictates that the location of the wireless 911 

calls must be transmitted to the appropriate emergency call center. 

TruePosition’s very existence has evolved from the wireless location mandate. We are the leading provider of location determination solutions. Currently, two technologies address the FCC’s location accuracy requirements. They are GPS, which was discussed 

earlier, and Uplink Time Difference of Arrival. 

Both of these technologies use what we know about radio waves. 

We are able to measure the distances from a known point such as 

a cell phone to an unknown point such as satellites and transmitters, because we know radio waves travel at constant velocity, and 

are able to make calculations to locate the phone from that point. 

UTDOA differs from GPS, and the network base works in virtually any environment. It is not affected by obstructions such as 

tall buildings or concrete walls. It is able to locate all mobile 

phones, including those that are not GPS-enabled. Its accuracy is 

very high. It typically falls within 50 meters of that accuracy level. 

32 

Technology is extremely useful in law enforcement situations as 

well. Police used UTDOA recently to rescue a woman kidnapped in 

Hamilton County, Ohio, who was locked in the trunk of a vehicle. 

GPS was not an option, because it could not penetrate the metal 

trunk. A UTDOA location platform allowed police to constantly 

monitor the victim’s location and apprehend the kidnappers. 

In addition to serving 911 calls, wireless location technology has 

evolved in several public and private sector applications, including 

locating victims suffering from Alzheimer’s, autistic children. It can 

be used to locate contraband cell phones in prison environment as 

an alternative to prison jamming. 

Wireless technology has revolutionized communication. Unfortunately, it is also being used by criminals and terrorists. In the 2004 

Madrid bombings, terrorists used improvised explosive devices to 

attack morning commuting trains, killing 191 people and wounding 

over 1,800. Mobile phones were used to detonate these IEDs. Highaccuracy technology is our crucial element in preparedness, investigation and response to these dangers. 

TruePosition’s UTDOA technology delivers two key important 

elements in a mission-critical location—high accuracy and high reliability. It can provide information relating to the details of criminal conduct and be an important tool in preventing tragedy. It can 

present an additional dimension to the comprehensive information 

picture that intelligence and law enforcement officials use on a regular basis. 

TruePosition’s security solutions capture and analyze wireless 

data, including current activities, mobile events and interactions. 

The technology can help identify and track any mobile device in a 

real-time mode in any environment with high accuracy and reliability. It can be deployed in such areas as border security, critical 

infrastructure protection, and law enforcement to aid in forensic intelligence. 

Location technology has contributed to saving lives and personal 

property. To allow for the continued use and growth of this lifesaving technology, I urge that any government action in this area 

of wireless technology remain technology neutral. I commend the 

Subcommittee on its efforts to bring the ECPA up to date and appreciate very much the opportunity to appear before you today and 

welcome any questions, Mr. Chairman. 

[The prepared statement of Mr. Amarosa follows:] 

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PREPARED STATEMENT OF MICHAEL AMAROSA


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ATTACHMENT 


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Mr. NADLER. Thank you. 

I will now recognize Mr. Littlehale. 

TESTIMONY OF RICHARD LITTLEHALE, ASSISTANT SPECIAL 

AGENT IN CHARGE, TECHNICAL SERVICES UNIT, TENNESSEE BUREAU OF INVESTIGATION 

Mr. LITTLEHALE. Chairman Nadler, Ranking Member Sensenbrenner and honorable Members of the Subcommittee, my name is 


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Richard Littlehale. I am the assistant special agent in charge of the 

Technical Services Unit of the Tennessee Bureau of Investigation, 

and I have spent the better part of 15 years using communications 

records to protect the people of Tennessee. 

I am grateful to the Subcommittee for giving me the opportunity 

to share my perspective on how location information derived from 

communications technologies can be invaluable in the most critical 

of law enforcement investigations. I offer testimony here today on 

my own behalf, based on my own experience. 

As communications technology evolves, so must the laws that 

govern it. And there is always room for clarification. That said, I 

believe that the balance struck between privacy and public safety 

in the existing ECPA framework is in a broad sense a reasonable 

one, and I would respectfully call your attention to some risks inherent in upsetting the current paradigm. 

I cannot overstate the value of location evidence to law enforcement. It can help find a kidnapped child, apprehend a dangerous 

fugitive or prevent terrorists from following through on a violent 

plan. We are not just talking about cell site information either. 

Imagine a pedophile grooming a potential child victim using a chat 

application on a smartphone. Law enforcement must be able to 

quickly generate and serve process on however many service providers are necessary to find that subject before the unspeakable 

happens. 

The current legal framework distinguishes between network 

transactional location records stored and recorded by the service 

provider in the ordinary course of its business and demand-based 

location information generated solely based on a law enforcement 

request. 

This information is reasonable, because it is—this framework, 

rather, is reasonable, because it is consistent with other ways location information can be obtained and used by law enforcement and 

because it is consistent with the view that information voluntarily 

turned over to a third party enjoys less privacy than those things 

we keep from the outside world. 

A person’s location at a particular time can be derived from any 

number of sources other than mobile devices. A bank will have 

records of a customer’s use of a credit card or ATM card in their 

possession that would show exactly when and where that particular card was used. A transportation authority might have 

records of when a commuter passed by a particular tollbooth based 

on the information provided by their commuter pass. 

Those records can currently be obtained with a subpoena in most 

cases. Should that standard change? Even the law of tracking devices permits installation and monitoring without probable cause 

under some circumstances. 

Complexity is hardly foreign to the Constitution. The same piece 

of property—a person’s suitcase, say—may be governed by completely different legal standards when it is laying on a closet shelf, 

in the trunk of a car, or passing through a border checkpoint. 

If we suppose that a blanket standard is necessary, we must consider the consequences of rounding up to probable cause in all 

cases. Location information can be used to good effect in many instances where law enforcement may not have developed probable 

58 

cause. Further, the time required to generate a search warrant and 

have it signed may itself hamper law enforcement’s efforts to move 

quickly in an investigation. 

I fully acknowledge that the above argument could also be used 

in favor of relaxing the search warrant requirement completely in 

order to make law enforcement more efficient in all investigations. 

Of course, such a thing would be foreign to our bedrock legal principles. In this case, however, the present balance of judicial supervision and law enforcement efficiency has existed for some time 

and should not be abandoned without a demonstrated need. 

Finally, even a blanket standard is going to have trouble covering everything in this area. Imagine our pedophile with a 

smartphone again. Say he is using the WiFi in a coffee shop, and 

that activity generates information that can be localized to that 

particular shop at a particular time. That is information location 

information far more accurate than a cell sector. Would it require 

a search warrant to get that information from the shop’s Internet 

service provider? 

Generating a search warrant for each and every child exploitation lead will slow the processing of those leads. If that is acceptable, then so be it. But it is a downstream effect that must be considered. 

And what about broader locations? Are we only talking about cell 

sites? What if I just want to know what market your phone is 

using, what city you are in? That is location information. 

We must also remember that legal barriers are not the only ones 

that keep communications records out of law enforcement hands. In 

many instances we are unable to utilize evidence that would be of 

enormous value in protecting the public, because the technologies 

used to carry and store that information are not accessible to us, 

no matter what legal process we obtain. 

Encryption, smartphone, countermeasure applications, and a dizzying variety of communication streams are walling off more of the 

evidence we need at a steadily increasing rate. If the law enforcement community does not successfully bridged this gap with legal 

reform, training, solutions development and funding, then our ability to protect the public using this information will degrade at the 

same breakneck pace. 

Whenever our society moves forward with the privacy versus 

public safety debate, we should be mindful that any redefinition of 

law enforcement access to the information it needs, whether by altering legal barriers or allowing private corporations to elect new 

technological barriers, may well come at a price. 

Admittedly, we cannot let extreme situations rule the law. But 

neither should we ignore the fact that they exist. What seems like 

a small change in abstract setting may seem less so when I am 

standing on your doorstep at 4 in the morning, and your child is 

missing, and every second counts. 

Thank you for giving me the opportunity to share one law enforcement perspective on the need for caution as we open dialogue 

on ECPA reform. I encourage you to seek the input of a wide range 

of law enforcement experts as you move forward on this critical 

issue. And I look forward to your questions. 

[The prepared statement of Mr. Littlehale follows:] 

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PREPARED STATEMENT OF RICHARD LITTLEHALE


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Mr. NADLER. Thank you. 

Mr. Zwillinger is now recognized. 

TESTIMONY OF MARC J. ZWILLINGER, 

ZWILLINGER GENETSKI, LLP 

Mr. ZWILLINGER. Thank you, Mr. Chairman. 

I am very pleased to be here today to discuss ECPA reform generally and location data specifically. I have been working with 

ECPA for over 13 years—first, as a DOJ attorney who used to 

teach prosecutors and agents how to acquire electronic evidence, 

and for the last 10 years as a lawyer, helping ISPs and wireless 

providers respond to the government’s request for data. As a result, 

I can tell you three things about ECPA. First, it is complicated. 

Second, it has done a fairly good job over the past 20 years in 

striking the right balance between law enforcement needs and user 

privacy. But now it is definitely in need of reform to bring its privacy protections into the modern age of cloud computing, social networking and mobile networks. 

One area where ECPA no longer functions well is with regard to 

location data. This morning I want to focus—— 

Mr. NADLER. Excuse me. Could you tell me what you—tell us 

what you mean by cloud computing? 

Mr. ZWILLINGER. The storage of data as opposed to locally on 

your computer in your possession, out in the network on the Internet in the cloud. 

Mr. NADLER. Thank you. 

Mr. ZWILLINGER. With regard to location data, ECPA is not functioning very well anymore. And I would like to focus on three of 

the issues I put forth in my written statement—one, the type of location data that raises privacy concerns; second, the discrepancy 

between acquiring real-time data and historical data; and third, to 

answer Mr. Johnson’s question, the reason why Congress should 

not wait for the courts to resolve these issues. 

First, as to location data generally, of course, Mr. Littlehale is 

right. Law enforcement obtains a wide variety of records that provide insight into a person’s past location. For example, a landline 

call or a credit card receipt can shed light on where a person was 

at a given moment in time. But when those transactions occur, it 

is reasonably clear that some record is being made of that event, 

and only limited information about an individual’s movements is 

disclosed. 

The type of location data that concerns us here has the opposite 

characteristics. It may be collected without a person’s knowledge, 

and it allows the tracking of a person’s movements on a relatively 

precise and continuous basis. This type of tracking is much more 

persistent and much more intrusive than the disclosure that I 

bought a coffee at Starbucks at 9 o’clock this morning. 

This is why it is also a mistake to think about ECPA reform solely in the context of relatively imprecise cell site location information, because whatever the limitations are on cell cite limitation 

today, cell tower data will rapidly evolve into the more precise and 

consistent information that is being supplied by GPS technology. 

Second, as to getting historical data versus prospective data, the 

existing statutory framework clearly distinguishes between the 

66 

two. As to past location data, the application of ECPA is fairly 

straightforward. Location data, at least for calls, is properly considered a record or other information pertaining to a subscriber or 

customer, which the government may get under Section 2703(d) of 

the Stored Communications Act using the specific and articulable 

facts standard that is explained in Judge Smith’s chart. 

But the framework for real-time data is not anywhere near as 

clear. On their face you would think that the pen register and trap 

and trace statutes would allow the government to access location 

data under a relatively low standard that requires a court to issue 

a pen and trap order whenever a government agent certifies that 

the location information is relevant and material to an ongoing investigation. 

But when Congress passed CALEA in 1994, it precluded law enforcement from relying solely on pen/trap authority. The government’s workaround, which you have heard about, has been to combine the authority of a pen/trap order with the historical request 

for data under Section 2703(d). But this doesn’t work. 

An order under 2703(d) can only provide access for historical 

records, not prospective data. It is not a surveillance statute, and 

there are no provisions in 2703(d) that contemplate future surveillance or provide limitations on the duration and minimization and 

monitoring. So it can’t be the additional authority that Congress 

needed in 1994 when it said that law enforcement could not rely 

solely on pen/trap. 

So how can it be that there are different rules for obtaining information about where I was an hour before an order was signed compared to an hour after an order was signed? Those rules are entirely different and clearly to this date unresolved. 

Some courts have tried to fix this discrepancy by creatively applying the tracking device statute found in 18 USC 3117 to apply 

to both types of data, but as I described in my written testimony, 

I don’t think the tracking device statute can apply to a consumer’s 

own electronic devices. 

But the fact that courts are trying to do so is strong evidence of 

the need for Congress to step in and harmonize the before and 

after rules for the same set of information and to set a properly robust standard for the government to meet before it obtains precise 

location data. 

Finally, as to Mr. Johnson’s question, I don’t think Congress 

should expect that the problem will be resolved by the courts anytime soon. First, the application of the Fourth Amendment to location data is uncertain. Even if every device that emitted location 

information was considered a tracking device, the Fourth Amendment alone would not necessarily mandate a prior warrant to collect information from these devices. 

In fact, in Knotts and Karo, the leading Supreme Court cases, the 

court suggested that a warrant is only required when the data from 

a tracking device reveals information about private spaces. Certainly, cell phones may be carried into private spaces, but not always in private spaces. 

And second, just last week in the Quon case, the Supreme Court 

deliberately shied away from extending Fourth Amendment protections to rapidly evolving technology. 

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So in conclusion, I don’t think Congress should share the court’s 

reluctance to address privacy concerns created by modern technology. Competing claims over privacy rights are being litigated on 

a daily basis. And as everyone struggles to apply a 1986 law to 

technology that is becoming more precise in its ability to pinpoint 

location, the time is ripe for Congress to set out clear and sustainable rules that better balance user expectations and law enforcement needs in light of modern technology. 

Thank you for the opportunity to testify today. 

[The prepared statement of Mr. Zwillinger follows:] 

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Mr. NADLER. Thank you. 

And I will now recognize Judge Smith. 

TESTIMONY OF THE HONORABLE STEPHEN WM. SMITH, 

UNITED STATES MAGISTRATE JUDGE, SOUTHERN DISTRICT 

OF TEXAS 

Judge SMITH. Thank you, Mr. Chairman, Ranking Member, 

Members of the Subcommittee. I am honored by your invitation to 

appear at today’s hearing. I am a United States magistrate judge, 

but I am testifying on my own behalf this morning, not on behalf 

of any group or organization. But it is testimony informed by 

hands-on experience with ECPA over a number of years. 

Ordinarily, your Committee would probably be better served by 

hearing from a Supreme Court justice or Court of Appeals judge 

steeped in the law, able to give a full exposition of its strengths 

and flaws based on years of experience and observation. But on 

this topic, cell phone tracking, that would not be possible. Very few 

appellate courts have dealt with ECPA in any respect over the 

years, and as Exhibit B to my written testimony shows, not a single one to date has dealt with the question of legal standards or 

compulsory government access to cell site location information. 

Ponder this fact. For nearly a quarter-century, magistrate judges 

have been issuing tens of thousands of these orders under a fiendishly complex statute without any substantial guidance from a 

higher court. And I can’t think of another area of law in which that 

could be said. You know, FISA, perhaps—Foreign Intelligence Surveillance Act—but then FISA is a special case and was understood 

to be a departure from routine law enforcement for everyday crime. 

I believe that is an unhealthy state of affairs for our democracy. 

First, without a functioning system of appellate review, the process 

of refinement, clarification of statutory ambiguity and uncertainty 

cannot take place. And this is especially unfortunate for a statute 

as complex as ECPA. 

A more serious concern is that a basic check on judicial as well 

as prosecutorial power has been removed. Without the discipline of 

appeal, every magistrate judge essentially becomes a law unto himself or herself answerable to no one. And law enforcement is able 

to channel their ex parte applications to a judge known to have a 

more accommodating view of the law. 

Now, this does not happen with respect to ordinary search warrants. The cause of this unhealthy state of affairs, in my opinion, 

is the regime of secrecy that has enveloped—— 

Mr. NADLER. Excuse me. Why does this not happen with ordinary search warrants? 

Judge SMITH. Well, because ordinary search warrants are issued 

pursuant to a warrant under the statute under Rule 41, and under 

that rule the party whose house is being searched gets notice, receives a copy of the warrant. Typically, they are not sealed. 

Mr. NADLER. It is not ex parte. 

Judge SMITH. Right. It is not—well, it is ex parte, but before the 

search is carried out, the person whose home is being searched—— 

Mr. NADLER. Gets notice. 

Judge SMITH [continuing]. Gets notice. 

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Now, the cause of this unhealthy state of affairs, as I said, is the 

regime of secrecy. Under ECPA gag orders and permanently sealed 

cases prevent law-abiding citizens from finding out whether and to 

what extent their electronic lives have been intruded upon by government. Again, this does not happen when law enforcement 

searches your home or your office or your car. 

The difference boils down to notice. Now, without notice, and this 

can be pre-acquisition or post-acquisition, but without notice, due 

process of law becomes a dead letter. 

So I applaud the Committee’s efforts to reform ECPA to face the 

new technological advances of the 21st century, but the problem 

with 20th-century ECPA is not just that it failed to anticipate new 

technology. Few of us back then could have imagined the cell phone 

of today and what it can do. 

The problem is that it is an overly complex statute that was allowed to operate almost entirely in the dark, off the radar screen 

of the general public as well as appellate courts. Thus, the balance 

that it struck, at least in my view, between privacy and law enforcement has been eroded. And few seemed to notice, at least until 

now. 

Now, your task will be to strike a new balance that will be sustainable for our time and time to come. My prescription for sustainability is twofold—more bright lines and more sunshine. I believe 

the principles endorsed by the Digital Due Process Coalition go a 

long way toward the former goal. I think my written remarks suggest some ways to accomplish the latter. 

In closing, I want to thank this Committee for inviting the views 

of one of the hundreds of magistrate judges who wrestled in the 

trenches, as you say, with this statute for years. And with that, I 

would be glad to answer any of your questions. Thank you. 

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Mr. NADLER. I thank you. 

I thank all the witnesses. And we will start the questioning by 

recognizing myself for a while. 

Professor Blaze, with regard to newer technologies that measure 

time and angle of arrival, you state that according to the policy of 

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are made or received. What factors might it or does the carrier consider in electing whether to store such data or not? 

Mr. BLAZE. Well, the important thing to understand is that, first 

of all, this technology is not yet fully deployed in every cell site, but 

carriers are embracing time of arrival and angle of arrival calculations not just to comply with E-911 mandates for providing location 

during emergency calls, but because it provides them with extremely important information for managing their network. 

In particular, it tells them where their customers are located to 

resolution of typically about 50 meters. And it tells them where 

they move about, where—— 

Mr. NADLER. Why would they want to know within 50 meters 

where their customers are? 

Mr. BLAZE. Well, it tells them where new infrastructure is needed, where old infrastructure is redundant, whether the expensive 

real estate for a tower is paying for itself properly or whether they 

can afford to move it to another location, whether microcells are required, and so on. 

So it is very strongly in the interest of wireless carriers to collect 

this data as often as possible and as pervasively as possible, to 

store it effectively forever, and to analyze that data intensely just 

for the operation of its own business. 

Mr. NADLER. Thank you. 

Mr. Amarosa, I was struck by one thing you said. You said therefore the distance between two points—radio waves propagate at a 

constant velocity, obviously. Therefore, the distance between two 

points can be determined by measuring the time it takes the radio 

wave to travel between the two points and multiplying by the velocity of propagation of the radio waves to derive the distance. 

That assumes you know what time it left. You know what time 

he received it. In order to know the distance, which is to say the 

time of propagation, you have to know the time it left the transmitter. How do you know that? 

Mr. AMAROSA. Based on putting receivers on the cell sites, you 

take the differences in time that it hits all the different cell sites. 

Mr. NADLER. Difference of time, so triangulate it by—— 

Mr. AMAROSA. Exactly. Exactly. 

Mr. NADLER. You know the distance from here and the distance 

from here, and you can—— 

Mr. AMAROSA. Right. 

Mr. NADLER. Okay. Thank you. 

Now, also you state the TruePosition location technology used by 

GSM carriers can identify mobile phone devices typically within 50 

meters. Fifty meters is how many feet? 

Mr. AMAROSA. It is roughly about three feet a meter, so you are 

talking about 150 feet. 

Mr. NADLER. So it is 150 feet. Is TruePosition able to provide this 

high degree of accuracy after the fact or only when requested prospectively by E-911 operators and law enforcement? 

Mr. AMAROSA. The way the system works right now, you establish triggers in the system to locate. You don’t locate every call. So 

the network couldn’t handle the location of every call. Right now, 

the only way you do that is based upon the fact of either being 

96 

prior written consent or on any 911 situation where the call would 

come in. 

And prior—— 

Mr. NADLER. Wait a minute. I thought from your testimony and 

Professor Blaze’s that it automatically recorded every call, because 

that is how you get all this system information. In other words 

they automatically record not the call—— 

Mr. AMAROSA. They are not locating every call. The way the system works today is they are only locating those calls that have certain triggers. The triggers are the E-911 calls that are coming in. 

And that is the way we are providing location back to the carrier. 

Mr. NADLER. But I thought in order to—well, let me ask Professor Blaze. 

This seems to contradict what you were saying a moment ago 

about you need to know the location of all the calls to figure out 

how many cells you need, where, and so forth. Do you want to—— 

Mr. BLAZE. So the cellular carrier always records the cell sector 

location for every call and any kind of—— 

Mr. NADLER. Sector for every call, the specific location only 

where—— 

Mr. BLAZE. Specific location only when specifically requested. My 

understanding is that cell carriers do that, as Mr. Amarosa points 

out, on E-911 triggered calls and on phones under surveillance and 

also periodically on random phones to figure out what is going on. 

Mr. NADLER. Okay. So—— 

Mr. BLAZE. As the technology becomes cheaper and more widespread, they can do it more and more often. 

Mr. NADLER. So in other words—the question I was going to ask 

Mr. Amarosa next is can TruePosition technology be used by carriers to gather and potentially retain this high accuracy location information of all subscribers at all times? Or is this high accuracy 

information only collected and retained after an appropriate and 

valid legal request by authorities? 

You answered the latter, and you also said it would be cost prohibitive to do the former. But Professor Blaze is saying that that 

cost prohibition will erode, and it is predictable sometime in the future that you may be able to and may in fact become standard to 

get this very sensitive location for all calls. 

Mr. AMAROSA. I don’t know if it will become standard. I think the 

capabilities will eventually exist, but whether it becomes standard—— 

Mr. NADLER. The capabilities will exist. It will get cheaper, and 

it may or may not become standard. 

Mr. AMAROSA. Right. 

Mr. NADLER. And thank you. So I mean, we have to worry about 

that as a possibility. 

Now, can TruePosition’s U-TDOA systems work in virtually any 

environment? 

Mr. AMAROSA. Yes, they can. 

Mr. NADLER. Because the radio waves will penetrate anything? 

Mr. AMAROSA. The way the system will work, you have in-building capabilities that certain other technologies do not have. You 

have the ability, if you can make a call and if you look at your 

phone now, you will see that you have the ability to make a call 

97 

inside. We can locate that airway. It is not blocked by the diffraction of concrete walls—— 

Mr. NADLER. And that is because it is a stronger signal than it 

used to be, or what? 

Mr. AMAROSA. It is because it is using radio waves, and that is 

not going back to the satellite. It is going to the transceiver where 

the transmitter is picking up and making that call to the—— 

Mr. NADLER. It is going to the cellular tower, you mean. 

Mr. AMAROSA. Right. Exactly. 

Mr. NADLER. And the radio wave that goes to the cellular tower 

is more powerful or more penetrating than the one that went to the 

satellite? 

Mr. AMAROSA. Because of the fact that the GPS chip is where 

you are locating from, rather than from a radio wave. 

Mr. NADLER. I am sorry. 

Mr. AMAROSA. The GPS system is located based upon the chip in 

the phone, which is communicating with the satellite—— 

Mr. NADLER. Right. 

Mr. AMAROSA [continuing]. As opposed to the radio wave, which 

is communicating with the base station receiver. And the radio 

waves can penetrate through buildings and concrete walls and steel 

structures. 

Mr. NADLER. Yes, but the radio wave going to the chip, to the 

satellite, also has to penetrate that wall. 

Mr. AMAROSA. And it doesn’t. And it doesn’t reach the satellite, 

because of the way the satellite systems work. You have to have 

an open sky capability and the ability to see the satellites—— 

Mr. NADLER. Okay. Because it is at a different angle, because it 

is going up as opposed to—— 

Mr. AMAROSA. Right. Exactly. You take, for instance, if you tried 

to use the GPS capability in the Wall Street area in New York 

City. Even though you just can’t get through because of the narrowness of the streets. 

Mr. NADLER. Thank you. 

Mr. Zwillinger, we have heard much today about revolutionary 

location based technologies that give extremely precise information 

about where an individual or individuals may be at any given time. 

Can any meaningful legal distinctions be drawn that should inform our review of the ECPA statute and its application to location 

based information? To your knowledge does DOJ draw distinctions 

with regard to location information derived from different location 

based technologies? Is that a sensible way to make a distinction 

based on what technology is used? 

Mr. ZWILLINGER. Well, unfortunately, it has been the only one so 

far. Let me go through three possible ways to draw a distinction. 

You know, one way to draw a distinction is between historical and 

prospective data. And for reasons we talked about, that is not a rational distinction. It is the same invasiveness 5 minutes ago versus 

5 minutes from now. 

The second one is where the Fourth Amendment points, which 

is—— 

Mr. NADLER. Well, wait. Let me just challenge you on that. 

Where you are located right now might be important for an emergency use. You need a paramedic quickly, or, you know, you use 

98 

E-911, et cetera. Where you were may be important for evidentiary 

reasons, which is very different from an emergency response. So 

maybe you should make a rational distinction. 

Mr. ZWILLINGER. Well, I think emergency is the distinction there, 

though. I mean, no ECPA reform would really do much to the 

emergency disclosure provisions that would allow you to make disclosures for an emergency. And E-911 is based on a consent theory 

that when you dial 911, you are consenting for disclosure. So I 

don’t think making a distinction on that basis would cause a realtime prospective distinction. We need an emergency exception. We 

need the 911 capability. But I don’t think that should drive the 

framework of ECPA. 

So the second distinction is reasonably precise versus general location data. And this is a distinction, I think, DOJ does draw to 

some extent now, because my understanding is—and obviously, I 

am not there—that their guidance is if they are going to try to 

track GPS data, they suggest that districts use a Rule 41 warrant, 

although there are some notable cases where that isn’t being followed. 

But their theory, I believe, is that it is constitutionally based, 

that a GPS can give you information about being inside a structure, and cell site data isn’t as precise. I think that is a very dangerous distinction. We have been hearing that today that this technology is evolving to be more precise, that the GPS technology is 

(a) being used for different applications and that providers may 

track more precise data. So I am not sure that is the way for 

ECPA—— 

Mr. NADLER. Well, we had that with the Supreme Court in the 

1920’s and 1930’s, actually. And I think it was Justice Holmes who 

said the distinction of whether the bug is on the outside of the wall 

or the inside of the wall didn’t make a heck of a lot of difference 

and that in fact he speculated—I think in 1928, he said someday 

it may be possible from across the street or a mile away to tell 

what is being said inside a room, and we should protect that privacy. 

So do you think the distinction might be better whether you are 

inside a room or a place where we will at least impute to you a 

reasonable expectation of privacy than what you are saying, or 

where in your house you are is more private—is a greater expectation of privacy than whether you are in your house or in the car 

or at the University? 

Mr. ZWILLINGER. Well, to some extent the Fourth Amendment 

does turn on that, which is one of the reasons I think Congress 

really needs to act here, because those aren’t the distinctions that 

are meaningful to us in society. I mean, if I am continuously 

tracked everywhere I go all day, the fact that sometimes I am outside and sometimes I am inside doesn’t give me comfort that it was 

okay to track me during those moments I was outside. 

So, you know, to me when we are thinking about ECPA reform, 

we are thinking about where we want to raise the standard. It is 

not were you in the house at that moment? It is are we learning 

something about your continuous movement versus learning something about you at a given moment in time, like you bought a book 

at Barnes & Noble this morning. 

99 

Mr. NADLER. And which should have greater privacy consideration—your continuous movement or an information moment in 

time and why? 

Mr. ZWILLINGER. I think continuous movement, because it is 

more invasive, and it is more intrusive to be tracked at every moment of the day all day than, as Mr. Littlehale pointed out, they 

get a credit card receipt, they know you were at a gas station. This 

has been the way it has been for a long time. It is an existing 

record. Nothing is being turned on. The providers aren’t being enlisted to become government agents. 

Mr. NADLER. So in other words, you make a phone call or receive 

a phone call, and you at that point have less expectation of privacy 

than just the fact that it is in your pocket as you move around. 

Mr. ZWILLINGER. That is one way to look at it, yes. 

Mr. NADLER. Okay. And you said the third basis. 

Mr. ZWILLINGER. Well, I think I covered the status location 

versus continuous flow was the third basis I was thinking of. 

Mr. NADLER. I am sorry? 

Mr. ZWILLINGER. I said the static location versus continuous 

tracking is the third basis and one that I would ask the, you know, 

the Committee to think about. 

Mr. NADLER. Okay. I have one more question for Judge Smith. 

And you explained in your testimony that with regard to those 

magistrate and district courts that are granting access to prospective cell site data under 18 USC 2703(d), specific and articulable 

fact standard, they are only doing so for a limited cell site information. 

Can you explain the distinction between limited cell site information and full range or unlimited location data in greater detail? 

Judge SMITH. As I understand it, the difference between limited 

cell site information and what I call full cell site information is the 

difference between a single tower signaling, reflecting the beginning and end of a call, as opposed to all the signaling information 

that that may be derived from signals bouncing off of multiple towers in a given location. 

In that circumstance that allows for the triangulation, more detailed, precise location pinpointing of the individual. And to date, 

as you correctly point out, I am not aware of any published decision 

by any of the magistrate judges, although we do disagree on the 

approach to the statute. I am not aware of any published decision 

in which a magistrate judge has allowed unlimited cell site information, GPS triangulation, on anything less than probable cause. 

Now, that doesn’t mean—and I have been advised in some applications that just because there aren’t any published decisions 

doesn’t mean we are not getting it. So I am not exactly sure where 

all my colleagues stand on this, because not everyone has taken the 

time to publish a written decision. 

Mr. NADLER. Thank you. 

I now recognize the gentleman from Georgia. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

I want the witnesses to respond to this scenario. Bill is a law enforcement officer. Jane is his wife. Bill suspects that Jane is having 

an affair. Bill issues a subpoena or a—not issues, but he tenders 

a subpoena to a cell phone provider or a global positioning system 

100 

provider and requests information on the location right now of 

Jane. 

Can that law enforcement officer be successful at acquiring that 

data, you know, where she is in real time right now? And what is 

the difference between him requesting that information versus the 

historical data—where has she been over the last 2 weeks or so? 

Can that happen? First of all, can you get that information, a law 

enforcement officer, without showing any kind of probable cause or 

reasonable suspicion, but just simply a subpoena, ongoing investigation? 

If I could get a response to that, Mr. Amarosa? Mr. Littlehale? 

Mr. Zwillinger and Judge Smith? And I assume that we certainly 

have already heard from Professor Blaze about the fact that we 

compile that data, so if you would respond. 

Mr. AMAROSA. Well, let me go first. We don’t track individuals 

unless the trigger goes into effect, which is the 911 call. So we are 

not tracking—I forget her name—Mrs. Law Enforcement. 

Mr. JOHNSON. Jane. 

Mr. AMAROSA. Jane. We are not tracking her at this point in 

time. We don’t maintain databases on calls that come into the system. If there was a call that comes into the system that is a non911 call, we are not creating a location for it, so we wouldn’t have 

it. We don’t respond unless there is a lawful request, and it is—— 

Mr. JOHNSON. What is a lawful request? 

Mr. AMAROSA. Well, what we are responding to is court orders. 

Mr. JOHNSON. A court order. 

Mr. AMAROSA. And the subpoena of the data—— 

Mr. JOHNSON. A blank subpoena or a subpoena issued by the 

court—blank. 

Mr. AMAROSA. Well, I am not sure that this law enforcement officer has the authority to issue a subpoena. 

Mr. JOHNSON. Okay. All right. 

Mr. Littlehale? 

Mr. LITTLEHALE. From my standpoint there are two issues. Obviously, what this individual has done is certainly a violation of that 

agency’s policies, very likely a crime as well. I am not sure that the 

level of process required, if you assume a jealous officer who is willing to forswear his badge in order to track his wife, is going to 

make a difference, because he could just as easily swear out a false 

search warrant as he could—well, I say just as easily. 

It certainly would take him slightly more time to fake a search 

warrant and go to a judge and get it signed. But he could just as 

easily do that as he could if he had the power to issue an administrative subpoena. 

So the question is what safeguards does that particular department have in place? I can’t speak for every department, but I can 

say from my department that would be difficult to do. 

Mr. JOHNSON. Well, can it be done? Theoretically, it can be done, 

can’t it? 

Mr. LITTLEHALE. Theoretically, it could, yes. 

Mr. JOHNSON. Okay. And you could get access to the cell phone 

record real-time where the person is located right now based on a 

subpoena. 

101 

Mr. LITTLEHALE. If that officer had a pretty good degree of sophistication in their use of electronic surveillance techniques and 

was willing to fake whatever process they needed to do and they 

were able to sneak around in their agency and use the right fax 

machines and that sort of thing, conceivably, yes. I would say it 

would be very difficult to do in my agency. 

Mr. JOHNSON. All right. Okay. 

Mr. ZWILLINGER. When you first started the question, I thought 

it was going to be a civil subpoena and the answer was going to 

be easy, because you can’t get any prospective for the civil subpoena. But clearly, it is not. This is a law enforcement process. 

I don’t think subpoena would get this piece of data. A subpoena 

might get a call record, but if this is historical, it should be produced with a 2703(d) order, which is the specific and articulable 

facts standard order. And if this is future, then that is a question 

we have been debating today. 

The government would try to get it with a hybrid pen register 

and 2703(d) order, and the esteemed judge to my left would decline 

it, and then they would have to come back with a warrant. But 

that is the open question. They would probably find a magistrate 

who would allow it. It shouldn’t be a subpoena for prospective realtime cell location data, even under the current analysis of ECPA. 

It should be at a minimum a (d) order for historical data. 

Judge SMITH. I agree with Mr. Zwillinger. I would hope that Bill 

in your hypothetical would not be able to get the information simply through a subpoena. It is possible that he may. 

I think it would probably depend on whether or not the provider 

would feel like that is a sufficiently legitimate order. Most providers, at least as far as I know, have counsel that advise them on 

what they need to see. And typically, a simple subpoena as opposed 

to a court order directing the provision of this information under 

2703(d) or Rule 41 would be required, so—— 

Mr. JOHNSON. Yes, even under FISA we had some situations 

where law enforcement officers were able to obtain data, promising 

that a subpoena would be submitted later. 

Judge SMITH. This goes back—excuse me—this goes back a little 

bit to my point about no appellate oversight. Even if a judge issued 

this type of order without any sort of process or without any sort 

of probable cause or the lesser standard of specific and articulable 

facts, he may—he or she may be able to do it without any repercussions, because there is no appeal, basically. 

Mr. JOHNSON. Yes, according to the Department of Justice, its 

policy is that Federal agents should seek a warrant based on probable cause before retrieving real-time GPS tracking information. 

However, Freedom of Information Act requests by the ACLU have 

uncovered at least two jurisdictions, Florida and New Jersey, that 

seek this information under a lesser standard. 

Does DOJ policy bind the Federal agents or U.S. attorneys? And 

is it possible that this policy is being ignored in other jurisdictions, 

Judge Smith? 

Judge SMITH. Well, I don’t know exactly what DOJ’s policy is. I 

will say that recently the majority of GPS precise tracking information requests that I have seen, they have gone under the Rule 41 

102 

standard. However, that has not been uniform. I have seen exceptions to that. 

Mr. ZWILLINGER. Can I comment briefly on that? As someone 

who represents providers, I frequently get requests from and subpoenas and other legal process from U.S. attorneys’ offices around 

the country, and I am the one typically telling them that, you 

know, that what you have done is in violation of DOJ policy. And 

sometimes I hear back, ‘‘Oh, do you mean those folks in Washington?’’ To which I say, ‘‘Yes, and you should call them.’’ And they 

say, ‘‘Well, our boss is a U.S. attorney, and he has been confirmed 

by the Senate, and we will do things the way we do things.’’ 

So to rely on DOJ policy to prevent prosecutors from doing things 

that we would think that the law would prevent them from doing 

is somewhat dangerous, and it puts a lot of burden on ISPs and 

providers to make sure that government isn’t doing what it 

shouldn’t be doing. 

Mr. NADLER. Thank you. 

The gentleman’s time has expired. 

The gentlelady from California is recognized. 

Ms. CHU. Yes, I would like to ask Mr. Zwillinger or Judge Smith, 

Newsweek reported that location tracking has caused serious 

harm, and they cited a case where an agitated Alabama sheriff 

called the phone company’s employees, demanding that they release the real-time data on his daughter’s whereabouts. He claimed 

that she had been kidnapped and that the cell phone company 

pinged her cell phone every few minutes to identify her location, 

but in reality there was no kidnapping. The daughter had been out 

on the town all night, and the father wanted to know where she 

was. 

There was also a more sinister request that came from some 

Michigan police officers, who purportedly were concerned about a 

possible riot and then pressed another telecom company for information on all the cell phones that were congregating in an area 

where a labor union protest was expected. 

So what ability do you have to challenge the use of prospective 

cell phone information, as in the case of the Alabama sheriff’s 

daughter? What rights do you have to challenge a warrant for a 

regular tracking device, if you deem it illegal or improper? 

Judge SMITH. Well, if you are charged with a crime and they attempt to introduce evidence obtained in that manner, a motion to 

suppress can be filed. And if the evidence was obtained in violation 

of the Constitution, a violation of the Fourth Amendment, there is 

a suppression remedy. 

The difficulty is that not everyone charged with a crime is 

deemed subject to these orders. If you happen to call or are being 

called, have been called by the target phone, then you may be 

swept up in a criminal investigation, even though you are a pizza 

delivery guy or someone who has no contact, no contact with the 

criminal conspiracy. 

And so as I said, that is the problem. Law-abiding citizens’ privacy rights might be impacted. They will not know about it because 

of the gag orders imposed on the providers and because of the sealing orders that courts impose prohibiting this information from 

being released to the public. 

103 

Mr. ZWILLINGER. To add to that, the examples you have given are 

examples where the police officer or law enforcement officer 

claimed an emergency. And with regard to the disclosure of historical records, the discretion to disclose information based on emergency is with the provider. So providers that I represent might 

have forms that the agent will have to fill out to certify it is an 

emergency or to explain what the emergency is and why they 

should exercise this discretion. 

For forward-looking data like a pen register or wiretap, there 

was no discretion with the provider. If the right official comes and 

says this is an emergency, the provider must provide the data for 

48 hours until the order is given, and then must shut it off. 

So there is not very much you can do in the situation where the 

right official claims an emergency and asks for forward-looking 

process except to not provide location data in response to a pen. 

But again, you are talking about an abuse of the emergency provisions, and there is very little that can be done. 

Ms. CHU. So you are saying that with both the sheriff and with 

these Michigan police officers, they have to comply. 

Mr. ZWILLINGER. They have to comply with a pen register request for forward-looking data for 48 hours. I have to admit I am 

not sure exactly what the request was made in the Michigan situation. 

Ms. CHU. Well, it was for a labor union protest that was to be 

expected, so it was forward-looking. 

Mr. ZWILLINGER. Yes. Yes. If the emergency provisions were 

properly invoked, then they would have to comply. 

Ms. CHU. Okay. I would like to follow up on the DOJ policy. According to the Department of Justice, of course, it says that Federal 

agents have to seek a warrant based on probable cause before retrieving real-time GPS tracking information. However, Freedom of 

Information requests by the ACLU have uncovered at least two jurisdictions, Florida and New Jersey, that seek this information 

under lesser standards. 

This clearly seems to indicate a depth of confusion about how to 

handle real-time data for cell phones. And why is there such a difference between the official policy and what is going on in the 

ground? And does the DOJ policy bind Federal agents or U.S. attorneys to get warrants in any way? 

Judge SMITH. Congresswoman Chu, again, I am not an expert on 

DOJ policy. I would presume that that would provide substantial 

guidance to the U.S. attorneys’ offices. But again, a lot of the requests are initiated by various law enforcement agencies—the 

DEA, the FBI. We get requests from Postal Service postal inspectors occasionally for this type of information. 

So all I can tell you is it does not seem to me that the policy has 

been uniformly applied. Whether that is some kind of breach or 

not, I will not say. 

And by the way, I do want to say that although we have discussed here some—some examples of apparently abusive conduct 

on behalf of law enforcement, in my experience, the people that I 

deal with, the agents that come before me and the A-USA attorneys that appear before me are dedicated, ethical professionals. I 

104 

think they are just as troubled by the confusion in this area as the 

judiciary is. 

Mr. ZWILLINGER. I would just supplement that by saying that the 

fact that it is DOJ policy, there is not a statutory provision to point 

to to say that this is required. This is what we are discussing today 

about to what extent ECPA should cover this. So the guidance is 

coming from an anticipation of what the constitutional ramifications will be for not getting the warrant. And it seems that some 

people are making different decisions about that. 

Ms. CHU. Thank you. 

I yield back. 

Mr. NADLER. I thank the gentlelady. 

And that will conclude our questions this morning just in time 

for a vote. 

The gentleman from Georgia? 

Mr. JOHNSON. Thank you. 

I do want to explain the fact that I have abundant respect and 

admiration for the law enforcement community. And, however, for 

the purposes of creating a picture of what can happen with someone—with a law enforcement officer in bad faith seeking this information helps us to understand the dilemma of good law enforcement officers seeking the same information. 

So we don’t want the worst-case scenario to be prevalent and 

possible as we move forward into the future. And so I only raised 

that example of police misconduct to help enlighten us as to what 

the stakes are for failing to act with this very important issue. 

And I want to thank the Chairman for holding this hearing. And 

I look forward to working with you, Mr. Chairman, as we peer into 

the future of technology and what we can do to ensure that the 

basic Fourth Amendment right to privacy, which is implied in that 

amendment, that it be upheld. Thank you. 

Mr. NADLER. Thank you. 

And that is the bells ringing for votes on the House floor. 

Without objection, all Members will have 5 legislative days to 

submit to the Chair additional written questions for the witnesses, 

which we will forward and ask the witnesses to respond as quickly 

as they can so that their answers may be made part of the record. 

Without objection, all Members will have 5 legislative days to submit any additional materials for inclusion in the record. 

With that, I want to thank our panel of expert witnesses for their 

service. 

I want to thank the Members. 

And this hearing is adjourned. 

[Whereupon, at 11:48 a.m., the Subcommittee was adjourned.] 

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