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GEOLOCATION TECHNOLOGY AND PRIVACY 

HEARING 

BEFORE THE

COMMITTEE ON OVERSIGHT 

AND GOVERNMENT REFORM 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

MARCH 2, 2016 

Serial No. 114–107 

Printed for the use of the Committee on Oversight and Government Reform 

( 

Available via the World Wide Web: http://www.fdsys.gov 

http://www.house.gov/reform 


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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 

JASON CHAFFETZ, Utah, Chairman 

JOHN L. MICA, Florida 

MICHAEL R. TURNER, Ohio 

JOHN J. DUNCAN, JR., Tennessee 

JIM JORDAN, Ohio 

TIM WALBERG, Michigan 

JUSTIN AMASH, Michigan 

PAUL A. GOSAR, Arizona 

SCOTT DESJARLAIS, Tennessee 

TREY GOWDY, South Carolina 

BLAKE FARENTHOLD, Texas 

CYNTHIA M. LUMMIS, Wyoming 

THOMAS MASSIE, Kentucky 

MARK MEADOWS, North Carolina 

RON DESANTIS, Florida 

MICK MULVANEY, South Carolina 

KEN BUCK, Colorado 

MARK WALKER, North Carolina 

ROD BLUM, Iowa 

JODY B. HICE, Georgia 

STEVE RUSSELL, Oklahoma 

EARL L. ‘‘BUDDY’’ CARTER, Georgia 

GLENN GROTHMAN, Wisconsin 

WILL HURD, Texas 

GARY J. PALMER, Alabama 

ELIJAH E. CUMMINGS, Maryland, Ranking 

Minority Member 

CAROLYN B. MALONEY, New York 

ELEANOR HOLMES NORTON, District of 

Columbia 

WM. LACY CLAY, Missouri 

STEPHEN F. LYNCH, Massachusetts 

JIM COOPER, Tennessee 

GERALD E. CONNOLLY, Virginia 

MATT CARTWRIGHT, Pennsylvania 

TAMMY DUCKWORTH, Illinois 

ROBIN L. KELLY, Illinois 

BRENDA L. LAWRENCE, Michigan 

TED LIEU, California 

BONNIE WATSON COLEMAN, New Jersey 

STACEY E. PLASKETT, Virgin Islands 

MARK DESAULNIER, California 

BRENDAN F. BOYLE, Pennsylvania 

PETER WELCH, Vermont 

MICHELLE LUJAN GRISHAM, New Mexico 

JENNIFER HEMINGWAY, Staff Director 

DAVID RAPALLO, Minority Staff Director 

TROY STOCK, Subcommittee on Transportation and Public Assets Staff Director 

SEAN BREBBIA, Counsel 

WILLIE MARX, Clerk 


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C O N T E N T S 

Page 

Hearing held on March 2, 2016 .............................................................................. 1 

WITNESSES 

Mr. Richard Downing, Deputy Chief, Computer Crime and Intellectual Property Section, U.S. Department of Justice 

Oral Statement ................................................................................................. 4 

Written Statement ............................................................................................ 7 

Mr. Michael R. Doucette, Commonwealth’s Attorney, City of Lynchburg, Virginia 

Oral Statement ................................................................................................. 13 

Written Statement ............................................................................................ 15 

Mr. Paul J. Larkin, Jr., Senior Legal Research Fellow, Edwin Meese III 

Center for Legal and Judicial Studies, The Heritage Foundation 

Oral Statement ................................................................................................. 25 

Written Statement ............................................................................................ 26 

Ms. Neema Singh Guliani, Legislative Counsel, American Civil Liberties 

Union 

Oral Statement ................................................................................................. 50 

Written Statement ............................................................................................ 52 


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GEOLOCATION TECHNOLOGY AND PRIVACY 

Wednesday, March 2, 2016 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, 

WASHINGTON, D.C. 

The committee met, pursuant to call, at 10:03 a.m., in Room 

2154, Rayburn House Office Building, Hon. Jason Chaffetz [chairman of the committee] presiding. 

Present: Representatives Chaffetz, Mica, Jordan, Walberg, 

Amash, DesJarlais, Massie, Meadows, DeSantis, Buck, Walker, 

Blum, Hice, Carter, Grothman, Hurd, Cummings, Lynch, Connolly, 

Cartwright, Duckworth, Kelly, Lieu, Plaskett, and Welch. 

Chairman CHAFFETZ. The Committee on Oversight and Government Reform will come to order. 

Without objection, the chair is authorized to declare a recess at 

any time. 

Thank you all for being here. In today’s modern age, this is a 

new phenomenon, new waters, new areas that we are chartering 

here. And these technological advances, particularly with 

smartphones, have made it easier to solve crimes and to take criminals off the streets, but it also makes it easier and less expensive 

for law enforcement to track people’s movements over long periods 

of time. And keep in mind, as we address these issues with law enforcement, there are also issues that bleed over in how organized 

crime, how individuals can use these types of technologies in a very 

nefarious way as well. 

But these advances make it possible to conduct either historical 

or real-time prolonged surveillance previously unachievable with 

traditional surveillance techniques. And prolonged surveillance of 

geolocation reveals intimate personal details far exceeding mere location. 

As the D.C. Circuit noted, ‘‘A person who knows all of another’s 

travels can deduce whether he is a weekly churchgoer, a heavy 

drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups, and not just one such fact about a person but all such facts.’’ 

Geolocation is more than just a record of where we are or were; 

it is a window into who we are. Do you want your Uber trip records 

to have Fourth Amendment protection? What about your Fitbit 

data? What about your smartphone information? 

The Department of Justice takes an interesting position on this. 

The Director of National Intelligence recently acknowledged that, 

‘‘In the future, intelligence services might use the Internet of 


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Things for identification, surveillance, monitoring, location tracking, and targeting for recruitment or to gain access to networks or 

use credentials.’’ 

In plain English, he is saying that the government intends to appropriate the technology you buy and can strip the companies you 

entrust with your data to be the arms of the State to spy on you. 

It doesn’t seem like too much to ask the executive branch that before prying into your life it at least convince a neutral judge they 

have probable cause for doing so. 

Protection against unreasonable government searches is a cornerstone of our democracy. It is an expectation in our life. I do believe that each American has an expectation and a right to privacy. 

The Fourth Amendment provides ‘‘the right of people to be secure 

in their persons, houses, papers, and effects against unreasonable 

searches and seizures shall not be violated.’’ 

Think about what you keep on your smartphone, everything from 

banking information and personal health data, sensitive communications, family photos, and who knows what in the future. It 

sounds a lot like persons, houses, papers, and effects to me. 

In April of 2014, the committee began an investigation into law 

enforcement’s use of cell-site simulators after press reports allege 

widespread use of devices also known as stingrays to locate people, 

that using the word stingray in a generic term. There are lots of 

other brand names that are out there. 

The committee discovered multiple executive branch agencies 

possessing these devices with the Department of Justice alone possessing hundreds of these devices. Even the IRS has a stingray, the 

IRS. What in the world are they doing with that machine? I do not 

trust Commissioner Koskinen and the IRS with this technology, especially after the agency targeted individuals for their political beliefs. 

The committee’s investigation confirmed, as many suspected, 

that law enforcement was using these devices without first obtaining a warrant. And the Supreme Court agrees. In Jones v. United 

States, the Supreme Court unanimously, unanimously rejected the 

government’s warrantless use of a GPS device. In that case, Justice 

Alito remarked that Congress should solve these issues legislatively, and I happen to agree with that. 

One of our witnesses here today worked with law enforcement 

and privacy advocates in the State of Virginia to update Virginia’s 

laws post-Jones to ensure they adhere to the Fourth Amendment 

and gave law enforcement the legal tools necessary to catch and 

prosecute bad guys and women in this digital age. And my home 

State of Utah has done the same, as has California. 

It is time for Congress to follow the lead. I happen to have introduced H.R. 491, the Geolocation Privacy and Surveillance Act, in 

a bipartisan way, in a bicameral way with good leadership there 

in the Senate in a bipartisan way as well. It provides law enforcement clear legal guidelines, when and how to use geolocation information, how it can be collected, addressed, and used. I intend to 

pursue all opportunities I can to make our fellow Members and the 

public aware of this type of technology and what it can mean in 

your life. 


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We are going to hear a lot today about government rules and 

protocols, but as Chief Justice John Roberts wrote in a case holding 

that police need a warrant to search a smartphone after arrest, the 

Founders did not fight a revolution to gain access to government 

rules and protocols. Just because it is easier in 2016 for law enforcement to track our location and learn intimate details about 

our lives, it doesn’t mean those details are somehow less worthy of 

constitutional protection. I stand with the Founders; get a warrant. 

We have a lot to talk about here. In this day and age, not only 

are we looking, as the Oversight Committee, into the past, but I 

think we also need to look into the future. And a lot of these tools 

can be used in a good way to make people’s lives better, but we 

also have to make sure on what sort of privacy we are giving up 

in the name of security. We had a good hearing yesterday in Judiciary talking about it with the Director of the FBI, talking about a 

similar type of technologies and what we are going to do or not do 

with encryption. But dealing with geolocation is something that we 

want to explore here today and we have a good healthy panel for 

that. 

Chairman CHAFFETZ. So I would now like to recognize our ranking member, Mr. Cummings of Maryland. 

Mr. CUMMINGS. Thank you very much, Mr. Chairman. And I welcome all of our witnesses today. 

Today’s hearing provides an opportunity to discuss both the privacy concerns and law enforcement interests in obtaining 

geolocation information about our constituents. Geolocation information provides tracking capabilities with great accuracy making 

it a valuable law enforcement tool. This information can reveal intimate details of a person’s life, which raises significant concern 

about whether the American people have a right to expect their 

private information be treated as such. 

It is important that our law enforcement authorities have the 

ability to carry out their public safety duties, and it is also important that we protect the privacy rights of American citizens. Currently, Federal law enforcement officials use authority under the 

Stored Communications Act to obtain location records from wireless 

service providers. This law requires law enforcement authorities to 

provide ‘‘specific and articulable facts’’ demonstrating ‘‘reasonable 

grounds’’ to believe that the information they seek is ‘‘relevant and 

material to an ongoing criminal investigation.’’ 

Right now, there is a split among Federal courts. Some have held 

that the Americans have a reasonable expectation of privacy over 

this type of information. They require law enforcement to obtain a 

search warrant based on probable cause. Others have held that 

Americans do not have a reasonable expectation of privacy because 

they voluntarily use their cell phones in this manner. These courts 

require law enforcement to obtain a court order under the lower 

standard of reasonable suspicion. 

This is a legitimate and challenging issue with reasonable voices 

on both sides. For example, on the one hand, the chairman has a 

bill that would create a uniform standard that recognize privacy interests and would require law enforcement to obtain warrants 

based upon probable cause. There are strong benefits to this apVerDate Nov 24 2008 09:40 Feb 16, 2017 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 H:\23406.TXT APRIL

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proach, and it is supported by Senator Wyden, Ranking Member 

Conyers, and our own Congressman Welch. 

There are also voices on the other side. For example, Congressman Gowdy has expressed concern that this approach could impair 

the efforts of law enforcement authorities to investigate and solve 

crimes. 

Today, I welcome this debate because I want to make sure that 

we are striking the right balance. I look forward to hearing from 

all of our witnesses to help us continue to inform this debate and 

to ensure that we help our law enforcement authorities while protecting the privacy rights of our constituents. 

And with that, I yield back. 

Chairman CHAFFETZ. I thank the gentleman. I will hold the 

record open for 5 legislative days for any members who would like 

to submit a written statement. 

And I will now recognize our panel of witnesses. We are pleased 

to welcome Mr. Richard Downing, Acting Assistant Attorney General in the Criminal Division at the United States Department of 

Justice. Mr. Michael Doucette is the Commonwealth’s attorney in 

Lynchburg, Virginia. I appreciate your being here today. Mr. Paul 

Larkin, Jr., Senior Legal Research Fellow for the Edwin Meese III 

Center for Legal and Judicial Studies at the Heritage Foundation; 

and Ms. Neema Singh Guliani. Did I pronounce it right? 

[Nonverbal response.] 

Chairman CHAFFETZ. Guliani, Legislative Counsel for the American Civil Liberties Union. We do appreciate you all being here and 

your participation today. 

So if you would please rise and raise your right hand. Pursuant 

to committee rules, all witnesses are to be sworn before they testify. 

[Witnesses sworn.] 

Chairman CHAFFETZ. Thank you. Let the record reflect that all 

witnesses answered in the affirmative. 

In order to allow time for members to ask questions, we would 

appreciate your limiting any oral testimony to 5 minutes. Your entire written statement will be made part of the record. 

Mr. Downing, you are now recognized for 5 minutes. 

WITNESS STATEMENTS 

STATEMENT OF RICHARD DOWNING 

Mr. DOWNING. Thank you very much. Good morning, Chairman 

Chaffetz, Ranking Member Cummings, and members of the committee. Thank you for the opportunity to appear before you today. 

I’d like to begin with the facts of a case based on public filings. 

The United States District Court judge in Jacksonville, Florida, 

was sitting in his living room one night, a shot from a high-powered rifle shattered his window. He was injured, but thankfully, 

the bullet did not hit him. The police had no eyewitnesses and a 

very large pool of suspects, including many litigants and defendants who had appeared before the judge. 

So what did the investigators do? Among other things, they applied for court orders to obtain the cell tower records of the phones 

of some of the possible suspects. Those records provided a general 


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idea of the location of the phones. This information advanced the 

investigation and allowed agents to exclude certain innocent people 

and pursue leads that eventually led to the arrest of the alleged 

shooter. This case is just one example of the importance of location 

information to a wide variety of criminal investigations. 

I should emphasize, however, that there is no single kind of 

geolocation information. Location information can differ in precision, everything from what country the phone is in to precise GPS 

measurements of latitude and longitude. Sometimes companies 

generate location information for their own business purposes, and 

other times, law enforcement may gather the information directly. 

Sometimes, it is generated continuously as the phone moves 

around. Other times, only when certain events happen like when 

a user places a call. 

The Department recognizes the importance of considering individual privacy interests when obtaining different kinds of location 

information. At the same time, location information plays an important and sometimes pivotal role in our efforts to protect public 

safety and to seek justice. And it is important to recognize that different kinds of location information implicate different privacy concerns. 

In the time that I have, it would be impossible to discuss in detail all of the various types of location information. And I would 

like to mention just two types: first, cell-site information; and second, information collected by cell-site simulators. 

I recognize that these two types of information have confusingly 

similar names. Cell-site information is generated by cellular phone 

companies. A cell-site simulator is equipment operated directly by 

law enforcement officers. Cell-site information consists of business 

records that wireless carriers routinely collect and maintain as part 

of providing cellular service. These records identify the towers and 

sometimes the face of those towers handling communications with 

a particular device. While not providing pinpoint accuracy, the fact 

that a tower handled communications with a phone can give an 

idea of the location of the phone at the time that the communication occurred. 

Providers collect and maintain cell-site records for their own 

business purposes such as to repair and improve their networks. 

This data is collected only periodically when calls and other communications occur, not continually, and courts have found that historical cell-site information may be obtained based on a court order 

under the Electronic Communications Privacy Act, as Congressman 

Cummings mentioned in his opening. 

This provision requires the court to find that the government has 

provided specific and articulable facts showing that a substantial 

but not quite at the level of probable cause. Historical cell-site information can play a critical role at the outset of an investigation 

when there is not sufficient evidence yet to satisfy a probable cause 

standard such as in the shooting that I mentioned earlier. 

I’d like to turn now to cell-site simulators, the equipment owned 

and operated by police officers. A cell-site simulator collects a limited set of signaling information, not the content of communications, from cellular devices in the vicinity of the simulator. It can 

be used to figure out the location of a suspect’s phone. 


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The Department recognizes that the collection of precise location 

information in real time implicates different privacy interests than 

less precise information generated by a provider for its business 

purposes. That is why last September the Department issued a 

new policy governing the use of cell-site simulators in domestic 

criminal investigations. Under the policy, law enforcement agents 

now are generally required to obtain a search warrant supported 

by probable cause before using such a device. 

In conclusion, I’d like to emphasize that the Department is dedicated to ensuring that its policies and practices comply with the 

law and promote the privacy and civil liberties of individuals while 

we fulfill our mission to protect the public and to seek justice. 

Thank you, and I look forward to answering your questions. 

[Prepared statement of Mr. Downing follows:] 


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Chairman CHAFFETZ. Thank you, Mr. Downing. I appreciate it. 

Mr. Doucette, you are now recognized for 5 minutes. 

STATEMENT OF MICHAEL R. DOUCETTE 

Mr. DOUCETTE. Chairman Chaffetz, Ranking Member Cummings, 

members of the committee, my name is Mike Doucette. I’m the 

elected Commonwealth’s attorney for the city of Lynchburg, Virginia. I’m also currently a board member of the National District 

Attorneys Association, the largest association representing the 

voice of prosecutors around the country. And I appreciate the opportunity to address you today, Virginia’s perspective on the use of 

geolocation information and changes made after the decision in 

United States v. Jones. 

In response to that decision, Governor Bob McDonnell back in 

2012 convened a small group consisting of prosecutors, defense attorneys, and law enforcement to draft a bill to allow for a search 

warrant specifically for the use of a GPS device. One of the problems with which we had to deal with the use of a GPS device was 

how to satisfy the particularity requirement for a search warrant 

when the product of that proposed search is neither in a particular 

location, nor is a particular item. 

And another problem we had to deal with was providing service 

of the warrant on the target of that warrant—GPS warrant without tipping him off that he is under surveillance. It would do no 

good to serve a warrant—a copy of a search warrant with its attached affidavit to the person who is to be surveilled and then tell 

that person to go about his usual suspected criminal activity. 

Our key concern in drafting this bill was how to issue a search 

warrant in one particular jurisdiction but allow it to be valid in any 

other jurisdiction to which the object, usually an automobile, would 

travel in the future. For standard search warrants, a search warrant is issued in the jurisdiction in which there is probable cause 

to believe that the evidence or contraband sought will be located 

at that static point in time when the warrant is executed. 

And so to address this issue, we defined ‘‘use of a tracking device’’ to include the installation, the maintenance, and the monitoring of that particular device. The search warrant is valid for 30 

days from issuance. Additional 30-day extensions may only be 

issued by a circuit court. The installation of the tracking device 

must be completed within 15 days of the issuance of the warrant, 

and the device must be removed or disabled within 10 days after 

the use of the device has ended. 

Upon issuance of the warrant, the warrant and the affidavit are 

automatically sealed by the circuit court. There is a process for 

unsealing at the end of the use of that particular GPS search warrant. Both the warrant and the affidavit must be served on the 

owner or possessor within 10 days after the end of that use of that 

tracking device. And again, 30-day extensions may be granted by 

the circuit court. 

In 2014, we anticipated through legislation what we believed 

United States v. Jones might ultimately lead, and so we amended 

our State counterpart to 18 U.S.C. 2703 to require a search warrant for the disclosure for up to 30 days of the real-time location 

data of any electronic device. Exceptions were added to the statute 


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in situations where there is administrative subpoena in child pornography cases and when there is an emergency circumstance or 

consent. 

This specific bill was geared towards the real-time location data 

of mobile phones whether through pinging the phone by an electronic communication service or through the use of the phone’s internal GPS. While the location of the phone does not necessarily 

identify the present location of the phone’s owner, practical experience tells us that most of the time it does. 

However, in this bill, we specifically did not include historic cell 

tower information. We subscribe to the United States Supreme 

Court’s opinions which stated that ‘‘an individual enjoys no legitimate expectation of privacy’’ in the information he ‘‘voluntarily 

turns over to a third party.’’ But we were also influenced by both 

the absence of the simultaneous monitoring of a person’s present 

location and the lack of specificity in that location provided by the 

cell tower information. While GPS can pinpoint location within a 

few feet, historic cell tower information is far less accurate with the 

distances measured within thousands of feet more or less. The lack 

of specificity in this technology is based on several factors relating 

to signal strength, including distance to tower, intervening objects 

between the towers and the phone, the number of towers in the 

area, and the number of calls that a particular tower is handling. 

In 2015, we amended that statute even further to include a requirement for a search warrant before law enforcement could use 

what is commonly referred to as a stingray because we had inadvertently left that out of the 2014 legislation. 

In 2015, we—there were some bills introduced in the Virginia 

General Assembly to limit the time period for passive use of automated license plate readers. The bills were ultimately vetoed by 

the Governor and have not been reintroduced, although the patrons 

have promised to reintroduce those bills in next year’s session. 

And that in a nutshell, Mr. Chairman, highlights the Virginia 

legislative efforts in geolocation data and technology and its relationship with the Fourth Amendment for the past 4 years in Virginia. And I look forward to the opportunity to answer any questions. 

[Prepared statement of Mr. Doucette follows:] 


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Chairman CHAFFETZ. Thank you. I appreciate it. 

Mr. Larkin, you are now recognized for 5 minutes. 

STATEMENT OF PAUL J. LARKIN, JR. 

Mr. LARKIN. Mr. Chairman, Mr. Ranking Member, and members 

of the committee, I want to thank you for the opportunity to try 

to help you puzzle through this difficult issue. I’m going to make 

only three points. 

First, current settled Supreme Court case law allows the government to obtain historical cell-site or cell-location information without a warrant and without any showing of justification or need. It 

may be that the Supreme Court will change that law, but they’ve 

not yet done so, so that’s the baseline from which we operate with 

respect to the Fourth Amendment. You of course could go further 

by statute, but the Fourth Amendment doesn’t require you to go 

further at this point. 

Second, the technology that the chairman mentioned—stingrays—are a new development that allow law enforcement to obtain 

this information without going through a carrier. The problem, 

however, is the way the device works. As I understand it, the device works by capturing all the cell phone signals within a radius 

of the operating device. The effect, therefore, is to shut off those 

other cell phones of everyone else who is within that radius. One 

of the problems in this regard is we don’t know exactly how these 

devices work, and I think before deciding whether or not to regulate, that is an important factor that I think the committee has to 

take up the responsibility for learning. 

Third, any legislation will require this committee or any other to 

draw arbitrary lines, but some arbitrary lines are better or worse 

than others. In my written statement, I’ve recommended several 

arbitrary lines that the committee, I think, should consider avoiding and several others that I think the committee should consider 

endorsing. 

At the end of the day, however, in deciding whether to regulate 

any law enforcement practice, you have to ask yourself several 

questions. What are the benefits and harms of this practice? What 

is the likelihood of those benefits and harms coming to fruition? 

Who are the people that you’re going to regulate? That is, do the 

police officers you’re thinking about more closely resemble Joe Friday or Judge Dredd? Finally, what is the risk the public has to accept that you may be wrong in answering all of these questions? 

Thank you for the opportunity to make a statement and prepare 

a written one. I’m glad to answer any questions you may have. 

[Prepared statement of Mr. Larkin follows:] 


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Chairman CHAFFETZ. Thank you. 

Ms. Guliani, you are now recognized for 5 minutes. 

STATEMENT OF NEEMA SINGH GULIANI 

Ms. GULIANI. Chairman Chaffetz, Ranking Member Cummings, 

and members of the committee, thank you for the opportunity to 

testify today on behalf of the American Civil Liberties Union. 

In today’s world, law enforcement can easily and inexpensively 

track virtually any American who owns a cell phone. GPS chips 

embedded into our phones provide real-time precise information 

about our every movement. Meanwhile, phone companies keep historical records that log information about our phone’s location 

every time we make or receive a call, make or receive a text, or 

even receive a weather alert. 

These advances have provided law enforcement with a powerful 

new surveillance tool that they routinely use. For example, in 2015, 

AT&T received over 76,000 requests for cell phone location information. Over 58,000 of these requests were for historical information which the company keeps for a period of 5 years. 

Unfortunately, our Federal law has not kept pace with these 

technological realities. As a result, law enforcement officials and 

the public have been left to interpret a patchwork of State laws, 

conflicting legal precedent, and nonbinding policies to determine 

what policies apply. 

This mosaic of standards has resulted in law enforcement officials routinely accessing location information without a warrant. 

For example, in one case in Baltimore, police collected over 7 

months of historical location information without a warrant. This 

information allowed police to infer that an individual was likely at 

his pregnant wife’s OB/GYN at some point during this period. In 

another case in Michigan, police collected over 6 months of location 

information without a warrant. 

The Department of Justice has taken the position that a probable 

cause for warrant is not required for these types of collection. The 

ACLU disagrees with the government’s position in this case. The 

Supreme Court’s decision in Jones makes clear that the Fourth 

Amendment requires a probable cause warrant to collect historical 

or real-time location information. 

In her concurrence in the Jones opinion, Justice Sotomayor emphasized the intimate nature of information that might be collected 

by GPS surveillance, including trips to a psychiatrist, trips to an 

AIDS treatment center, church, or even trips to a strip club. 

In that same case, Justice Alito noted that society’s expectation 

has been that law enforcement agents and others would not and 

could not ‘‘secretly monitor and catalog every single movement of 

an individual’s car for a very long period of time.’’ Due in part to 

these concerns, a majority of Justices in the Jones case found that 

long-term GPS tracking impinged on expectations of privacy. 

More recently, the Supreme Court has expressed concern that 

cell phone location data can ‘‘reconstruct someone’s specific movements down to the minute not only about town but also within a 

particular building.’’ That’s—what we’re seeing is often a gap between law enforcement practices on one hand and on the other 


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hand the sensitivity with which Americans and the Supreme Court 

view our location information. 

The ACLU urges Congress and the Department of Justice to take 

three steps to address this gap. Number one, the ACLU urges Congress to pass legislation such as the Geolocation Surveillance and 

Privacy Act introduced by Chairman Chaffetz that would require 

police to get a warrant before accessing location information. This 

bill takes a sensible approach. It would require police to follow the 

same procedures they follow when collecting a variety of sensitive 

information. At the same time, it preserves the ability of law enforcement to act without a warrant in truly exigent circumstances. 

This bill also reflects the approach that States like Utah, New 

Hampshire, and Montana have already taken. 

Number two, until such legislation is passed, the ACLU urges 

the committee to continue to protest the Department of Justice to 

fully disclose its interpretation of the Supreme Court’s Jones decision and any associated guidance. The public and Members of Congress should not be left in the dark about these important issues. 

By withholding this information, the DOJ has cut off the robust 

public debate and oversight that this issue demands. 

Number three, we urge the committee to press the Department 

of Justice to adopt and publicly release a policy that requires a 

probable cause warrant to obtain real-time or historical information. Last year, the Department of Justice released guidance on 

stingrays demonstrating that it can operate under a warrant standard and release information about its policies without compromising investigations. These actions are obviously not a substitute 

for legislation, but they are necessary to protect the rights of Americans. 

Thank you again for the opportunity to testify today, and I look 

forward to answering any questions that you may have on these 

important issues. 

[Prepared statement of Ms. Guliani follows:] 


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Chairman CHAFFETZ. Thank you all for your testimony. 

I would like to enter into a colloquy with Mr. Cummings here 

prior to our questioning. 

We had good word from the Department of Justice just within 

the last 24 hours that they would allow myself and Mr. Cummings, 

plus we would each allow one staff person to review the post-Jones 

guidance. Now, while I appreciate that gesture, I need to say that 

it is frustrating that it has literally taken years to get to this point. 

I serve on the Crimes Subcommittee within the Judiciary Committee, and I am the chairman of the Oversight Committee, and 

thus far, the Department of Justice has refused to allow those of 

us who serve in Congress to even understand how they are using 

these types of materials. 

This is a positive step forward. I appreciate it. But as Ms. 

Guliani just pointed out, the public doesn’t know what is happening, and we don’t know what is happening. I look forward to 

seeing that information and working with Mr. Cummings on this. 

Let me yield to Mr. Cummings. 

Mr. CUMMINGS. Mr. Chairman, first of all, I agree with you. 

These issues are very, very important to our committee and the 

Congress and the American people, and so I am happy that we 

could work together with the Department of Justice over its production of Jones memoranda. 

The Department has agreed to provide us with full access to all 

of the information we requested with no redactions, and we have 

agreed to consult closely with the Department going forward. We 

were able to reach an appropriate balance between legitimate congressional oversight and protecting law enforcement sensitivities. I 

commend the Department for responding to our concerns, and I 

commend the chairman for working through this issue in a very 

thoughtful way. We did this in a bipartisan manner, and I hope 

that we can continue this approach on other information requests 

important to this committee. Congressional oversight is a critical 

function, and we have to have the cooperation of entities subject to 

our oversight, whether that is in the public of the private sector. 

And with that, I will yield back. 

Chairman CHAFFETZ. I thank the gentleman. 

I would also want everybody to know that it is not just the Department of Justice that owns, maintains, and operates the cell 

phone simulators, stingrays, whatever you want to call them. There 

are different brand names, different versions of the technology. For 

instance, the Internal Revenue Service has these machines. They 

have deployed these machines. How in the world is the Internal 

Revenue Service using this information? We don’t know. So today, 

we are going to be focused much on the Department of Justice, but 

there are also other parts of government. 

I will also credit the ACLU for the good work that they did in 

surveying law enforcement across the country at various levels. 

Whether it be State, county, or municipal, there are lots of machines that are out there and available in other law enforcement 

situations that are not focused at the Federal level at the Department of Justice. And so the use of that type of information is more 

pervasive than just at the Federal level. 


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And finally, I would remind members that you can go on the Web 

and buy these machines, so don’t think that this is just limited to 

the good guys in law enforcement. I do think we are living in a 

world and an age where the price point will dramatically decrease 

where organized crime, somebody with nefarious intent, some 

punk, whatever, is going to go out there and want to be able to use 

this type of information to gather information about somebody’s 

geolocation and then be able to track that person back and then go 

find them with such specificity that if you were in New York City, 

as was mentioned, you could tell not only that they are on a certain 

block, you could tell which floor they are on and which apartment 

they are in or which office they are in. That is some pretty scary 

stuff, and that is something that I think we have to also consider. 

So with that as the backdrop, and I appreciate the colloquy, let’s 

go to the questions. I am going to recognize myself first, and we 

will start here with Mr. Downing. And I do appreciate you being 

here. I really do. These are tough, difficult questions. 

I still struggle with how the Department of Justice considers 

geolocation. Is it metadata or is it content? Because the district 

court ruled that it is content. How does the Department of Justice 

view this information? 

Mr. DOWNING. Thanks very much for the question. That’s, I 

think, the interesting and tricky thing about this label that we’ve 

placed on it as geolocation data because it can come in very many 

different forms. At times, I would say that it is metadata. That is, 

it is not the content of a communication but simply information 

about the location of where a phone is. 

But if you think broadly about the way that location information 

can be stored, if I send an email to my mom and say I’m at the 

office, well, that’s actually location information and it’s in that form 

the content. That might also be true, for example, if I were to post 

a photograph on Facebook that contained information that might 

be part of that photograph and therefore content. 

Chairman CHAFFETZ. But does the Department of Justice believe 

that if it knew I was at the hospital at the oncology department, 

isn’t that the content of my life? And then I move from there to 

somewhere else, why is that not content? You think that is simply 

metadata? 

Mr. DOWNING. So, the general construct is the content of the 

communication versus information about a communication. That’s 

the general way that we look at these kinds of questions. If I were 

to place a call using my landline phone, the number that I dialed 

would widely be considered metadata, but the fact that I’m calling 

Home Depot is—gives an idea about what I might be talking about, 

but it’s still metadata even though it can be used to infer certain 

things. 

Chairman CHAFFETZ. And this is where I think I beg to differ. 

I think geolocation certainly used for more than just a split second 

snapshot in time, even if it was, you can tell a lot about what they 

are doing. If I called from the local jail, that is going to provide a 

lot more information than just the fact that I called Bob. 

Is there anything that Ms. Guliani or Mr. Larkin or Mr. Doucette 

said, Mr. Downing, that you disagree with or you found in their 

testimonies? 


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Mr. DOWNING. One thing that I think is important to understand 

is that we often hear discussion about whether something was obtained without a warrant. And of course that is true. That is the 

Department’s position. But it brushes over the idea that when we 

use a court order under section 2703 of ECPA that there are substantial privacy protections built into that, that it’s not that law 

enforcement is waltzing in and just obtaining it at a whim but in 

fact a series of process which require specific facts presented to the 

judge before we can obtain that information. That’s one response 

I would have that I would offer. 

Chairman CHAFFETZ. Is the IRS doing that? 

Mr. DOWNING. I don’t oversee the IRS, but I do believe that they 

would be, yes, because —— 

Chairman CHAFFETZ. Why do you believe that? 

Mr. DOWNING. Because the carriers know what sort of process to 

expect —— 

Chairman CHAFFETZ. So it is up to AT&T to police the IRS? I 

mean, you have jumped to a conclusion and an assumption that the 

IRS is living up to the standard of the Department of Justice. I 

want to know why you think that is. 

Mr. DOWNING. Well, I think all law enforcement agents and prosecutors —— 

Chairman CHAFFETZ. But is the IRS —— 

Mr. DOWNING.—we follow the law, and the law is that, at a minimum, you need to obtain a—this kind of court order to obtain 

records or other information pertaining to a customer or subscriber. 

That’s the law. 

Chairman CHAFFETZ. Ms. Guliani, is that the way you see that? 

Ms. GULIANI. No, we disagree with the Department of Justice. 

The standard that is under 2703(d) is not a probable cause standard, and we believe that doesn’t reflect the intimate nature of location information. It doesn’t reflect how Americans view this information. Under polling, 80 percent of Americans view their location 

information over time as sensitive. That’s a greater percentage 

than view their relationship history or their religion as sensitive. 

And the Department of Justice’s position also doesn’t comport 

with what courts have said about the sensitivity of this information. Courts have recognized that location information over time 

can tell you whether someone is a regular churchgoer, is an unfaithful husband, is a heavy drinker. And given the intimate nature of this information, we believe that a probable cause standard 

is the correct standard, as many courts have found. 

Chairman CHAFFETZ. So the FBI Director testified that they do 

use probable cause, but what about all the rest of the Department 

of Justice? Do they or do they not under the description Ms. 

Guliani cited there? 

Mr. DOWNING. I think I would go back to the general overarching 

point here, which is there are many kinds of location information. 

We certainly do use warrants for cell-site information when it is 

collected by the cell-site simulator. We also use warrants when we 

are collecting precise GPS location from the providers. 

The difference is, and the courts have supported us in this, when 

we are obtaining less precise information that is a business record 

of a carrier, cell-site information, then that does not require a warVerDate Nov 24 2008 09:40 Feb 16, 2017 Jkt 000000 PO 00000 Frm 00070 Fmt 6633 Sfmt 6633 H:\23406.TXT APRIL

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rant, although there are many standards that have to be met that 

are built in for the protection of the privacy of the individual. 

Chairman CHAFFETZ. My time is expired, but I do wish you 

would provide that standard to the public and to the Congress. We 

are different than most every other country on the planet, I get it, 

but we do value our privacy, too. 

Ms. Guliani, I will let you speak and then we will go to the ranking member. 

Ms. GULIANI. Yes, I just wanted to address the point of this idea 

that some—historical cell-site information is not as precise as GPS 

information, and that doesn’t reflect the way technology is moving. 

We’re increasingly seeing this information be very precise because 

it’s not just the tower you connect to, it’s the direction, it’s the distance. Even in cases people have microcells, so a tower that only 

serves their home. And given this, the precision of cell site information, historical cell-site information is quite accurate and I think 

doesn’t—I think our—the standards that we’ve used have—does 

not reflect that accuracy. 

Chairman CHAFFETZ. Thank you. I will recognize the ranking 

member, Mr. Cummings. 

Mr. CUMMINGS. Ms. Guliani, geolocation information is a critical 

law enforcement tool, I think you will agree, but it has significant 

implications for an individual’s privacy rights. We have to balance 

the need of our law enforcement authorities to access this information with the importance of protecting the privacy rights of American citizens. 

Cell phones and other wireless communication devices provide location information to service providers each and every time a 

phone call is placed. Is that correct? 

Ms. GULIANI. That’s correct. 

Mr. CUMMINGS. You mentioned the Baltimore case a little bit 

earlier. 

Ms. GULIANI. Right. 

Mr. CUMMINGS. And you said that apparently they had surveillance for 7 months. Is that what you said? 

Ms. GULIANI. They had obtained historical cell-site information 

for a period of over 7 months, that’s correct. 

Mr. CUMMINGS. And what happened in that case? 

Ms. GULIANI. In that case, police did not obtain a probable cause 

warrant. They operated under a lower standard, and that case is 

being challenged. 

Mr. CUMMINGS. Now, should individuals have a reasonable expectation of privacy with respect to their location information? 

Ms. GULIANI. We believe that individuals do have a reasonable 

expectation of privacy and that that has been reflected in statements from the Supreme Court that have recognized that the 

Fourth Amendment has always acknowledged that there are facets 

of American life that should be free from improper government intrusion. And your location, whether you’re in your home, whether 

you’re in a church, that those are aspects that should be protected. 

Mr. CUMMINGS. Mr. Doucette, geolocation information can be 

used to provide critical assistance in complicated criminal investigations to apprehend dangerous and violent fugitives or help loVerDate Nov 24 2008 09:40 Feb 16, 2017 Jkt 000000 PO 00000 Frm 00071 Fmt 6633 Sfmt 6633 H:\23406.TXT APRIL

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cate kidnapped children. Can you describe how geolocation information can be useful in these types of complex criminal cases? 

Mr. DOUCETTE. Mr. Chairman, Mr. Cummings, the—we’ve had a 

number of cases, especially dealing with historical cell tower information, where we’ve been able to obtain this particular information 

through a court order, a 2703 court order, and were—and specifically in one case in Lynchburg we were able to solve a rather serious homicide where we had no suspects at all, and basically 

through the course of doing this particular investigation developed 

the estranged son-in-law. 

But we had no information whatsoever to beat his alibi that he 

was in Richmond 2 hours away until we were able to get his historical cell tower information through a court order and show that, no, 

at the time that the murder occurred he was actually in city of 

Lynchburg. But that was not enough to get any sort of a conviction. 

We had to go forward and do a lot of police work afterwards, but 

again, that led us down the right path and led us through to be 

able to ultimately bring this person to justice. 

Mr. CUMMINGS. You know, when you watch 20/20, you find the 

use of this cell phone information to be extremely helpful in a lot 

of very, very serious cases showing where the location of a person 

was at a certain time and to kill an alibi easily. Mr. Downing, how 

precise is historical cell-site information? 

Mr. DOWNING. Historical cell-site information varies considerably 

depending on the size of the coverage area of the particular antenna. In rural areas, it tends to be extremely large, a matter of 

miles perhaps. In urban areas, it tends to be smaller, and in certain cases, may be quite small, down to the level of a much smaller 

area. 

Mr. CUMMINGS. So when you say rural, I mean, can you give me 

a max, just general, what, 5 miles, 10 miles, 20 miles? 

Mr. DOWNING. I don’t know the specifics, but it’s on the order of, 

yes, 5 to 10 miles, something like that. 

Mr. CUMMINGS. What impact would a search warrant requirement for historical cell-aside information have on a criminal investigation? 

Mr. DOWNING. We are troubled by the idea of requiring a probable cause warrant because there are situations like the one I mentioned involving the person shooting at the judge where we are at 

an early stage of we do not yet have probable cause, but the ability 

to gather that sort of information can be very important to follow 

up on leads such as Mr. Doucette mentioned and to exclude people, 

frankly, that are not involved or that weren’t involved in the crime. 

So that’s an important and useful tool, and it should be considered 

as we debate this question. 

Mr. CUMMINGS. Mr. Doucette, do you agree? 

Mr. DOUCETTE. Absolutely, sir. 

Mr. CUMMINGS. And what impact do you think a search warrant 

requirement would have on a criminal investigation? 

Mr. DOUCETTE. Again, as pointed out by Mr. Downing, a lot of 

times we’re strictly in the investigative stage. It would shut down 

the investigation completely because we would not have that level 

of probable cause. We’re using this particular information to establish probable cause, not that we already have it. 


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Ms. Guliani, a search warrant is not required for physical surveillance of a suspect. Why should a search warrant be required for 

geolocation information? 

Ms. GULIANI. The nature of the information we’re talking about 

is quite different from a police officer, for example, following someone. You know, with phone information, the law enforcement can 

inexpensively and easily track virtually anybody, and it’s not constrained by resources as you would normally have in a situation 

where police are following somebody. 

But I also want to follow up on this question of, you know, 

whether a probable cause warrant will interfere with the ability of 

law enforcement in certain cases. The idea of a warrant for this information is not a novel idea. There have been many States to have 

passed laws that require a warrant for real-time or historical information, and there’s no evidence that, for example, in Utah or in 

Montana where such a standard exists that law enforcement has 

been stopped from doing their job. 

Mr. CUMMINGS. And last but not least, I want to go back to something that the chairman was talking about. And I guess he was 

talking about the stingrays. You know, one of the things that I 

have always been concerned about, the domestic violence cases 

where you have usually a woman who is trying to get away from 

a dangerous situation. She relocates trying to hide really from danger. And I guess, as she was talking, I was thinking that is a lot 

of power for someone who wants to get to her. Is that right, Mr. 

Doucette? Would you agree? 

Mr. DOUCETTE. Absolutely, sir. And we did include—because 

the—when we are dealing with real-time location data such as 

whether it comes from a cell phone or provider or through a stingray, we do in Virginia require a search warrant because we do have 

probable cause. And again, you know, if a perpetrator wants to use 

this, the Fourth Amendment does not deal with him. We’re going 

to have to pass laws, but outside of the realm of the Fourth 

Amendment. 

Mr. CUMMINGS. Thank you very much, Mr. Chairman. 

Chairman CHAFFETZ. Thank you. I now recognize the gentleman 

from Ohio, Mr. Jordan —— 

Mr. JORDAN. Thank you —— 

Chairman CHAFFETZ.—for 5 minutes. 

Mr. JORDAN. Thank you, Mr. Chairman. 

Ms. Guliani, you are familiar with the stingray technology that 

the chairman referenced a little bit ago? 

Ms. GULIANI. Yes. 

Mr. JORDAN. Yes. And the fact that it mimics a cell site, tricks 

phones into going to that so that the person using the stingray can 

get access to the numbers and therefore where this person in fact 

is located? 

Ms. GULIANI. That’s correct, all phones in range. 

Mr. JORDAN. And the fact that every major law enforcement 

agency in the Federal Government is using that, I assume that 

troubles you a little bit like it does me? 

Ms. GULIANI. We are very troubled specifically by the notion that 

these devices have been shrouded in secrecy. The public didn’t 

know about them, judges in many cases, defense attorneys. 


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Mr. JORDAN. And did you also know that it wasn’t just limited 

to law enforcement, that it included the Department of Energy and 

more importantly, as the chairman pointed out, the Internal Revenue Service? 

Ms. GULIANI. Yes —— 

Mr. JORDAN. Did you know that? 

Ms. GULIANI. There have been recent reports that the IRS and 

other agencies are also using these devices. 

Mr. JORDAN. Mr. Downing, did you know the IRS was using the 

stingray technology? 

Mr. DOWNING. I believe that—I do understand that. It’s the 

criminal part of the IRS, the criminal investigators. 

Mr. JORDAN. But did you know they were using it or did you 

learn it in the press like the rest of us did? 

Mr. DOWNING. I personally didn’t have specific knowledge of it, 

no. 

Mr. JORDAN. I know you have got this Jones memo that you have 

given to all law enforcement in the Federal Government but won’t 

show Congress and therefore the American people. Has the Jones 

memo gone to the Internal Revenue Service to tell them how you 

think they should use this stingray technology that you didn’t 

know they were using? 

Mr. DOWNING. No, it did not to my knowledge. 

Mr. JORDAN. So you haven’t sent it to them, but this is the guideline on how we are supposed to deal with this important privacy 

issue that you thought was so important that you gave it to everyone in the Justice Department? You won’t let Congress see it, but 

you know an agency has used the technology and you didn’t give 

them the memo, the guidelines on how they should appropriately 

use it? 

Mr. DOWNING. We have given them the cell-site policy of —— 

Mr. JORDAN. No, no, I am asking about the Jones memo, this secret document that you won’t let us see. Has it been given to the 

Internal Revenue Service? After all, they have used this technology 

on American people. 

Mr. DOWNING. The Jones memo is a memo that advises —— 

Mr. JORDAN. Has it gone to the Internal Revenue Service? 

Mr. DOWNING. I don’t know the answer to that. I don’t believe 

so. 

Mr. JORDAN. Well, that is scary because let me just remind you 

all of something here. The Internal Revenue Service, for a sustained period of time, systematically targeted Americans who were 

exercising their First Amendment liberties, and they sent questionnaires and information to these—told these groups to answer questions like this: ‘‘Please provide board members or officers who have 

run or will run for public office who are in your group.’’ ‘‘Please 

provide handouts you provided to the audience participants and to 

the public.’’ ‘‘Please provide detailed contents of any speeches given 

at your meetings,’’ copies of current Web pages. They ask them, 

‘‘Will you attempt to influence the outcome of specific legislation?’’ 

That is a fancy way of asking will you exercise your First Amendment rights. Are you kidding me? 

And now this same agency has stingray technology, has used 

stingray technology, and you haven’t even given them the memo to 


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tell them how they should appropriately use it? This is unbelievable. ‘‘Give copies of all communications, pamphlets, advertising, 

copies of any radio, television, Internet advertising you have done,’’ 

another 33 questions sent to another Tea Party group. ‘‘Have you 

conducted or will you conduct voter education activities?’’ This is 

amazing. ‘‘Provide details regarding your relationship with’’—they 

list a person’s name, Justin Thomas. 

Now, think about this. All these questions that I think go right 

to the First Amendment liberties, and now this agency has a technology that they can go into an area where let’s say there is a political rally going on. They go into an area, say we are going to trick 

every cell phone to come into this device so we can get people’s 

phone numbers, know who they are, who they have been talking 

to, who they associate with in this context, and you didn’t even 

know about it and you haven’t even advised them on how to use 

it? 

Mr. Larkin, is that a little concerning to you? 

Mr. LARKIN. The predicate facts are very disconcerting, very 

troubling. One of the lines that I think the committee should consider not drawing is trying to limit the use of these sort of devices 

by agency because, over time, it will bleed over into every other 

agency. And that doesn’t even begin to count the number of State 

and local agencies that can use these devices. So there’s a very 

troubling aspect of this problem. 

Mr. JORDAN. Yes, it seems to me at a minimum you need a probable cause warrant before you can do this. I mean, again, I think 

you have to view everything in context. You have to view it within 

the framework of what we have seen from this administration 

going after people’s First Amendment liberties, people’s Fourth 

Amendment liberties, and now they have this technology that the 

Internal Revenue Service is using with no guidance from our own 

Justice Department? I mean, that boggles the mind, boggles the 

mind. 

Ms. Guliani, I will give you the last word. 

Ms. GULIANI. Sure. I mean, I would echo the same concerns. 

We’re concerned that the guidance that exists doesn’t apply to 

States and localities or other Federal agencies, but I will note even 

that guidance has loopholes and deficiencies. There’s a warrant requirement by default except for exceptional circumstances. Exceptional circumstances aren’t defined, and we’ve had no additional information as to what that even means. So given this and some of 

the other deficiencies, how are judges informed of this, how are defense attorneys informed of information from these devices being 

used? There’s just no clarity right now. 

Mr. JORDAN. This Jones memo, the guidelines, this secret memo 

that we can’t see but the night before the hearing they tell the 

chairman and the ranking member, oh, we will let you view it in 

private with your secret 3–D glasses or whatever it is and they 

won’t let the IRS know how they should do this, unbelievable. Well, 

I mean, it is truly unbelievable what we’re seeing in America today 

from this Justice Department. 

I yield back, Mr. Chairman. 

Chairman CHAFFETZ. I thank the gentleman. 


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I would now recognize the gentleman from California, Mr. Lieu, 

for 5 minutes. 

Mr. LIEU. Thank you, Mr. Chairman. 

Mr. Downing, you had testified in your earlier testimony that 

these stingray devices track geolocation but they don’t track content. It is true, however, that these stingrays can in fact be configured to track the content of conversations, correct? 

Mr. DOWNING. The devices that we use are not configured, nor 

do they have the necessary software to do that. And if they did, it 

would be in violation of our policy. But as a general matter, this 

type of technology could be used in that manner that you suggest. 

Mr. LIEU. Could this technology also be configured to track text 

messages and emails, the contents of those communications as 

well? 

Mr. DOWNING. If you have the right software and you configured 

it and you violated the policy, then yes, you could do that as —— 

Mr. LIEU. Is there anything stopping the Department of Justice 

from changing the policy next month or next year? 

Mr. DOWNING. No, we have the ability to change the policy. 

Mr. LIEU. The IRS has these stingrays. Does your policy apply 

to them? 

Mr. DOWNING. It doesn’t apply to them directly, but if they were 

to be used in compliance with the pen register statute, then they 

would need to have a prosecutor—a department employee involved 

in that. 

Mr. LIEU. Does your policy apply to local law enforcement agencies? 

Mr. DOWNING. It does not apply to —— 

Mr. LIEU. Okay. 

Mr. DOWNING.—local law enforcement agencies. 

Mr. LIEU. So these stingrays could in fact be used by the IRS or 

local law enforcement agencies to not just track geolocation information but also the content of communications, including text messages and emails, correct? 

Mr. DOWNING. If they did it without a wiretap order, then it 

would likely be a Federal criminal offense, but I suppose, yes, anything is possible. 

Mr. LIEU. Let’s talk about historical data versus real-time tracking. My understanding is the Department of Justice believes that 

you don’t need a warrant to access historical geolocation data, but 

you do need one for real-time tracking. Am I understanding your 

position correctly? 

Mr. DOWNING. We have taken the position publicly that we do 

not need—you do not need a warrant for historic cell location information. If we were to use real-time tracking, if what you mean is 

specific precision GPS location on a prospective basis going forward, we, yes, agree a warrant is required in that circumstance. 

Mr. LIEU. So let’s say someone has cancer and doesn’t want people to know about it, they go to a clinic that just treats cancer, why 

would it matter from a privacy perspective whether that person 

went to that cancer clinic last week or they are there right now or 

they are about to go to it tomorrow? Isn’t the privacy interest exactly the same? 


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Mr. DOWNING. The data that would be the basis for historical 

and perspective that we were just talking about is not identical in 

its precision, nor is it identical in the way that it’s collected, so I’m 

not sure we’re comparing apples and oranges. But of course whether somebody is being tracked in real time going forward has historically been recognized as something that is more intrusive than 

looking at a historical view of somebody’s activities. 

Mr. LIEU. I completely don’t understand that distinction. I think 

it is stupid and meaningless. So, Ms. Guliani, can you elaborate on 

that distinction? 

Ms. GULIANI. We also don’t believe that there should be that distinction between historical and real-time data. You know, as one 

judge put it, the idea that something is less intimate because 

you’re looking at a picture that’s already been painted just simply 

isn’t accurate. 

It’s also important to note that courts recognize that there are 

areas where you’re entitled to enhanced protection, for example, in 

your own home, and historical data captures whether you’re in 

your home, how often you’re in your home, when you leave your 

home. And given the accuracy of historical data, and we anticipate 

that it’s only going to become more accurate, we believe that it 

should be treated with the sensitivity it deserves and a probable 

cause warrant should apply. 

Mr. LIEU. Thank you. Mr. Larkin, what do you think about that 

distinction? 

Mr. LARKIN. It depends whether you’re talking about it as a matter of law or policy. As a matter of Fourth Amendment law, there’s 

probably no distinction between past data about a person and 

present data. The Fourth Amendment would not require a search 

warrant or probable cause in either case. But if you’re talking 

about the effect of privacy, then, yes, it can be the same in both 

cases. 

See, the Fourth Amendment treats not past and present as the 

distinction. It treats—it makes the distinction in other ways, between protected areas and non-protected areas. If you are on a city 

street, the Fourth Amendment would allow the police to see what 

you’re doing and follow you, whether they’ve done it 100 times in 

the past or are doing it now. If you’re in your home, that’s a protected area and that’s different. 

Mr. LIEU. Thank you. Mr. Downing, can I see this super-secret 

memo or only the chairman and the ranking member? 

Mr. DOWNING. Let me say that the Department has great respect 

for the needs of this committee and wants to work towards developing—giving the information that’s required. Of course, at times 

there are going to be situations where the content of documents 

has the effect of inhibiting the kinds of things that we do such as 

by giving criminals warning about the types of activities that we 

might use to investigate them and also to reveal the litigating positions of the Department, which is an important internal deliberation. 

All that being said, as the chairman and ranking member announced, we seek to seek an accommodation with the committee to 

get the committee the information that it needs, and so I underVerDate Nov 24 2008 09:40 Feb 16, 2017 Jkt 000000 PO 00000 Frm 00077 Fmt 6633 Sfmt 6633 H:\23406.TXT APRIL

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stand that our Office of Legislative Affairs has worked out a compromise that we’re going to try to pursue at this point. 

Mr. LIEU. Mr. Chairman, could I have 15 seconds to respond? 

Chairman CHAFFETZ. Sure. 

Mr. LIEU. I fully trust Chairman Chaffetz and Ranking Member 

Cummings. I just want to note that the message you’re sending to 

me and other members of this committee is you don’t trust us. I 

find that offensive, disrespectful, and it will affect my dealings with 

the Department, maybe other members here in their dealings with 

your department on an ongoing basis. 

And I yield back. 

Chairman CHAFFETZ. I thank the gentleman. I now recognize the 

gentleman, Mr. DesJarlais from Tennessee, for 5 minutes. 

Mr. DESJARLAIS. Thank you, Mr. Chairman, and thank you, 

panel. 

As you all know, the Fourth Amendment provides the right of 

the people to be secure in their persons, houses, papers, and effects 

against unreasonable searches and seizures, in other words, protection against unreasonable government search is a fundamental 

right. 

Mr. Downing, as the courts have made clear in their rulings, all 

evidence that is obtained through an unconstitutional search is inadmissible in court. Would this exclude all the tracking information, even the information obtained where the suspect had no reasonable expectation of privacy like driving on public roads? 

Mr. DOWNING. So the constitutional suppression would only 

apply to that information that is indeed protected by the Constitution. So if a court found that the information was not implicating 

the Fourth Amendment, then constitutional suppression would not 

apply in that situation. 

Mr. DESJARLAIS. Okay. So then what are some examples of situations where a warrant would not be necessary when placing a GPS 

on a vehicle? 

Mr. DOWNING. There might be situations that come up where 

there is a life-and-limb emergency, for example, where the courts 

have long recognized that the warrant requirement doesn’t apply. 

So, for example, in that situation law enforcement officers could 

search a house without a warrant because of the immediate need. 

Those kinds of exceptions would apply also in the case of tracking 

devices on vehicles. 

Mr. DESJARLAIS. Mr. Lieu touched on this a bit. What should be 

the legal standard for historical geolocation information? 

Mr. DOWNING. I’m sorry, was that question to me or Mr. 

Doucette? 

Mr. DESJARLAIS. Yes. Yes, sir. 

Mr. DOWNING. I apologize. Historical location information? 

Mr. DESJARLAIS. Yes, what should be the legal standard for historical geolocation information? In other words, why would you 

have less privacy interest in where you were last Saturday than 

where you will be next Saturday? 

Mr. DOWNING. So the Department’s position is that historical 

cell-site information does not require a warrant, and three circuit 

courts have agreed that that’s the case. The reason that it is different is that it is less precise in general, that it is a business 


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record collected by the company, that it is not continuous but only 

recorded when communications occur. And so for all of those reasons, it’s a different category of information than, say, real-time 

GPS information that’s collected prospectively. For that reason, the 

courts have recognized that that does not have constitutional protection. 

Mr. DESJARLAIS. How far can law enforcement go back, a year, 

3 years, 5 years? 

Mr. DOWNING. The amount of time that you could go back would 

depend entirely on the record collection and retention practices of 

the company because these are company records that are not mandated to be stored. It’s a choice that the companies make. And so 

it’s variable. Some go back for a short period of time, others for 

longer. 

Mr. DESJARLAIS. Ms. Guliani, would you like to comment or 

share your opinion on those issues? 

Ms. GULIANI. Sure. You know, as I mentioned before, we believe 

this distinction between real-time and historical information is artificial and not just because of the increasing accuracy of cell-site information but also because of the very real privacy interests that 

Americans have in protecting the fact that they’ve been to an AA 

meeting six times in the last week or the fact that they only sleep 

at home 5 out of 7 days a week. 

With regards to historical cell-site information and the time period that providers keep that information, in some cases that can 

be close to 5 years, for example, in AT&T’s case; with Sprint, 18 

to 24 months, and that’s incredibly intimate information about 

someone’s life. And given this, we believe that a probable cause 

warrant, the same standard that would apply if law enforcement 

wanted to read a letter of yours, is the correct standard. 

Mr. DESJARLAIS. Mr. Downing, do you agree with that? 

Mr. DOWNING. With all due respect, I do not agree. The reason 

that the—this information is different—first of all, let me say we 

respect that it is private information, and we believe that it should 

be protected. We believe it is protected. The Electronic Communications Privacy Act already creates rules. It’s not at a probable cause 

standard, but nevertheless, it is quite protected and not instantly 

available to law enforcement whenever it chooses. 

We have analyzed, though, the constitutional rules here and 

have taken the position that the Constitution does not require a 

probable cause standard for the reasons that I explained before. 

Mr. DESJARLAIS. Ms. Guliani, do you agree with that? 

Ms. GULIANI. Respectfully, we disagree, and there are many 

courts that have recognized that historical information is extremely 

sensitive. For example, a Fourth Circuit opinion that is waiting en 

banc review where the court found that historical cell-site information was sensitive and should be provided a higher standard. 

I think it is important to note that States across the country 

have recognized this, have recognized the sensitivity with which 

Americans view this information and have on their own adopted, 

you know, in many cases by nearly unanimous votes in their State 

Legislatures, legislation that protects historical and real-time cellsite information. 


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And given this trend, both at a State level and both in terms of 

the American view of this information, we feel that this is a case 

where it’s ripe for Congress to make clear that this information 

should be afforded a higher level of protection through legislation 

and by pressing the Department to change its policies and its position. 

Mr. DESJARLAIS. Thank you both for your time. I yield back. 

Chairman CHAFFETZ. I thank the gentleman. 

I will now recognize the gentleman from Pennsylvania, Mr. Cartwright, for 5 minutes. 

Mr. CARTWRIGHT. Thank you, Chairman Chaffetz. 

The first thing I want to do is I want to clarify something. It was 

heard in this room not 10 minutes ago that it was a great revelation about stingrays being used by the IRS. Please do not be misled 

by that. It was not a revelation this month. This committee was 

briefed on stingrays back in November, November 12, 2015, by 

Richard Weber, the chief of the Office of Criminal Investigation, 

and also has received at least two briefings, one in January of this 

year and one in November from the Department of the Treasury 

from TIGTA on the use of stingrays. So anybody claiming this is 

a revelation wasn’t showing up for the meetings. 

I want to talk about geolocation, the legal standard. Ms. Guliani, 

law enforcement currently has the ability to obtain geolocation data 

through the use of a valid court order. Law enforcement relies on 

legal authority provided in the Stored Communications Act to obtain an order compelling a service provider to disclose cell-site location information. These orders call for specific and articulable facts 

showing that there are reasonable grounds to believe that the cellsite information is relevant and material to an ongoing criminal investigation. 

There has been disagreement in the Federal courts over whether 

this is the proper standard, and some Federal courts have decided 

that there is an expectation of privacy in cell-site location information, and they have imposed stricter requirements for law enforcement to obtain the information. 

I wanted to ask you, what is the impact of a lack of a uniform 

standard governing access to geolocation information? 

Ms. GULIANI. There are very practical impacts. I mean, I think 

the first and foremost is the reality that many Americans’ information may not be adequately protected. So if you happen to live in 

a State that has not passed a law protecting information, law enforcement may be able to access your information under a lower 

showing. 

And I think that, you know, the Supreme Court has recognized, 

courts have recognized that the Fourth Amendment is important 

not just to protect people’s privacy but also for freedom of expression, freedom of association. You know, the idea that law enforcement may be able to track your every movement could chill, you 

know, the desire of someone to go to a protest, to visit their psychiatrist. And these are very real effects and the reason why we 

believe that it’s so important that a high standard apply when law 

enforcement collect this information. 

Mr. CARTWRIGHT. Thank you for that. And I want to shift over 

to you, Mr. Downing. Do you agree with that? 


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Mr. DOWNING. We do not agree. We think and have taken the position in litigation that it is appropriate to have that lower standard and that the—although it is lower than probable cause, it is 

not a no-standard. There is in fact a lot of protection that is built 

into that. The reason that it’s particularly important, however, is 

that, as mentioned in—before, the early stages of investigation can 

certainly benefit from the ability to get this sort of information at 

a time when we don’t have probable cause, and so there is a real 

cost to the public and to the solving of crimes and seeking justice 

if the standard were to be raised. 

Mr. CARTWRIGHT. Not to interrupt you, but I’m not asking about 

the level of the standard. I’m talking about the uniformity of the 

standard. What do you believe the impact of the lack of a uniform 

standard has been? 

Mr. DOWNING. I don’t see an enormous impact as a result of the 

lack of uniformity. In the law, we often see circuit splits and differences from one part of the country to another. We have to deal 

with that as law enforcement officers and as prosecutors, and so we 

need to follow the law in our local area. Usually, those differences 

of opinion get worked out and we come up with a consistent standard in due course. 

Mr. CARTWRIGHT. Well, Mr. Downing, are you aware of any instances in those States that the warrant requirement impeded 

their efforts? 

Mr. DOWNING. I’m not aware of which States have them and 

which don’t, nor do I have any information for you on that. 

Mr. CARTWRIGHT. Mr. Doucette, the State of Virginia currently 

requires a warrant for real-time tracking. Am I correct in that? 

Mr. DOUCETTE. That is correct. 

Mr. CARTWRIGHT. And what has been the experience in Virginia? 

Mr. DOUCETTE. It’s been our experience for real-time tracking 

that we do generally have—we have the probable cause. We had 

the probable cause before, and that’s why—if we are looking where 

somebody is right now, we have reason to believe, we have probable cause to believe that they are involved in a particular criminal 

activity. It’s —— 

Mr. CARTWRIGHT. How would law enforcement practices change 

if a higher legal standard were uniformly to be adopted? 

Mr. DOUCETTE. And I think we’ve mentioned this, both Mr. 

Downing and I, is that it would have a severe impact as far as the 

criminal justice and the criminal prosecution provisions where 

we’re using this particular information to aid us in this particular 

investigation. 

And I realize this is not directly an answer to the question, but 

Ms. Giuliani—Guliani has raised an issue about a particular case 

in the Fourth Circuit, United States v. Graham, which is coming 

up for an en banc hearing. As I understand the majority opinion 

in that particular case, it wasn’t that they were using historical cell 

tower information without a probable cause determination. It was 

the amount of time that went on. It was 221 days that they were 

using this court-ordered information. And so it wasn’t 1 day or 2 

days. That would have been fine under the ECPA standard. It was 

the 221 days, and that’s what’s —— 


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Mr. CARTWRIGHT. Thank you for that. And I just want to give 

Ms. Guliani just a few moments to respond to that. 

Ms. GULIANI. Mr. Doucette is right. In that case there was a long 

amount of time, but I think it’s important to note that the Department of Justice’s position is that even for a lengthy period of time, 

even for 5 months or 6 months, a warrant would not be required 

for historical information, and that is not consistent with what 

some courts have—the way some courts have assessed this issue. 

But like I said, this issue is still pending in many courts. There’s 

not uniformity among States and among courts. I mean, it’s for 

that very reason that it’s so important that we develop a uniform 

policy and legislation that addresses this important issue and ensures that what law enforcement is doing comports with the Fourth 

Amendment. And our view is that the Fourth Amendment protects 

Americans against law enforcement getting their information unless there is appropriate cause, and in this case, that cause is probable cause, which is a standard, but it’s not a standard that is different from what law enforcement applies in a variety of circumstances when investigating many serious crimes. 

Mr. CARTWRIGHT. Understood. And I yield back, Mr. Chairman. 

Chairman CHAFFETZ. I thank the gentleman. 

I now recognize the gentleman from Kentucky, Mr. Massie, for 

5 minutes. 

Mr. MASSIE. Thank you, Mr. Chairman. 

Ms. Guliani, in your opinion, should Congress act now or wait for 

the Supreme Court to decide this issue? 

Ms. GULIANI. I think that Congress should act now. We don’t 

know when or if the Supreme Court will take this case. It could 

be 5 years or 10 years. And candidly, in many cases are—legal 

cases have lagged behind technology. 

And we’re at a point where location information is becoming increasingly more accurate and is being collected by a wide variety 

of parties. Smart cars, smart medical devices, we’re fairly close to 

having information about our location collected by these third parties. And given this, it’s—we believe that Congress can protect the 

rights of Americans ensuring that location information is afforded 

the high level of protection and do so in a way that is reflective of 

our current technological realities. 

Mr. CARTWRIGHT. Same question, Mr. Larkin. Should we wait for 

the Supreme Court to decide this issue or should we pass legislation? 

Mr. LARKIN. You should not wait. You should look into the facts 

and then address the issue. In the Jones case, for example, the 

beeper was placed on the vehicle in 2005. The Supreme Court 

didn’t decide the case until 2012. You can decide things a lot faster 

than it took the Supreme Court to resolve that issue. 

Secondly, whatever you decide I think would be well received by 

the Supreme Court. Justice Alito, for example, in his concurring 

opinion almost pleaded with Congress to address this issue and let 

it pass from the Supreme Court. The same thing has happened in 

all the other cases where Congress has addressed electronic acquisition of information. The Supreme Court has been very deferential 

realizing that Congress can balance considerations and has access 

to data it does not have. 


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Mr. MASSIE. This is a larger question but I know that Heritage 

speaks to this question. Doesn’t Congress lose power to the other 

branches when it abdicates its responsibility to legislate on these 

issues? 

Mr. LARKIN. It depends on what the particular issue areas, but 

the general answer is yes. Power not used tends to wither, and 

then when you try to use it later, you have a long line of precedence that people tend to point to to say that you no longer have 

this power; you’ve passed it on to somebody else. 

Mr. MASSIE. Right. That is what the late Justice Scalia told me, 

in fact. 

Mr. Downing, when we vote on this issue and legislate and 

amend this legislation, how many of us in the House of Representatives are going to be voting on this? 

Mr. DOWNING. I’m sorry, I don’t understand your question. 

Mr. MASSIE. How many Members of the House of Representatives are eligible to vote on this issue? 

Mr. DOWNING. I believe it’s 435. Is that —— 

Mr. MASSIE. That is correct, 435. So why would you share the 

post-Jones memorandum with only two? I mean, ostensibly, whatever we legislate is going to have a profound effect on how you are 

allowed to interpret these issues. So why wouldn’t you want Congress to be informed? 

Mr. DOWNING. Congressman, we very much do want to have Congress be informed and want to respect the need of this committee 

to have the information that it legitimately needs to make its decisions. However, there are certain circumstances where particular 

memos contain information that if it were released publicly or—it 

would be detrimental to the ability of us to do our jobs. And so we 

seek to try to find some accommodations to allow for —— 

Mr. MASSIE. Let me just echo —— 

Mr. DOWNING.—that —— 

Mr. MASSIE.—what Mr. Lieu said. This breeds mistrust when 

you don’t trust Congress, and we are trusted with many other secrets of national importance, and I think the people’s representatives, if not the people, at least the people’s representatives deserve 

to know how the laws are being interpreted and how they are going 

to affect them. 

And I would remind you that there are also 435 of us vote on 

your budget as well. 

Mr. DOWNING. Thank you. We have actually done a lot to try to 

provide and answer any questions that the committee may have as 

a result of that. We’ve provided our public positions, which really 

go through all sorts of the positions that are relevant to these decisions. I’ve also briefed staff and answered all of their questions. 

We’re really trying very hard to give the information to the committee that it —— 

Mr. MASSIE. I would like you to try a little bit harder and give 

me that post-Jones memorandum. 

Should it be legal to turn off precise geolocation on a phone, Ms. 

Guliani? 

Ms. GULIANI. You in fact cannot turn off precise geolocation on 

your phone. Under FCC rules, all cell phones must have the ability 


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to have GPS information. The idea of this was to provide the ability for emergency personnel —— 

Mr. MASSIE. 911, yes. 

Ms. GULIANI.—to access you. But this information is routinely 

provided to law enforcement, and based on new regulations that 

the FCC has put out, they’ve asked carriers to increase the accuracy of this information so they can be able to assess, you know, 

what floor of a building you’re on. 

Mr. MASSIE. You know, I remember in the early 2000s I was in 

the tech industry and went to a factory to get something manufactured, and they were too busy. They were retooling all the cell towers so that all of your phones could be tracked. And it was under 

a mandate that presumably Congress issued. And it strikes me if 

this data didn’t exist, we wouldn’t be having this issue, or if a person had the right to turn that off. And you could see how it could 

easily work with a microcell where, you know, you plug this element into the Internet and then your cell phone works magically 

wherever the internet is, but I know that it won’t come on until 

the GPS finds a signal. 

Because of what we have done here in Congress, you are not allowed as a consumer to make a phone call unless the government 

is able to find out where you are. And we did all that under the 

pretext of safety. 

So, you know, one of the suggestions I would have, Mr. Chairman, is giving some exemption to that law, allowing people to have 

privacy because we are saying, well, it is not private when you 

share it with a third-party, yet we are not even allowing you to 

make the phone call without sharing it with the third party. So 

with that —— 

Chairman CHAFFETZ. I thank the gentleman. 

Mr. MASSIE.—I thank you. I yield back. 

Chairman CHAFFETZ. I now recognize the gentleman from Massachusetts, Mr. Lynch, for 5 minutes. 

Mr. LYNCH. Thank you, Mr. Chairman. 

Let me say at the outset that, absent any compelling reason, I 

would side with the chairman, Mr. Chaffetz, and Senator Wyden 

in requiring your reasonable cause a standard for this type of intrusion. And it would help your case, as Mr. Massie has laid out, 

if more members of this committee and if Congress had access to 

those memoranda that state your case. You are going to need it, 

I think. 

One of the differentials we have here is that Congress continues 

to move at a very slow pace, whereas the velocity of change in the 

areas of technology is breathtaking. Anybody with a 16-year-old 

daughter understands that, you know, cell phones are part of our 

personal effects now intimately and that the network of cell towers, 

it really does, as one of the courts described, provide a mosaic of 

a person’s personal and private life. 

And I think it was not a recent case, Katz v. United States, that 

says the Fourth Amendment doesn’t just protect places, it protects 

people. And with the advent of wearable technology, you know, the 

iPhone is connected to your cell phone. It is paired, so it really is— 

you know, technology has really permeated our private life. 


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One of the things I can’t get beyond is in other areas of surveillance for the Department of Justice, let’s take the Foreign Intelligence Surveillance Act, we require in the FISA Court that the Department of Justice provide probable cause that a person is an 

agent of a foreign power or acting on behalf of a foreign power. So 

we require you to prove—to make probable cause in that case. Why 

would we provide a lesser standard for good old American citizens 

when the consequences, you know, are not regarding terrorism or, 

you know, imminent threats? 

Mr. DOWNING. I can’t speak to the FISA side of the House. That’s 

not —— 

Mr. LYNCH. We can though. We oversee FISA. 

Mr. DOWNING. Of course. 

Mr. LYNCH. Yes. 

Mr. DOWNING. But I want to emphasize the way that this works 

is that there are many different kinds of location information. Certainly, if the access were to really precise information like the GPS 

information that’s on the chip that was just being discussed were 

accessed by the Department of Justice in order to track someone 

and follow them around, we would indeed use a warrant for that. 

Mr. LYNCH. Let me just reclaim my time because I think you are 

going to use it all up. But you have access to all of that and without proving probable cause right now. And so while you sort that 

all out, let me give you another example. In the FISA instance, 

Foreign Intelligence Surveillance, if there is a critical, urgent need, 

we allow the Department of Justice, the FBI to go out in the first 

instance and actually conduct that surveillance if the judge is going 

to be shot or, you know, there is an emergency situation. In the 

short term we allow them to go forward with that surveillance, but 

immediately, immediately, they have to go back to the FISA Court 

and ask to verify that surveillance and to legalize that surveillance 

under a standard of probable cause. 

So they are allowed to make the surveillance, but they have got 

to be in front of that FISA Court as soon as practicable, and they 

will be judged on their action by probable cause. Why would we not 

have that for instances that you engage in with respect to American citizens? 

Mr. DOWNING. The answer to your question, I think, is that there 

are different kinds of information. Some of it is more protected and 

more sensitive and more —— 

Mr. LYNCH. Yes, I know that. You are going back to the same 

point again, but we have an opportunity here for probable cause for 

you to make your case in each and every instance. I just don’t buy 

it. 

We have had plenty of investigations here of the FBI acting illegally with respect to the Boston ops of the FBI. We have had other 

situations where the FBI has overreached with, you know, confidential informants. So the trust—and, look, you know, I know 

they are cleaning up their act, they are doing a good job, but we 

have had too many instances where government agencies have 

overstepped their bounds, and I think that Mr. Jordan’s point 

about the IRS, you know, is probably a very strong example of why 

we should require reasonable cause. 

Mr. DOWNING. Well, the answer, I think, though —— 


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Mr. LYNCH. Probable cause, excuse me. 

Mr. DOWNING. If I may be allowed to respond is there are situations like the judge shooting case where we don’t have probable 

cause. That is, we have suspects that are in the case. We’d like to 

be able to include them or exclude them so as to guide the investigation, but we just don’t have probable cause at that stage. It’s 

an early stage of the investigation, and having the necessary building blocks to build to probable cause is necessary. That’s why we 

think having ability to gather information about the lesser standard, the lesser protected stuff is actually very important. 

Mr. LYNCH. All right. I clearly disagree, but thank you. 

I yield back. 

Chairman CHAFFETZ. I thank the gentleman. 

I would now recognize the gentleman from North Carolina, Mr. 

Walker, for 5 minutes. 

Mr. WALKER. Thank you, Mr. Chairman. Thank you, panel, for 

being here today. 

My colleague from Kentucky just a few minutes ago in the discussion, I believe you said that part of the problem is that you can’t 

release this information publicly, to use your words. Congress isn’t 

public. 

You also said that you and your staff have answered questions 

from the committee, but I would like to go back to last October on 

a question that we are still waiting for. In fact, it was asked by me 

in asking the representative from DOJ on whether cell-site simulators to collect the content of information or communications. Are 

you doing that before implementing its internal policy requirement 

warrants for the technology that you implemented in September, a 

month earlier? 

Mr. DOWNING. I’m sorry, if I understand correctly, are we requiring warrants to be used in following of the policy, is that correct? 

Mr. WALKER. That is correct, yes. The witness said she was not 

aware of this but would get back to us. 

Mr. DOWNING. We do require warrants except under those rare 

situations where there’s an exception like life-and-limb emergency. 

Mr. WALKER. Okay. So how many cases did you guys obtain a 

warrant before collecting this content? 

Mr. DOWNING. I don’t have exact numbers for—well, first of all, 

I would disagree whether it’s content or not, but I don’t have exact 

numbers. But the policy does require the collection of that information, and so we should be figuring that out as we go forward. 

Mr. WALKER. All right. So from your perspective as far as you 

know, when you implemented this new policy, you guys, you are 

telling me, on all the components that you captured, collected or 

the communications that you retained, there were warrants issued 

in that process? 

Mr. DOWNING. If I’m understanding you correctly, after the policy 

went into effect, are we using warrants? Is that the question? 

Mr. WALKER. That’s correct, yes. 

Mr. DOWNING. Yes, except under those rare circumstances where 

the policy has an exception. 

Mr. WALKER. Okay. All right. Fair enough. Thank you for answering that. 


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Mr. Larkin, I have a question for you. In your testimony you referenced three reasonable arbitrary lines that Congress can draw to 

better protect Americans. Your second suggestion was to impose a 

warrant requirement if, after a reasonable period of time has 

elapsed, the government still has a legitimate need for this 

geolocation information. Other than the two areas you mentioned, 

intelligence and non-law-enforcement interests, my question is this: 

Why should law-enforcement not be required to obtain a warrant 

from the onset for the geolocation information? 

Mr. LARKIN. There may be instances, as my panel member colleague said, where you can’t satisfy probable cause but you can satisfy reasonable suspicion. I think one thing that hasn’t been adequately explained is that there is a material difference between the 

two. It’s very difficult to try to put percentages on how right you 

are when you’re deciding whether it is probable cause or reasonable 

suspicion, but it’s clear that reasonable suspicion is far lower. 

Mr. WALKER. And you would build me a case of when you would 

say a warrant is not needed here but there is reasonable suspicion. 

Give me a sample situation, Mr. Downing or Mr. Larkin. What 

would that look like? 

Mr. LARKIN. Well, I think his example of someone who is shot 

and you want to see, for example, based on the people who have 

a motive to do it, who had cell phones in that area. You don’t have 

probable cause to believe that any one of the perhaps dozen people 

actually committed the crime, but you know that there are 50 people that hated someone and you want to find out how many of 

those 50 were in a particular area. So you find out that information. Now, you have something that you can work on that you 

never would have gotten if you didn’t—if you had a probable cause 

requirement. And then you can go from there. 

I mean, one of the—I mean, one way to try to balance this out 

is to have only reasonable suspicion requirement for a limited number of days at the front, and then after a certain period of time, 

if you thought that privacy interests demanded a probable cause 

showing, the probable cause showing would come into play only 

after a certain number of days. That would allow somebody to try 

to accommodate the privacy and law enforcement. 

Mr. WALKER. Mr. Downing, do you want to follow up on that 

same idea as far as what situations, what conditions, sample-wise? 

Would you say you wouldn’t need a warrant because there is probable cause? 

Mr. DOWNING. Actually, Mr. Larkin’s explanation is far better 

than mine. That’s exactly the kind of situation. We also have certain cases where, as another one was mentioned in my testimony, 

written testimony, where we just don’t have probable cause yet. We 

have scattered pieces of information, and if we could get that extra 

bit of information, it might put us over the line and be able to figure out who the person is that was responsible. So it does come up, 

and that’s going to be the burden if that source of information is 

offered. 

Mr. WALKER. Thank you, Mr. Chairman. I yield back. 

Chairman CHAFFETZ. I thank the gentleman. 

I now recognize the gentlewoman from Illinois, Ms. Duckworth, 

for 5 minutes. 


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Ms. DUCKWORTH. Thank you, Mr. Chairman. 

Appropriately balancing the privacy interests of Americans 

against need of law enforcement is of great concern to me. I really 

feel that it is a responsibility for Members of Congress to provide 

the oversight for government interactions in the daily lives of the 

American citizens. While I agree that a person’s interests and privacy is compelling and that it should be respected, I also cannot 

ignore the compelling interests of law enforcement to obtain information necessary to conduct criminal investigation. 

Mr. Downing, the collection of cell-site location data implicates 

both, and we have talked about this. Can you talk a little bit—you 

know, if there is no uniform standard for how we collect this information, does the Department have a different standard for whether 

the geolocation information can be obtained depending on where 

the target is located? 

Mr. DOWNING. I’m sorry, I’m not sure I understand ‘‘where the 

target is located.’’ You mean in what part of the country? 

Ms. DUCKWORTH. Or situation that they may be located in. And 

do you have—because there is no uniform standard, it makes it 

very hard to sort of pin down what we are trying to do here. 

Mr. DOWNING. Well, of course, before the cell phone company 

were to disclose that information to the investigative officer, we’re 

not going to know necessarily where that person is. In fact, that’s 

kind of the goal of what’s going on. So it wouldn’t be possible to 

in advance say, well, we only want information about the location 

if it’s in a certain context or otherwise. Does that answer your 

question? 

Ms. DUCKWORTH. It does, but is there any effort or any usefulness to some sort of a minimum uniform standard as you are trying to move forward with this? 

Mr. DOWNING. Well, I think the law already provides for a minimum standard. Under the Electronic Communications Privacy Act, 

for example, we would have to obtain a court order with a specificand-articulable-facts standard. So when we’re speaking of historical 

cell-site location information in particular, it is very much the case 

that it is not unprotected; it’s simply not quite as protected as 

other types of information which require a probable cause standard. 

Ms. DUCKWORTH. Okay. So then let’s talk about once you get the 

information. Does the Department have a consistent practice for 

how geolocation information is treated once it is collected? And, you 

know, specifically describe how that information is handled once it 

has been collected. If there is not a standard for what you can get, 

at least is there a standard for what you do with it once you get 

it? 

Mr. DOWNING. So the Department investigators, of course, encounter all sorts of very sensitive and private information from— 

personally identifiable information about people, their financial information, perhaps their medical information. So we very much respect the need to protect that information, to keep it safe and protected from disclosures—improper disclosures and so that it’s used 

only for the official purpose for which it’s collected. So site location 

information and other location information is treated similarly with 

due care to make sure that it is not inadvertently disclosed. 


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Ms. DUCKWORTH. Mr. Doucette, does your jurisdiction have similar safeguards in place when these kinds of data are being collected? 

Mr. DOUCETTE. Mr. Chairman, Ms. Duckworth, the—in Virginia, 

in order for us to have real-time location data, we do have—we do 

require probable cause there, and we do require a search warrant. 

At this point in time, given historical cell tower information, our 

standard is that of what is required by ECPA, that there be a reasonable standard—reasonable and articulable standard before we 

can obtain that information through a court order. And it’s not that 

we just go and say, okay, we’ve made the determination that we 

have reasonable—probable—an articulable suspicion and therefore, 

phone company, give us this particular information. We have to 

take that information before a court and the court has to say, yes, 

you do or no, you don’t. And we’ve had these particular orders refused by courts when they say you haven’t even risen to the level 

of reasonable articulable suspicion. So those are our standards in 

Virginia. 

Ms. DUCKWORTH. What I am concerned with is we have clear 

standards for how we treat physical evidence, but when you are 

talking about data that is gathered electronically, are there clear 

standards for how we handle that data, how it is tracked, how it 

is recorded, how it is shared, how it is preserved, when is it destroyed, all of that? Are there standards for the electronic data not 

necessarily in the same manner as physical evidence but are there 

standards? And either one of you can address this. 

Mr. DOUCETTE. Are there standards? If I understand your question correctly, are there standards as—once we receive that information, how —— 

Ms. DUCKWORTH. Yes, once you have the data, how do you—do 

you safeguard it in the same way you safeguard physical evidence 

of a crime? 

Mr. DOUCETTE. Obviously, we have discovery obligations, we 

have exculpatory evidence obligations that we do have to provide 

to defense counsel, and we take those quite seriously. And so we 

do disclose that particular information. How it gets disclosed from 

defense counsel from then on, I have no way of controlling that. I 

do not release it out into the general public. 

Ms. DUCKWORTH. Is it available to be mined by other people on 

other cases that may be unrelated? Do you see what I am trying 

to get to? 

Mr. DOUCETTE. I may or may not. I mean, any information that 

I release in open court, obviously, anybody is allowed to be in court 

and say, okay, this particular person’s phone was in this particular 

location at that particular point in time. 

Ms. DUCKWORTH. I guess what I am saying is, for example—and 

I am sorry, Mr. Chairman, I am over time. May I just follow a little 

bit —— 

Chairman CHAFFETZ. Go ahead. Finish the question. 

Ms. DUCKWORTH. So the question is if you get the data that you 

want that Mr. Larkin was mentioning, we want to know how many 

guys were in the vicinity of a crime that happened, and you get the 

data for this particular investigation and it takes place, what happens to that information? Is it just sitting there for other people to 


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come back and see who all else was there at that point in time 

later on, or is that evidence only used for that particular instance? 

I am worried that there are not —— 

Mr. DOUCETTE. Yes. 

Ms. DUCKWORTH.—safeguards and standards in place for how 

that information, now that you have it, is safeguarded and used in 

the future. 

Mr. DOUCETTE. Mr. Chairman, ma’am, the answer under Virginia law is none of my files are subject to FOIA. Everything is 

considered a criminal investigative file under our State Freedom of 

Information Act, and so no one can have access and say—hit me 

with a FOIA request and say what-do-you-have sort of thing. I do 

have an obligation, however, for discovery purposes and exculpatory evidence purposes to turn over to defense counsel. I do have 

a—obviously, whenever I present in open court as far as evidence 

is concerned, anyone is allowed to be in that open court and hear 

what evidence we present. But that is the only way they would 

have access to the information that we’re gathering. 

Chairman CHAFFETZ. I thank the gentlewoman. 

And to the gentlewoman’s point, part of the issue is Virginia, 

Utah, there are very few States that actually have these things in 

place, and then you have agencies outside of the Department of 

Justice that have this tool such as the IRS. And nobody knows 

what they are doing with it, and that is the point. 

I will now recognize the gentlemen from Georgia, Mr. Hice, for 

5 minutes. 

Mr. HICE. Thank you, Mr. Chairman. 

And I really appreciate this hearing and what we are discussing 

today. And I share with my colleagues a great deal of concern with 

what we have seen in the past of abuse of government and the 

Fourth Amendment and the concerns that have been brought up 

today, I think, are extremely valid and need answers. 

I would like to go a little bit more on a bit more of a practical 

direction at this point and, Mr. Larkin, ask you a couple of questions. Could you expand on the differences between the step-bystep traditional Fourth Amendment analysis and mosaic theory? 

Mr. LARKIN. Sure. Mosaic theory is like a Rorschach test. You 

look at the entire picture and see if the entire picture is reasonable. 

And in deciding whether it’s reasonable, one of the things you take 

into account is the amount of information that you acquire. If all 

you’re doing is looking at someone over the course of one day, you 

may get a very different answer than if you look at it over the 

course of 30 days. Twenty-eight days was the number of days that 

was at issue in Jones, and the concern was you got a lot more information following somebody for 28 days than one, which is absolutely true. 

If you look at it, however, the way matters normally have been 

looked at, you look at each step in what the government does, analyze each one separately, and if each one separately is lawful or 

justified, then you don’t worry about what happened at steps 1 and 

2 when you’re looking at step 3, and you don’t worry about what 

happened at step 3 when you’re looking at step 10. You don’t ever 

step back and do the sort of Rorschach analysis. 


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The problem for a court is in drawing the line. You have to draw 

an arbitrary line. You have to say 2 days is enough, is okay, 20 

days is too much. And you have to then figure out where between 

those two. Congress can do that. Congress can draw arbitrary lines 

by deciding that at a certain point you cannot—you can go up to 

a certain point based on, say, reasonable suspicion or based even 

on no justification at all. But we’re concerned after that so we’re 

going to cut it off at whatever day you choose, 3, 7, or 10. 

Mr. HICE. Is it a fair assumption to believe that you believe Congress should make that determination? 

Mr. LARKIN. Yes. 

Mr. HICE. Okay. 

Mr. LARKIN. Now, you could leave it just at reasonable suspicion 

throughout. That’s what the Department is doing now, I think, 

with the exception of the policy. 

Mr. HICE. But it is fairly vague at that —— 

Mr. LARKIN. But there is a material difference between reasonable suspicion and probable cause. The latter is much more serious. 

So one way you could balance this law enforcement and privacy interest is to have a cutoff period. 

Mr. HICE. Okay. Well, let’s go with reasonable cause. From my 

understanding of this whole third-party doctrine issue, I believe 

you mentioned earlier, has been affirmed by the courts for decades 

now. But as we all know, since then, technology has changed drastically. People use email now more than they do the Postal Service, 

for example. So in a time like this where technology has evolved 

so much, do you believe that the bar for reasonable cause for privacy has it changed or should it have changed? 

Mr. LARKIN. I wouldn’t say that the way you define reasonable 

suspicion should change. What I would say is that at a certain 

point you may want to say that’s insufficient and that you need 

probable cause because I don’t think you want to change the standards themselves, but you may decide that at a certain point a reasonable suspicion standard allows you to accumulate so much information, you’re violating the privacy of people involved. 

Mr. HICE. Okay. But from a technological perspective, how do 

you see the changes in technology where we are all walking around 

with our smartphones, our emails, as opposed to 30, 40, 50 years 

ago? It was through the mail or other means. How has the changing of technology, do you believe, has it altered or should it have 

altered the bar as it relates to reasonable expectation? 

Mr. LARKIN. There’s no doubt that it has, and the reason it has 

is, as was pointed out in, I think, Justice Alito’s opinion, practicality was a basic limitation on the ability to acquire evidence in 

the past. Now, if you had 10 people in your police department, you 

couldn’t do the same sort of intensive surveillance that you could 

if you had 10,000 people in your police department. The NYPD can 

do a lot more than a very small police department can, and those 

sorts of practicalities were to some extent, I think, factors that 

courts considered in deciding how far the Fourth Amendment 

should go. You could say that they balanced the two to some extent. 

Unfortunately, the historic limitation that practicality imposed 

no longer is with us because the ability to collect and analyze inforVerDate Nov 24 2008 09:40 Feb 16, 2017 Jkt 000000 PO 00000 Frm 00091 Fmt 6633 Sfmt 6633 H:\23406.TXT APRIL

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mation has so superseded the ability of any individual to do either 

of those that it may be necessary to reexamine the entire area. 

Mr. HICE. Okay. Well, thank you very much, and I yield back. 

Thank you. 

Chairman CHAFFETZ. I thank the gentleman. 

I will now recognize the gentleman from North Carolina, Mr. 

Meadows, for 5 minutes. 

Mr. MEADOWS. Thank you, Mr. Chairman, and thank each of you 

for your testimony. 

I find myself in a very difficult spot. I don’t know that I have on 

many occasions ever agreed with the ACLU, and I don’t know on 

many occasions that I have ever gone against law enforcement, and 

yet this fundamental question that we are here today addressing 

is, Mr. Downing, very troubling because of the expectation of privacy and what foundationally is what all Americans presume that 

they should enjoy. 

And so I guess under what scenario can you justify not sharing 

with Members of Congress the Jones guidance? And let me caution 

you because I go into a skiff here and I see all kinds of national 

security secrets that I am not allowed to divulge, and yet somehow 

your Jones guidance would supersede our nuclear capability in 

terms of my ability to see a memo. 

Mr. DOWNING. As I said before —— 

Mr. MEADOWS. Is it more important than our nuclear capability? 

Mr. DOWNING. The Department is very much interested in providing whatever information the —— 

Mr. MEADOWS. So you are going to provide to all the Members? 

Mr. DOWNING. At this point there are, however —— 

Mr. MEADOWS. Because having an interest and doing something 

are two different things, Mr. Downing. So are you going to provide 

to the Members of Congress? I can see all kinds of national security 

secrets, some that you may not even get to see. 

Mr. DOWNING. We are seeking to do an appropriate accommodation with the committee —— 

Mr. MEADOWS. Appropriate according to who? 

Mr. DOWNING. Mutually appropriate accommodation to the committee —— 

Mr. MEADOWS. Well, we think is appropriate that the entire committee should be able to see it, so —— 

Chairman CHAFFETZ. If the gentleman will yield? 

Mr. MEADOWS. Yes. 

Chairman CHAFFETZ. I don’t think we should be treated any different than every other Member of Congress. I have been fighting 

this for years. And even though we are grateful, it is amazing to 

me that I have to negotiate as a Member of Congress, as a chairman of the committee, as someone that serves on the Judiciary 

Committee to an accommodation—I mean, part of this deal is we 

are not supposed to take notes, we are not supposed to do certain 

things. What? What? Seriously? 

The reason I have resisted every other gesture thus far is because of all these conditions. I shouldn’t have to have a condition. 

I represent 800,000 people. They trust me to go in in this republic, 

and look at this information and keep it confidential, that we sign 

oaths, we abide by the law. If we don’t do that, then you should 


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prosecute us. But we see, as Mr. Meadows said, some of the most 

sensitive information that you can possibly have, but the guidance 

on post-Jones is somehow so sacred that thus far you are only 

granting two out of 535 people to go see this? It seems very inconsistent. 

I am sorry. I yield back to the gentleman. 

Mr. MEADOWS. You go ahead. You can comment. 

Mr. DOWNING. It’s not really a matter of trust. I think that’s not 

the right way to think about this. The Department has confidentiality needs in things like the way—the positions that we’re going 

to take. We’re also worried that disclosures of one sort will be regarded later by a court as a waiver of a privilege as well. So there’s 

a number of factors that go into this consideration. 

Mr. MEADOWS. But it is a matter of trust because if you are saying that you can’t—I mean, because we are protected in that. If 

Members of Congress—maybe not our staff, but Members of Congress would be protected. 

But let me go a little bit further because what you are saying is 

reasonable suspicion is enough to be able to use this, is that correct, in some cases? 

Mr. DOWNING. For the historical cell-site information, yes —— 

Mr. MEADOWS. All right. So is it —— 

Mr. DOWNING.—we’ve been very public about that. 

Mr. MEADOWS. Is it okay for the IRS to use reasonable suspicion 

as their guidance? 

Mr. DOWNING. If what we’re talking about is historical cell-site 

information, they would have the same rules as all the other law 

enforcement agencies, yes. 

Mr. MEADOWS. All right. So let me ask you is when we have had 

this whole Lois Lerner thing, and I don’t normally harp on that, 

but they had reasonable suspicion according to them—according to 

DOJ they had reasonable suspicion. So what you are saying is they 

could use a stingray for every single group that they had out there 

that was asking for 501(c)(4) status? 

Mr. DOWNING. I don’t have any —— 

Mr. MEADOWS. Well, that is what they are saying. 

Mr. DOWNING.—responsibilities —— 

Mr. MEADOWS. It was DOJ that we actually had a hearing the 

other day, so that is troubling to me that we would do that. 

Wouldn’t it be troubling to you? 

Mr. DOWNING. I think there should be a consistent standard for 

all law enforcement investigations, and the one that —— 

Mr. MEADOWS. But the consistent standard should be probable 

cause, wouldn’t you think, with an expectation of privacy? 

Mr. DOWNING. There are particular situations like the shooting 

at the judge, though, that caused the probable cause standard to 

not be —— 

Mr. MEADOWS. I don’t know of any Tea Party group that shot 

anybody, do you? 

Mr. DOWNING. I don’t. 

Mr. MEADOWS. Well, so let’s not talk about shooting of a judge 

and comparing it to the IRS, I mean, because you are somehow justifying that that would be appropriate. 

Mr. DOWNING. I’m merely saying that —— 


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Mr. MEADOWS. They can use your same standard. 

Mr. DOWNING. There should only be one standard —— 

Mr. MEADOWS. So what about —— 

Mr. DOWNING.—yes. 

Mr. MEADOWS. All right. So is it breaking the law if a criminal 

buys a stingray and they start to use this? 

Mr. DOWNING. Yes, it is. 

Mr. MEADOWS. Now, why would that be because there is no probable cause standard? 

Mr. DOWNING. No, whether something’s a crime and whether 

something is available to the government under —— 

Mr. MEADOWS. Yes, but here is—the difference is what you are 

doing is superseding the judicial branch by basically saying the executive branch here knows best because what you are saying is we 

don’t really need probable cause and go before a judge because we 

have this reasonable suspicion standard. 

Mr. DOWNING. I would emphatically disagree. It’s the courts that 

decide this. And when we have obtained those orders, it’s by going 

to a judge in order to obtain it, and they’ve signed the—and then 

it’s litigated later. And today, the three circuit courts that have decided this issue have not had their opinions vacated, have ruled 

that there is no reasonable expectation of privacy —— 

Mr. MEADOWS. Well, here is where I would caution you, and I am 

going to yield back to the chairman. This is very problematic in a 

bipartisan way, and you have a choice here today, to start to work 

it where we can help law enforcement enforce and still protect our 

Fourth Amendment rights or you are going to find yourself without 

a tool very quickly because I think there is a bipartisan desire here 

to make sure that the protection for all Americans is something 

that they should expect. 

I appreciate the patience of the chair. 

Chairman CHAFFETZ. The gentleman yields back. 

I now recognize the gentleman from Wisconsin, Mr. Grothman, 

for 5 minutes. 

Mr. GROTHMAN. Thank you. 

I am going to switch a little bit more to some other ways people 

are tracked. We are going to start out here with Mr. Downing, but 

we will go on if someone else wants to jump in. 

How would Justice obtain information from, say, OnStar or a 

similar feature? There is a GPS feature built into cars and about 

car movements. 

Mr. DOWNING. So in the situation where there is a GPS chip in 

a car or, for that matter, in a phone and the company activates 

that chip in order to determine the location of the phone or the car 

and reports that back, that’s a situation where we would use a 

search warrant unless there were an exception to the Fourth 

Amendment. 

Mr. GROTHMAN. Okay. Would a grand jury subpoena be sufficient? 

Mr. DOWNING. No, not in that situation. 

Mr. GROTHMAN. Okay. What would be the procedure followed to 

obtain real-time or prospective GPS location from an OnStar-like 

device, and is it different from past movements? 


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Mr. DOWNING. So as I mentioned, a search warrant would be the 

type of tool that we would use when it’s that kind of GPS level and 

collecting it prospectively. I don’t believe that OnStar collects historical location information. I’m not familiar with that. 

Mr. GROTHMAN. Okay. Can you have a service provider send 

real-time data location from the device’s GPS? 

Mr. DOWNING. If you’re asking—if it’s a real-time collection of 

that GPS information, that would be, as I said, with a search warrant to the provider. 

Mr. GROTHMAN. Okay. I will yield the remainder of my time. 

Chairman CHAFFETZ. Before he yields, let me—if the gentleman 

would yield just to kind of follow up on that. 

Can the government have them turn on the GPS device in a car? 

Mr. DOWNING. Yes, I believe in many ways a car GPS device of 

that sort is very similar to a cell phone, and there are—some of the 

companies—I don’t know about OnStar in particular—that have 

that capability in the same way that some cell phone companies do. 

Chairman CHAFFETZ. Ms. Guliani, can you give us your perspective on that? 

Ms. GULIANI. I think that —— 

Chairman CHAFFETZ. I am sorry, your microphone. 

Ms. GULIANI. You know, one of the things that’s been particularly concerning to us is, you know, as I understand it, part of the 

reason that the Department of Justice believes that a probable 

cause standard is not the appropriate one is this idea that, you 

know, individuals have voluntarily provided this information. And 

that’s certainly not true in the cell phone contacts for most of us, 

you know, are not aware of the information that phone carriers collect, and when it comes to GPS information, don’t really have an 

ability to turn that feature off. 

And I think whether its OnStar, whether it’s the medical devices 

of the future, the ability to turn that information off may not exist. 

And the idea that law enforcement can, you know, in some cases 

ping the device or remotely turn on the device and capture our location information when we are not aware, we wouldn’t want it 

captured, and do so potentially without appropriate protections is 

very concerning and doesn’t comport with what the Fourth Amendment would require in this context. 

Chairman CHAFFETZ. I would assume that the gentleman from 

Wisconsin yields back, and then I will recognize myself and then 

Mr. Cummings as we wrap up here. 

We have been talking a lot about the Federal, you know, the Department of Justice. Mr. Downing, the positions that you represent, 

is that true throughout all of the Department of Justice? Is it specific to just the criminal division, which you represent? I mean, are 

we to assume that this includes the DEA and the marshals and the 

FBI, et cetera? 

Mr. DOWNING. The positions that I’ve been discussing apply 

across the board to all criminal investigations. I can’t speak for national security investigations. 

Chairman CHAFFETZ. Okay. I just want to make sure I understand the scope. 

And what is also important for those listening to this hearing 

and members is that is just the Department of Justice. And the 


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concern is that other Departments have their own standards, their 

own way of collecting and securing these data. 

As Ms. Duckworth talked about, one of my concerns is what are 

the standards? Because if you are going back to not having to use 

a warrant to gather historical information, there are no bounds on 

that. If you knew that some political group or organization was 

meeting at a certain location at a certain time, you could go get all 

that information and not have to get a warrant, correct, Ms. 

Guliani? 

Ms. GULIANI. That’s correct, and I think even more concerning is 

that there’s no notice. So, for example, if you’re in a situation 

where, you know, the Department of Justice or another law enforcement agency is collecting information about hundreds of individuals and what cell tower they connected to, it’s not the case that 

after 90 days or the conclusion of the investigation that you’ll be 

provided notification and able to challenge that conduct in court. 

And that’s different than the approach taken, for example, by the 

wiretap statute. And so what we’ve essentially got is a situation 

where innocent people who have their information collected as a 

practical matter just don’t have recourse to challenge this conduct 

in court. 

Chairman CHAFFETZ. The ACLU did a very interesting report. I 

can’t remember the date of it but I was fascinated by it. It is part 

of what compelled my interest in this topic where you did a survey 

across the Nation of the various law enforcement—I believe it was 

municipal, county, and State law enforcement. Can you generalize 

that? 

And I would ask unanimous consent to enter into the record— 

although I don’t have it here, I will get it in the next 2 days. Without objection, so ordered. 

Chairman CHAFFETZ. But, Ms. Guliani, can you give us the 

framework of that survey? 

Ms. GULIANI. Sure. We’ve done two surveys. One was we filed 

FOIA requests with law enforcement jurisdictions across the country to ask, you know, what—whether they’re using—collecting location information, and if so, what standards apply. And what we 

found was, by and large, most law enforcement agencies were collecting this location information but that standards differed widely. 

So in some cases, jurisdictions such as those in Kentucky and Hawaii had voluntarily decided to follow a probable cause standard. 

In others, we found that jurisdictions were following a lower standard or not requiring a warrant. 

As part of that report, one of the things that we found was that, 

despite Department of Justice policy that states that a warrant 

should be required for real-time prospective collection, in both New 

Jersey and Florida, it appeared that there had been cases where 

location information had been collected without a warrant. So that 

was one report we’ve done. 

The second examination we’ve done is we’ve also conducted FOIA 

requests on the use of stingrays, you know, these cell-state simulators which can collect massive amounts of information.And what 

we found is, despite the fact that there are, you know, no Federal 

laws and no Federal guidance even concerning localities that receive Federal funds to purchase stingrays, but also the standard 


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varied widely. In some cases, law enforcement were not getting any 

court authorization. In other cases, even in cases where they received court authorization, they weren’t informing judges, hey, this 

is what we’re using, this is the impact of what it has. So judges 

were in some senses blindly, you know, signing orders. 

And the third thing that we found was that there had been a 

concerted effort to keep these devices secret from both judges and 

defense attorneys and the public. And so the Department of Justice 

signs nondisclosure agreements with States and localities who purchase these devices, and those nondisclosure agreements say that 

information cannot be released. 

And there may be cases where, in lieu of releasing information 

to a judge, the State or locality is suggested to drop the case or 

offer a plea bargain. And that was particularly concerning to us because, as we see it, the courts represent a way to provide oversight 

of the use of these devices, and to the extent that we are—there 

is a concerted effort to keep them secret from even these entities, 

that is a loss to the American people. 

Chairman CHAFFETZ. So coming back, Mr. Downing, the Department of Justice has these nondisclosure agreements, these cell-site 

simulator nondisclosure agreements with State and local law enforcement. Is that something you can provide to this committee? 

Mr. DOWNING. Yes, we can provide those. I would note, though, 

that the approach that we’ve taken particularly following the cellsite simulator policy is to make clear that we’re not trying to conceal and nor should that policy be implied to conceal the fact that 

a cell-site simulator was used and that, of course, there’s always 

an obligation of candor to the court. At this point, the FBI is actually looking again at those nondisclosure agreements and is in the 

process of revising them and trying to clarify what the approach is 

now. 

Chairman CHAFFETZ. Why the change? 

Mr. DOWNING. Well, I don’t know that I have all the factors, but 

certainly when the environment has changed, there’s a certainly a 

lot more information publicly available about these devices. And 

when the Department did an analysis that—of looking at this 

whole situation, we decided to institute the policy in the end, and 

now we’re trying to make sure that all of our practices are consistent with that policy. 

Chairman CHAFFETZ. I now recognize the ranking member. 

Mr. CUMMINGS. Ms. Guliani, as I was just listening to you, it 

sounds like different standards or no standards all over the place, 

is that right? 

Ms. GULIANI. That’s exactly right. There’s different standards 

among States. There’s different standards, as you’ve heard, between types of location information, and there’s different standards 

that appears from even how you collect that information, whether 

it’s a stingray or whether it’s through a phone carrier. 

Mr. CUMMINGS. So would you agree that we have a serious equal 

protection issue here? 

Ms. GULIANI. I think there are serious concerns that, you know, 

depending on where you live or the type of technique being used, 

that you will have a different standard apply, which is one of the 

reasons we believe it’s so important that we have legislation or at 


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a minimum that the average American has information from the 

Department of Justice as to what standard actually applies, you 

know, what standard applies when they’re collecting historical location information, historical location information from a phone carrier versus the information that might be collected from, say, a 

phone app. Those are all missing pieces where the public and it appears in some cases the Members of Congress have been left in the 

dark. 

Mr. CUMMINGS. Mr. Downing, you know, in listening to the other 

members of the committee and the chairman, it is good that we 

were able to reach an agreement, but if I were another member, 

I would be very upset. I am being frank with you. I mean, we all 

represent approximately the same amount of people, and I think 

we made reasonable arguments that we are entrusted with all 

kinds of very sensitive information. 

And I am hoping that we can—I know we reached our agreement, but I hope that we can revisit that because I think it is unfair to members, but particularly with something as sensitive as 

this. It affects almost every single person, am I right, Ms. Guliani 

—— Ms. GULIANI. Almost every —— 

Mr. CUMMINGS.—in this country? 

Ms. GULIANI. Almost every American has a cell phone. 

Mr. CUMMINGS. And we represent them. And I think the public 

would be alarmed if they knew that there was such a memo apparently giving guidance and their Members could not see it. I mean, 

it just strikes me as just—something is not right there. And that 

is after—you know, the chairman will tell you, we try to reach a 

balance, but it seems to me like this is kind of not balanced. But 

thank you all for your testimony. I really appreciate you. 

Chairman CHAFFETZ. As we conclude here, I just want to kind 

of go down the panel, just take 30 seconds or so if you have any 

concluding thought. I wasn’t able to let all panel members answer 

all questions, so if there is something you want to share verbally 

here, and again, we would always welcome your ongoing communication and input and thoughts. 

But let’s start with Mr. Downing and kind of go down the line, 

and then we will conclude this hearing. 

Mr. DOWNING. Just in closing, I’ve heard a lot of talk about 

whether there’s a need for legislation. Obviously, we don’t have a 

position—obviously—we don’t have a position on particular legislation, but I would encourage the members of the committee to think 

about the different kinds of location information there are and to 

consider whether there are different balances that need to be 

struck between those different kinds, taking into account the needs 

of public safety and the justice system. And we look forward to 

working with the committee as that process moves forward. 

Chairman CHAFFETZ. Look, we have a duty and an obligation to 

help keep the public safe, but I would also argue that we are different in the United States of America. We are more open and 

transparent and critical. And part of my frustration is not the good 

work that you and so many of the men and women at the Department of Justice do. It is just that in order to try to craft the right 

solution, if we don’t see all the facts, we are going to come to the 


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wrong conclusion. And Congress is notorious for coming up with 

wrong conclusions. So we are trying to get it right, and having the 

maximum information helps us to get there. And that is the spirit 

with which we approach this. So thank you personally for your 

commitment to this country and all that you do, and thanks for 

being here today. 

Mr. Doucette? 

Mr. DOUCETTE. Thank you, Mr. Chairman. 

One of the questions that was asked during the course of today’s 

hearings was dealing with who should act, whether it should be 

Congress or the courts, and who can act most quickly in order to 

deal with the changing technology. I think the answer is clearly 

that the—this particular body needs to—can act more quickly as 

the technology change. But that’s not my original thought. That’s 

Justice Alito in his concurrence, and United States v. Jones certainly suggested that. 

That concurrence also brought up the concept that Mr. Hice was 

asking the questions about the mosaic theory, and that’s certainly 

the topic of a law review article written by Professor Orin Kerr of 

the George Washington University School of Law. It’s a fascinating 

article. The problem that is raised by the mosaic theory and that 

Professor Kerr raises is that, just as Mr. Larkin has pointed out, 

at what point in time does what is a—not a violation of a Fourth 

Amendment become a violation of the Fourth Amendment? 

And I think that obviously if Congress is going to act and should 

act in this particular matter and can act in a number of different 

ways saying that historic cell tower information needs a probable 

cause determination or doesn’t need a probable cause determination or finds the middle ground that Mr. Larkin was suggesting 

perhaps as far as his second alternative is that maybe at some 

point in time, whether it’s 5, 10 days, what has been justified by 

a reasonable and articulable suspicion, current burden of a probable cause determination, that would aid us tremendously in guiding law enforcement and guiding the courts as to how to imply the 

standard for historic cell tower information. 

I thank you for the opportunity to address this body. 

Chairman CHAFFETZ. Thank you. And again, thanks for your 

good work and thanks for your expertise in being here today. I do 

appreciate it. 

Mr. Larkin? 

Mr. LARKIN. Three brief points. First, several members asked 

what is the adverse effect from a search warrant requirement? I 

think the right answer to that is we don’t know. We don’t know in 

individual cases because no individual police office or agent is going 

to be able to say the reason I couldn’t make an arrest was I had 

to use a probable cause standard rather than a reasonable suspicion standard. Plus, at a macro level, we don’t have anybody collecting that information on individual cases. So we really don’t 

know the answer to what is the adverse effect from a search warrant requirement. 

Second, with respect to the post-Jones memo, there isn’t a good 

argument why DOJ shouldn’t share it. It’s, I think, a historic artifact. I was at DOJ for 9 years, and the executive branch and DOJ 

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gress has always taken a position that the attorney-client privilege, 

for example, doesn’t apply between the branches because it’s all 

one government. The same is true here, and certainly as your colleague said, if you can get information dealing with the government’s nuclear capabilities, you can get information dealing with 

stingrays. 

Finally, your colleague from Wisconsin, I think —— 

Chairman CHAFFETZ. Yes. 

Mr. LARKIN.—asked about OnStar. OnStar is a private company. 

The relationship OnStar has with a customer, whether it’s Ford or 

John Doe who buys a Ford with OnStar, is not governed by the 

Constitution. There may be Federal statutes that regulate to whom 

OnStar can give that location information, but the Constitution 

doesn’t come into play at all. So if there’s no statute limiting what 

OnStar can do, OnStar can give that information to the New York 

Times if it wants. So what happens when you regulate the government is different than private parties. 

Chairman CHAFFETZ. Well said. And again, thank you, Mr. 

Larkin, for your expertise and your participation here today. We do 

appreciate it. 

Mr. LARKIN. Thank you, sir. 

Chairman CHAFFETZ. Ms. Guliani? 

Ms. GULIANI. Well, thank you very —— 

Chairman CHAFFETZ. Microphone. 

Ms. GULIANI. Thank you very much for having this hearing. 

I would underscore, you know, the points I made earlier. I think 

that now the time is ripe for a congressional action here and for 

legislation and for holding law enforcement to the same standard 

that applies to information in a variety of other contexts, you know, 

whether it is entering your home or getting a letter in a probable 

cause standard. 

I would say, though, in the interim, as we wait for such legislation, I know that members of the committee will continue to press, 

and I hope that they will press the Department of Justice to release its policies publicly. I appreciate the fact members of this 

committee will now have an opportunity to see the Jones memos. 

That’s an opportunity that all Americans should have. 

And we should also understand exactly what standards are governing collection of location information. And to the extent that the 

Department of Justice can release a policy, similar to what it did 

with stingrays, release a public policy so that Americans can understand what standard applies, and we hope that that policy will 

have a probable cause standard. And we think that it should have 

a probable cause standard to comport with the Fourth Amendment. 

And without such actions, I think we risk being in a place where 

simply due to modern technology, the fact that I want to use a cell 

phone or I want to have a GPS system in my car that somehow 

I’m entitled to less privacy, somehow my life is an open book in a 

way that the Founders didn’t intend. And, you know, given these 

technological realities, I certainly hope that Congress will press the 

Department of Justice to take these actions. 

Chairman CHAFFETZ. Thank you. You have been very insightful 

and very helpful on this, Ms. Guliani, and I do appreciate your parVerDate Nov 24 2008 09:40 Feb 16, 2017 Jkt 000000 PO 00000 Frm 00100 Fmt 6633 Sfmt 6633 H:\23406.TXT APRIL

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ticipation and your insight, your help with this committee. So 

thank you so much for being here. 

Ms. GULIANI. Thank you. 

Chairman CHAFFETZ. Thank you all. The committee stands adjourned. 

[Whereupon, at 12:12 p.m., the committee was adjourned.] 

Æ 


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