U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

74–259 PDF 2012

GEOLOCATIONAL PRIVACY AND 

SURVEILLANCE (GPS) ACT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

ON

H.R. 2168 

MAY 17, 2012 

Serial No. 112–125 

Printed for the use of the Committee on the Judiciary 

( 

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

(II) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

MARK AMODEI, Nevada 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

JARED POLIS, Colorado 

RICHARD HERTLING, Staff Director and Chief Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

LOUIE GOHMERT, Texas, Vice-Chairman 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

J. RANDY FORBES, Virginia 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

SANDY ADAMS, Florida 

MARK AMODEI, Nevada 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

SHEILA JACKSON LEE, Texas 

MIKE QUIGLEY, Illinois 

JARED POLIS, Colorado 

CAROLINE LYNCH, Chief Counsel 

BOBBY VASSAR, Minority Counsel 

(III) 

C O N T E N T S 

MAY 17, 2012 

Page 

THE BILL 

H.R. 2168, the ‘‘Geolocational Privacy and Surveillance (GPS) Act’’ .................. 185 

OPENING STATEMENTS 

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

from the State of Wisconsin, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security .......................................................................... 1 

The Honorable Jason Chaffetz, a Representative in Congress from the State 

of Utah, and Member, Subcommittee on Crime, Terrorism, and Homeland 

Security ................................................................................................................. 2 

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security .......................................................................... 22 

WITNESSES 

John R. Ramsey, National Vice President, Federal Law Enforcement Officers 

Association 

Oral Testimony ..................................................................................................... 24 

Prepared Statement ............................................................................................. 26 

Joseph I. Cassilly, Past-President, National District Attorneys Association 

Oral Testimony ..................................................................................................... 27 

Prepared Statement ............................................................................................. 29 

Edward J. Black, President and CEO, Computer & Communications Industry 

Association 

Oral Testimony ..................................................................................................... 36 

Prepared Statement ............................................................................................. 38 

Catherine Crump, Staff Attorney, American Civil Liberties Union (ACLU) 

Oral Testimony ..................................................................................................... 47 

Prepared Statement ............................................................................................. 49 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable F. James Sensenbrenner, Jr., a Representative in Congress from the State of Wisconsin, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security ................................ 1 

Material submitted by the Honorable Jason Chaffetz, a Representative in 

Congress from the State of Utah, and Member, Subcommittee on Crime, 

Terrorism, and Homeland Security .................................................................... 3 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Electronic Privacy Information Center (EPIC) ........ 87 

Letter from Walter A. McNeil, President, International Association of Chiefs 

of Police ................................................................................................................. 100 

Berkeley Technology Law Journal ......................................................................... 101 

Letter in opposition to H.R. 2168 ........................................................................... 180 

Letter from the Federal Bureau of Investigation Agents Association (FBIAA) . 183 

(1) 

GEOLOCATIONAL PRIVACY AND 

SURVEILLANCE (GPS) ACT 

THURSDAY, MAY 17, 2012 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON CRIME, TERRORISM,

AND HOMELAND SECURITY, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 10:03 a.m., in room 

2141, Rayburn House Office Building, the Honorable F. James Sensenbrenner, Jr. (Chairman of the Subcommittee) presiding. 

Present: Representatives Sensenbrenner, Goodlatte, Lungren, 

Chaffetz, Marino, Gowdy, Cohen, Johnson, Chu, Deutch, Jackson 

Lee, and Polis. 

Staff Present: (Majority) Caroline Lynch, Subcommittee Chief 

Counsel; Arthur Radford Baker, Counsel, Tony Angeli, Counsel, 

Lindsay Hamilton, Clerk; (Minority) Bobby Vassar, Subcommittee 

Chief Counsel; Joe Graupensperger, Counsel; and Veronica Eligan, 

Professional Staff Member. 

Mr. SENSENBRENNER. The Subcommittee will be in order. Without objection, the share will be authorized to declare recesses during votes on the floor. Today’s hearing is on H.R. 2168, the 

‘‘Geolocational Privacy Surveillance (GPS) Act.’’ I would like to especially welcome our witness and thank you for joining us today. 

I am joined by my colleague from Virginia, the distinguished Ranking Member of the Subcommittee, Bobby Scott, and also the principal author of the bill, the gentleman from Utah, Mr. Chaffetz. At 

this time I would like to ask unanimous consent to insert my opening statement in the record and yield my time to Mr. Chaffetz for 

an opening statement. 

[The prepared statement of Mr. Sensenbrenner follows:] 

Prepared Statement of the Honorable F. James Sensenbrenner, Jr., a Representative in Congress from the State of Wisconsin, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security 

Today’s hearing examines H.R. 2168 the ‘‘Geolocational Privacy and Surveillance’’ 

or the ‘‘GPS Act.’’ This bill introduced by the gentleman from Utah has bipartisan 

support and currently has 18 cosponsors. A similar measure has been introduced in 

the Senate. 

The law has not kept pace with the assortment of new communication devices and 

other technologies that are now widely available in today’s marketplace. This is particularly true with location –based technology. As GPS technology has become 

cheaper, more widely available, and used more frequently in our everyday lives, the 

legal authorities and restrictions that are, or should be, in place to govern when 

2 

such information about another person is accessed and used have become less than 

clear. 

It is also not completely clear how location-based technology is used and exactly 

who is using it. We know that law enforcement uses it and we will hear about that 

today. But the technology is also used or can be used by commercial entities and 

really just about anyone that wants to spy on your whereabouts. 

This bill defines what geolocation information is and establishes uniform legal authorities for obtaining this information. In short, this bill does what the Supreme 

Court invited, or challenged, the legislative branch to do when they decided the 

Jones case earlier this year. In that decision, Justice Alito stated ‘‘A legislative body 

is well situated to gauge changing public attitudes, to draw detailed lines, and to 

balance privacy and public safety in a comprehensive way.’’ 

H.R. 2168 properly balances the appropriate use of the information obtained from 

the technology and the privacy rights of those enjoying the convenience and other 

benefits that the technology confers to us in our everyday lives. 

No one doubts that this information is useful, especially to law enforcement officers and agents. The big question is how do we balance the needs of the police with 

the expectations of privacy of those that they protect? This bill tries to strike the 

appropriate balance and give the police the tools they need and our citizens the privacy that they expect. 

It is no secret that court ordered electronic surveillance has long been a valuable 

tool for effective law enforcement. At least in terms of ‘‘content’’ interception, it is 

a technique that is typically used as a last resort, when other investigative techniques have failed or would be likely to fail or would even be too dangerous to try. 

When utilizing GPS and other location-based technology, the police often use it early 

in their investigations and there is generally no court order or supervision at all. 

By incorporating a judicial process that must be followed to seek a court order 

authorizing this type of surveillance, we are assured that, like in the case of the 

interception of a communications ‘‘content,’’ that this technique is not abused. 

There would likely be internal layers of review before a judicial application was 

even made. Facts would have to be established and proved, and ultimately a judge 

would be the one who decides, based on all of the information presented, if such 

a technique is warranted. 

Once authorized, law enforcement would comply with any reporting requirements 

of the court and there would be procedures to protect the rights of parties whose 

geolocational information was improperly obtained. 

It is important to underscore the fact that this bill does not take away the use 

of GPS or other geolocational technology from law enforcement officials. The loss of 

this investigative technique would be a huge risk to both our public safety and our 

national security. The bill provides some common sense and perhaps some long 

overdue ‘‘rules of the road’’ regarding the use of these technologies. 

I welcome our witnesses and look forward to hearing their testimony. 

Mr. CHAFFETZ. Thank you, Mr. Chairman. I truly do appreciate 

your cosponsoring this legislation and for holding this hearing. I 

would ask unanimous consent to insert into the record four documents, the Salt Lake Tribune editorial of June 19, the Oregonian 

Editorial, as well as a statement from Professor Matt Blaze of University of Pennsylvania, and a statement of principles from the digital due process coalition. 

Mr. SENSENBRENNER. Without objection. 

[The material referred to follows:] 

3 


74259A-1.eps
4 


74259A-2.eps
5 


74259A-3.eps
6 


74259B-1.eps
7 


74259B-2.eps
8 


74259B-3.eps
9 


74259B-4.eps
10 


74259B-5.eps
11 


74259B-6.eps
12 


74259B-7.eps
13 


74259B-8.eps
14 


74259B-9.eps
15 


74259B-10.eps
16 


74259B-11.eps
17 


74259B-12.eps
18 


74259B-13.eps
19 


74259B-14.eps
20 


74259B-15.eps
21 


74259C.eps
22 

Mr. CHAFFETZ. The role of Congress is to protect and defend the 

United States Constitution and personal liberties provided to 

American citizens under the Fourth Amendment. Put simply, the 

government and law enforcement should not be able to track somebody indefinitely without their knowledge or consent or without obtaining a probable cause warrant from a judge. Just because it can 

be done doesn’t mean it necessarily should be done. 

With that in mind, I recently introduced the Geolocational Privacy and Surveillance Act. Companion legislation was also introduced in the United States Senate by Senator Ron Wyden of Oregon. I appreciate the bipartisan support of this bill, cosponsors in 

the Judiciary Committee include Chairman Sensenbrenner, Chairman Goodlatte, Chairman Coble, Representative Lofgren and 

Ranking Member Conyers. The bill creates a legal framework designed to give government agencies, commercial entities and private citizens clear guidelines for when and how geolocation information can be accessed and used. 

In Jones, the recent Supreme Court case on the issue, the court 

ruled unanimously that physically attaching a GPS device to a vehicle constituted the search under the Fourth Amendment. Most 

law enforcement agencies have responded by requiring their officers to obtain probable cause warrants before placing GPS devices 

on vehicles. However, the court stopped short of requiring a warrant for all geolocation information, including that obtained from 

other devices or methods such as smartphones or, for instance, the 

OnStar System. 

The Supreme Court has laid down the broad principle that location tracking without a warrant constitutes a search under the 

Fourth Amendment, it is now up to Congress to enact a comprehensive statute to fill in the details. In fact, Justice Alito specifically identified Congress appropriate place to resolve the difficult 

issues associated with the collision of new technologies and their 

impact on civil rights when he noted, ‘‘In circumstances involving 

dramatic technological change, the best solution to privacy concerns 

may be legislative. A legislative body is well situated to gauge 

changing public attitudes to draw detailed lines and to balance privacy and public safety in a comprehensive way.’’ 

I believe that Americans have a reasonable expectation of privacy. And I agree wholeheartedly with Justice Alito’s notion that 

it is truly the Congress that should deal with it. I applaud the 

Chairman for holding this hearing. I thank the witnesses for attending and for their thoughtful testimony, and I yield back the 

balance of my time. 

Mr. SENSENBRENNER. The Chair recognizes the gentleman from 

Virginia, Mr. Scott, for an opening statement. 

Mr. SCOTT. Thank you, Mr. Chairman. Today we meet to discuss 

the Geolocational Privacy and Surveillance Act, a bill intended to 

clarify the standards of government access to certain types of personal location information. With greater conveniences that technology affords us, we also have new challenges to our privacy 

rights because of the types of information that is generated about 

us, how it is stored and by whom it can be accessed. 

The Supreme Court’s 1967 decision, Katz v. The United States 

continues to direct our privacy jurisprudence. In that case, a man 

23 

calls from a pay phone booth, were recorded by device attached to 

the outside of the booth by the FBI. The court ruled that this 

eavesdropping was a search under the Fourth Amendment because 

it violated a man’s reasonable expectation of privacy. That standard should continue to guide us today. 

When you see something, when we go somewhere in public, you 

know that we may be seen by others, even if we do not want others 

to know where we are. The visual recognition by others is the risk 

that we take. What do not expect is a carrying of personal communication devices such as cell phones will be used by the government 

to track and record our every move. This is particularly the case 

of cell phone-based location information has become, in many cases, 

available and actually more accurate than GPS because of the proliferation of micro cells. 

We have laws to make accommodations between privacy rights 

and sometimes urgent need of law enforcement to investigate 

crimes. For example, Congress has drafted several statutes to restrict government access to the content of an electronic communication, but provides less stringent standards for accessing non content records, merely reflecting that a communication took place. 

The Electronic Communications Privacy Act was enacted in 1986, 

but it did not contemplate every possible technological advance and 

it does not provide clear guidance as to what steps the government 

must take in order to obtain location data from devices like cell 

phones and navigation systems in cars. 

This bill addresses this gap by requiring the government to show 

probable cause and get a warrant in order to obtain a historical 

and prospective data about the location of our citizens. The bill includes an exception for emergency situations. Given our expectations of privacy, this bill should be a good starting point for our discussion on this issue. So I thank the gentleman from Utah for his 

work on the issue. And Mr. Chairman, I yield back the balance of 

my time. 

Mr. SENSENBRENNER. Without objection, all Members’ opening 

statements will be put in the record at this point. It is now my 

pleasure to introduce today’s witnesses. John Ramsey is currently 

one of the national vice presidents of the Federal Law Enforcement 

Officers Association. And I right in calling it FLEOA? 

Mr. RAMSEY. Yes, sir. 

Mr. SENSENBRENNER. Okay. Mr. Ramsey was elected to this position in November of 2008, and serves as one of the ten elected 

board members representing 26,000 Federal law enforcement officers from nearly every Federal law enforcement agency. 

Mr. Ramsey also a member of FLEOA’S national legal committee 

and serves as the national legal liaison director and chapter president for Mississippi. Mr. Ramsey is employed by the U.S. Department of Veterans Affairs Office of Inspector General in Jackson, 

Mississippi as the resident agent in charge. He has been with the 

VA OIG since 2000. He received a bachelor of science in criminal 

justice from Georgia State University and his Master’s from George 

Washington University in forensics and criminology. 

Mr. Joseph Cassilly is active with the Maryland State Attorneys 

Association having held several offices including two terms as 

president of the Association. He is the past president of the NaVerDate Aug 31 2005 12:45 Sep 12, 2012 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\051712\74259.000 HJUD1 PsN: DOUGA
24 

tional District Attorney’s Association and is on the board of directors of NDAA. He was sworn in as assistant State’s Attorney in October 1977, and in 1982, he was elected State’s Attorney for Harford County, Maryland and has been reelected six times. He joined 

the U.S. Army in 19 and served with F company 75th Rangers, 

25th infantry division. He was awarded a combat infantry badge, 

Purple Heart and Army commendation medal. He received a Bachelor of arts in psychology from University of Arizona in 1974, and 

his JD from the University of Baltimore Law School in 1977. 

Edward Black has been president and CEO of the Computer and 

Communications Industry Association since 1995. He previously 

served for nearly a decade as CCIA’s vice president and general 

counsel. He is past chairman of the State Department’s Advisory 

Committee on International Communications and Information Policy and past president of the Washington International Trade Association and Foundation and chairman of the Pro Trade Group. He 

serves on the board of directors of the interoperability clearinghouse. 

After serving as legislative director for Representative Louis 

Stokes in the early 1970’s, Mr. Black served as congressional liaison for the State Department. He then served as chief of staff to 

Representative John LaFalce of New York before again returning 

to the executive branch as Deputy to the Assistant Secretary for 

Congressional affairs for the Secretary of Commerce. He subsequently practiced law in the private sector. He received his Bachelor of Arts degree from Muhlenberg College and his JD degree 

from the American University Washington College of Law. 

Catherine Crump is a staff attorney with the ACLU, Speech Privacy and Technology Project. She is a non residential fellow at the 

Stanford Center for Internet and Security. Prior to joining the 

ACLU, she clerked for the Honorable M. Margaret McKeown of the 

U.S. Court of Appeals for the Ninth Circuit. She received her undergraduate degree from Stanford in 2000. Served as a Fulbright 

Fellow from 2000 to 2001, and received her JD degree from Stanford Law School in 2004. 

The witnesses’ written statements will be entered into the record 

in their entirety. I ask you to summarize your testimony in 5 minutes or less. To help you stay within the time limit you have got 

the red, yellow and green lights in front of you. The Chair has a 

reputation for banging the gavel when the red light goes on, and 

I now recognize Mr. Ramsey. 

TESTIMONY OF JOHN R. RAMSEY, NATIONAL VICE PRESIDENT, 

FEDERAL LAW ENFORCEMENT OFFICERS ASSOCIATION 

Mr. RAMSEY. Thank you, Chairman Sensenbrenner, Ranking 

Member Scott and other distinguished Members of the Committee. 

Thank you for the opportunity to testify today. On behalf of the 

26,000 members of FLEOA, I am voicing our concerns with this 

proposed bill. The proposed legislation will impact all Federal law 

enforcement. Geolocational surveillance is an invaluable tool to 

combat domestic and international crime and terrorism in addition 

to rendering aid in exigent circumstances. As the proposed legislation stands, geolocational information has been given an overly 

broad definition and application. As written one could easily interVerDate Aug 31 2005 12:45 Sep 12, 2012 Jkt 000000 PO 00000 Frm 00028 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\051712\74259.000 HJUD1 PsN: DOUGA
25 

pret PIN registers, OnStar and even E-ZPasses as geolocational information. 

These are not witch hunts that law enforcement officers are involved in. Information obtained with these court orders provides 

law enforcement with historical data as well as possible location information which becomes important when determine weather the 

need rises to the level of a court order or a warrant. 

While conducting everyday ongoing criminal investigations, court 

orders issued to communication companies may provide law enforcement with geolocational information. This information can be 

critical when it comes to potentially unlocking evidence that may 

lead to the apprehension of a murderer or rapist, or even saving 

lives. 

If law enforcement wants to know the content of a target’s conversation, the most protected type of communication, we know that 

current Federal law and supreme court rulings require the 

issuance of a warrant as in the case with government-owned locational devices and Title III intercepts. The difference in this situation is that the government does not own nor are they attaching 

the locational device to a person. 

Currently with a court order, law enforcement may request the 

possible location of a cellular device from a communication company via their cell tower or cell site information, which enables law 

enforcement to potentially infer a general area where a particular 

call originated, not necessarily a precise location. Cell site information only gives an approximate location versus a precise or exact 

location like GPS devices. Cell phones are not government-owned 

locational beacons, the government did not attach the GPS device 

to someone’s personal cell phone unlike government-owned GPS devices attached to vehicles. 

Seconds count when lives are at risk. Law enforcement should 

not be further hindered during their investigation of time sensitive 

cases that may involve the threat of serious bodily harm or death 

by imposing additional legal hurdles that may jeopardize the lives 

of countless innocent Americans. The Supreme Court did not extend Jones decision to cell phones, law enforcement is not seeking 

the content of conversations, nor are we trying to step on someone’s 

expectation of privacy. We are simply looking at corporate records 

just like financial records to which a legally-authorized subpoena 

or court order would suffice. 

While our membership respects the constitutional rights of all 

citizens, we do not want to see the United States adopt unnecessary legislation. If our country’s laws allow for the disclosure of corporate records pursuant to legally authorized court orders or subpoenas, the same standard should apply to all corporate records to 

include communication companies. 

Geolocation communication information should be treated no differently. We hope your Committee understands our concerns with 

the proposed legislation and respects our position. I would like to 

thank the Committee Members for your continued support of law 

enforcement and an opportunity to testify today. 

Mr. SENSENBRENNER. Thank you. 

[The prepared statement of Mr. Ramsey follows:] 

26 

Prepared Statement of John R. Ramsey, National Vice President, 

Federal Law Enforcement Officers Association 

Chairman Sensenbrenner, Vice-Chairman Gohmert, and distinguished Members 

of the Committee: 

I would like to thank you for the opportunity to testify today. I appear before you 

today in my official capacity as the National Vice President of the Federal Law Enforcement Officers Association (FLEOA). On behalf of the 26,000 members of the 

FLEOA, I am voicing our concerns with H.R. 2168. The proposed legislation will impact all Federal law enforcement. Geolocational surveillance is an invaluable tool to 

combat domestic and international crime and terrorism, in addition to rendering 

aide in exigent circumstances, such as child exploitation cases. 

Geolocational communication services focuses on historical information and potential real-time information. This issue should not be confused with real-time conversations and/or Title III intercepts. However, as the proposed legislation stands, 

geolocational information has been given an overly broad definition and application. 

As written, one could easily interpret pen registers, On-Star, and EZ–Passes as 

‘‘geolocational information.’’ What we are focused on in this situation is wireless 

communication information currently obtained through a court order signed by a 

United States Judge. These are not witch hunts as some may allude to. Information 

obtained with these court orders provides law enforcement with historical data, as 

well as possible location information, which becomes important when determining 

whether the need rises to the level of a court order or a warrant. 

While conducting everyday on-going criminal investigations, court orders issued to 

communication companies may provide law enforcement with geolocation information. This information can be critical when it comes to potentially unlocking the evidence that may lead to the apprehension of a murderer or rapist. If law enforcement 

wants to know the ‘‘content’’ of a target’s conversation, the most protected type of 

communication, we know that current Federal law and Supreme Court rulings require the issuance of a warrant, as in the case with Government-owned location devices and Title III intercepts. The difference in this situation is that the Government does not own nor are they attaching the locational device to a person. With 

the current exceptions built into the proposed legislation, at least law enforcement 

has some leeway with regards to abductions and other exigent circumstances. 

In order to better understand the intricacies of this issue, we need to take a closer 

look at ‘‘geolocational information,’’ With a court order, law enforcement may have 

the opportunity at seeing who a killer or rapist called, in the past, by requesting 

historical data/records from a communication company. With a court order, pen registers may provide law enforcement with phone numbers, including the area codes, 

which may identify where a call was placed from, such as a specific state and/or 

city, similar to cell-tower information. With a court order, law enforcement may be 

able to see where the killer or rapist bought gas or used an ATM, by requesting 

historical information from a financial institution. Currently, with a court order, law 

enforcement may request the possible location of a cellular device from a communication company via cell-tower or cell-site information, which enables law enforcement to potentially infer a general area where a particular call originated, not a 

precise location. Cell-site information only gives an approximate location at best, 

versus a precise or exact location like GPS devices. Cell phones are not Governmentowned locational beacons. The Government did not attach a GPS device to someone’s personal cellular phone, unlike Government-owned GPS devices attached to 

vehicles. I would like to stress that all of these scenarios, information gathered does 

not contain the ‘‘content’’ of a conversation. 

Law enforcement is permitted to gather information using court orders, a legal 

document or proclamation signed by a United States Judge in which the court orders a person to perform a specific act, or in some circumstances, prohibits them 

from performing a specific act. What is the next step? Are we going to do away with 

grand jury subpoenas and move to the issuance of search warrants for companies 

to disclose corporate and financial records? Law enforcement can request a subpoena and obtain employment records, medical records, and other personal and private information of individuals that are targets of criminal investigations. Who are 

we protecting with this legislation? The innocent or the criminals? FLEOA takes the 

position that the innocent were and are not targets of criminal investigations. 

FLEOA is also not suggesting that criminals, or those suspected of criminal wrong 

doing, have less constitutional rights than a law abiding citizen. But do we really 

want to slow down the apprehension of murderers and rapists so they can build 

their trophy wall by increasing the amount of legal documents necessary to gather 

information? Law enforcement should not be further hindered during their investigation of time sensitive cases that involve the threat of serious bodily harm or 

27 

death by imposing additional legal hurdles may very well jeopardize the lives of 

countless innocent Americans. 

This legislation is a pale attempt to build on the 2012 Jones decision rendered 

by the U.S. Supreme Court. The Supreme Court did not extend the Jones decision 

to cellular phones. Law enforcement is not seeking the ‘‘content’’ of a conversation, 

nor are we trying to step on someone’s expectation of privacy. We are simply looking 

at corporate records, just like financial records, to which a legally authorized subpoena or court order will suffice. When a person places a phone call, the ‘‘content’’ 

of the call is protected, not the parking lot, sidewalk or location from which it was 

placed. The proposed legislation would, under Rule 41 of the Federal Rules of Criminal Procedure, make ‘‘content’’ and ‘‘geolocational information,’’ such as cell-site and 

EZ–Pass, rise to the same standard. FLEOA would opine that these two types of 

information do not enjoy the same level of expectation of privacy. 

While our membership respects the constitutional rights of all citizens, we do not 

want to see the United States adopt unnecessary legislation. If our country’s laws 

allow for the disclosure of corporate records pursuant to legally authorized court orders or subpoenas, the same standard should apply to all corporate records, to include communication companies. Geolocation communication information/records 

should be treated no differently. We hope your committee understands FLEOA’s 

concern with the proposed legislation and respects our position. 

I would like to thank the Committee Members for your continued support of law 

enforcement and its mission and for this opportunity to testify today. I will be happy 

to answer any questions that you may have at this time. 

Mr. SENSENBRENNER. Mr. Cassilly. 

TESTIMONY OF JOSEPH I. CASSILLY, PAST-PRESIDENT, 

NATIONAL DISTRICT ATTORNEYS ASSOCIATION 

Mr. CASSILLY. Thank you, Chairman Sensenbrenner Ranking 

Member Scott, Members of the Committee. The National District 

Attorney’s Association is the oldest and largest organization representing State and local prosecutors in the United States. 

Obtaining geolocation information is not a search, but even if it 

were a search, obtaining a warrant is not required for a lawful 

search when the circumstances of getting the warrant would be unreasonable or frustrate the lawful purposes of the government. 

Thus, there are legal searches that are recognized by the court that 

do not require probable cause. NDAA has serious concerns that 

H.R. 2168 would unreasonably frustrate State or local law enforcement’s ability to effectively protect the citizens we serve. 

NDAA believes it is necessary to distinguish between historical 

data compiled from cell tower hits and real-time GPS ping information. The overwhelming majority request for geolocation data in my 

jurisdiction are for historical data. These requests are often made 

to confirm or rebut information which does not meet the probable 

cause standard. For example, in a gang shooting in my jurisdiction, 

an anonymous caller who states they fear gang retaliation gives 

the police the identity of two gang members who committed the 

murder; the police get information about the suspects’ cell phones 

from prior arrest reports. The cell site historical information for the 

time of the killing shows that those two cell phones were hitting 

off the same tower at the same time in the area of the murder. 

Even without this information, the police do not have probable 

cause to arrest, but they have at least allowed the ability to focus 

their investigation. 

Gangs are domestic terrorists. Denying law enforcement the ability to use this critical tool is to decide to refuse to protect those 

communities. Section 2602(d) of the law, exception for consent, alVerDate Aug 31 2005 12:45 Sep 12, 2012 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\051712\74259.000 HJUD1 PsN: DOUGA
28 

lows for a parent or guardian to consent to a child’s device location, 

but is silent as to whether such consent is available with those 

with mental handicaps, developmental disability, dementia or who 

may be on medication. And further, if a child is reported missing 

by their peers but the parents can not be located, do the police 

waste precious seconds hunting for the parents or use those seconds to hunt for the child? 

The bill is confusing, 2602(f), exception for emergency information, has a different standard for law enforcement officer to access 

information when—than does 2604 emergency situation exception, 

including the fact that one requires a subsequent order while the 

other does not. The emergency exceptions are vague on what information can be legally obtained. 

Do these exceptions allow, for example, in a kidnapping case for 

law enforcement attract the kidnappers’ phone or only the victim’s 

phone? It is important to note that the ability to gather GPS information lasts only so long as the battery continues to power the device. Any unreasonable delay may result in a bad dead battery and 

frustrate the effort to use geolocation. 

Given that the proposed law subjects electronic communication 

service providers to possible criminal and civil liability if they cooperate with an officer, the laws should provide a course of action 

that would enable rapid transfer when needed, and possibility penalties for service providers who are intentionally slow to respond in 

providing critical law enforcement information. 

State statutes and court rules impose additional burdens on the 

use of warrants that may be unintended or unforeseen by this 

Committee. For example, in Maryland, law enforcement officers are 

required to deliver a copy of the warrants to the person being 

searched at the execution of the warrant. Is the person being 

searched the person carrying the phone? If so, we would have to 

locate them before we locate them in order to serve the warrant 

and give them the opportunity to turn off the device and flee. 

Maryland law enforcement are also required to deliver the statement of probable cause to the person searched at least 60 days 

after the warrant is issued. Generally these warrants are used at 

the end of an investigation, but often this information is needed at 

the beginning of the investigation. 

These are some examples of the unintended consequences from 

only one State, and imagine them compounded them in 50 States. 

We assert that this legislation is a solution in search of a problem, 

and is the true defenders of the public freedoms and rights, America’s prosecutors believe that the current system of police discretion 

and judicial oversight is working. For if it were not, the evidence 

would be found in court cases challenging the conduct of the police. 

Thank you for the opportunity to testify before the Committee on 

this important legislation. 

Mr. SENSENBRENNER. Thank you. 

[The prepared statement of Mr. Cassilly follows:] 

29 


JIC-1.eps
30 


JIC-2.eps
31 


JIC-3.eps
32 


JIC-4.eps
33 


JIC-5.eps
34 


JIC-6.eps
35 


JIC-7.eps
36 

Mr. SENSENBRENNER. Mr. Black. 

TESTIMONY OF EDWARD J. BLACK, PRESIDENT AND CEO, 

COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION 

Mr. BLACK. Mr. Chairman, Members of the Committee, thank 

you for the opportunity to testify today on the GPS Act. CCIA is 

an international trade association dedicated to innovation and dynamic open competition with members in many technology sectors. 

Our members employ half a million workers with annual revenues 

of a quarter of a trillion dollars. CCIA is also a founding member 

of the Digital Due Process coalition formed to update ECPA. 

The GPS Act addresses one key coalition recommendation for updating ECPA. Extending Fourth Amendment protections to reflect 

the realities of the digital age is an important goal for our industry. 

Regardless of motivation, the new found—the recent Supreme 

Court decision in Jones called into question whether pervasive new 

technology received Fourth Amendment protection. Jones did not 

reach the question of protection for personal location information 

generated by mobile devices. Despite unanimous discomfort among 

the judges over warrantless tracking of individuals, Jones failed to 

include devices owned by over 95 percent of the U.S. population. 

Thus, authorities may now choose to replace physical tracking devices with pervasive and unchecked monitoring of our whereabouts 

via either private cell phone networks or GPS information built 

into our phones. 

Representative Goodlatte and Chaffetz’s GPS Act is an important 

step toward closing the 21st century loophole in ECPA. Requiring 

probable cause to justify intrusive surveillance may make the life 

of law enforcement agents slightly more difficult, but that was the 

explicit purpose of our Founders when they expressly limited the 

government’s powers under the Fourth Amendment. 

Mobile technologies are transforming and benefiting our economy. The mobile industry contributed 195 billion to our GDP, and 

3.8 million jobs in 2011 alone. Trust is essential to this dynamic 

part of our economy, particularly where data is concerned, this is 

why the GPS Act is so vital. 

Your location privacy says a great deal about you. It says where 

you work and sleep, your religious preferences, doctor visits and political affiliations. All are personal information with a legitimate 

claim to privacy. Current warrant protection against location information does not clearly apply to all GPS or cell site information. 

There is uncertainty in the business community about what the 

law is, for each type of data and what privacy assurances can be 

made to users. This uncertainty itself hampers innovation and the 

growth of companies and the Internet platform and cloud services 

sectors. 

Problems of trust are exacerbated because there is rarely consent 

from the cell phone user when the government demands information from companies. In this nascent marketplace, we need a clarifying law requiring a warrant before law enforcement may demand 

personal location information from the electronic service providers. 

The GPS Act creates a uniform warrant standard for government 

demands of location data. It gives assurances to all users that the 

location information will be reasonably protected under the law. 

37 

This is vitally important as many new applications such as Yelp 

and Four Square incorporate real-time user information. This bill 

does not make this information off limits to government entities 

which would simply need to obtain a warrant, justas it must be 

done to access many other types of evidence under law and the 

Constitution. 

This bill also recognizes that there are circumstances in which 

obtaining a warrant may be too time consuming or inappropriate. 

This bill would not keep law enforcement from doing its job. 

In summary, we believe that the changes made by the GPS Act 

are vital to the privacy and civil liberties of Americans, and for the 

positive effects it would have on an exciting and booming sector of 

our economy. Thank you for the opportunity to testify today. I look 

forward to your questions. 

Mr. SENSENBRENNER. Thank you, Mr. Black. 

[The prepared statement of Mr. Black follows:] 

38 


Black-1.eps
39 


Black-2.eps
40 


Black-3.eps
41 


Black-4.eps
42 


Black-5.eps
43 


Black-6.eps
44 


Black-7.eps
45 


Black-8.eps
46 


Black-9.eps
47 

Mr. SENSENBRENNER. Ms. Crump. 

TESTIMONY OF CATHERINE CRUMP, STAFF ATTORNEY, 

AMERICAN CIVIL LIBERTIES UNION (ACLU) 

Ms. CRUMP. Good morning, Chairman Sensenbrenner, Ranking 

Member Scott, and Members of the Subcommittee. Thank you for 

the opportunity to testify on behalf of the American Civil Liberties 

Union. The ACLU supports passage of H.R. 2168, the Geolocational 

Privacy and Surveillance Act. Requiring law enforcement agents to 

obtain a warrant based upon probable cause before obtaining 

geolocational information would allow legitimate law enforcement 

investigations to proceed, while ensuring that innocent Americans 

do not have their privacy intruded upon. 

As Congressman Chaffetz has already pointed out, passing the 

GPS Act would fulfill Congress’s duty to ensure that the safeguards 

provided by the Fourth Amendment of our Constitution are respected. 

Geolocational information implicates strong privacy interest because tracking people’s movements makes it possible to learn a 

great deal of personal and private information about them. As Justice Alito explained, society’s expectation has been that law enforcement agents and others would not and indeed in the name simply 

could not secretly monitor and catalogue every single movement of 

an individual’s car for a very long period. 

The D.C. Circuit Court of Appeals expanded upon this point. A 

person who knows all of another’s movements 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 groups and not just one 

such facts, but all such facts. 

Attaching a GPS device to a vehicle is one way of obtaining location information. In the recent Supreme Court case United States 

v. Jones, the police tracked a defendant’s movement continuously 

for 28 days with an accuracy of 50 to 100 feet. While some cell 

phones can also be tracked using GPS, all cell phone generate a 

continuous stream of location information because they register 

their location with cell phone networks several times a minute. 

Due to the proliferation of cell phone towers and advances in technology, it is the case that, as Professor Matt Blaze has pointed out 

to Congress in previous testimony and again today, it is becoming 

increasingly precise, and in some cases, cell site information is approaching the precision of GPS. 

While the Supreme Court held in Jones that affixing a GPS device to monitor the movements of a car implicates the Fourth 

Amendment, it did not reach the question of whether that is a 

search that requires a warrant based upon probable cause. It will 

likely take years for this question to reach the Supreme Court once 

again. Congress should not stand by while law enforcement faces 

unclear standards for geolocation tracking and innocent Americans’ 

privacy is invaded. 

The warrant and probable cause requirement are essential components of the Fourth Amendment. The probable cause requirement is not high. Law enforcement merely has to have a good reason to believe that a search will turn up evidence of wrongdoing. 

48 

These requirements are especially important today given the tremendous technological developments of the past 10 years. Moreover, major telecommunication companies and Internet companies 

support a warrant and probable cause requirement. 

Last August in an unprecedented effort to penetrate the secrecy 

surrounding cell phone tracking, 35 ACLU affiliates in 32 States 

filed over 380 Public Records Act requests to understand the policies procedures and practices of local law enforcement agencies for 

tracking cell phones. What we learned was disturbing. While over 

200 of the agencies—while virtually all of the 200 agencies that responded indicated that they track cell phones, only a tiny handful 

indicated they had obtained warrants to do so. And many only comply with a lesser standard, such as a subpoena. The law governing 

location tracking policy should be clear, uniform, and protective of 

privacy, but unfortunately it is in a state of chaos with agencies in 

different towns following different rules, and in some cases, no 

clear rules at all. 

The ACLU supports passage of the GPS Act because it would ensure that law enforcement agents obtain a warrant based upon 

probable cause in order to track—obtain geolocational information. 

The Act also includes perfectly reasonable and limited exceptions. 

Under the Act, for example, the police would be able to obtain location information when they had a good reason to believe that it 

would turn up evidence of wrongdoing, or where they have a good 

faith to believe that someone’s life or safety was in jeopardy. 

We urge the Committee to support H.R. 2168 and report it favorably from the Committee. Thank you. 

[The prepared statement of Ms. Crump follows:] 

49 


Crump-1.eps
50 


Crump-2.eps
51 


Crump-3.eps
52 


Crump-4.eps
53 


Crump-5.eps
54 


Crump-6.eps
55 


Crump-7.eps
56 


Crump-8.eps
57 


Crump-9.eps
58 


Crump-10.eps
59 


Crump-11.eps
60 


Crump-12.eps
61 

Mr. SENSENBRENNER. Thank you very much, and I want to thank 

all of the witnesses for making their statements within the time 

limit, that is not what usually happens around here. The Chair will 

defer asking questions and will begin by recognizing the author of 

this bill, the gentleman from Utah, Mr. Chaffetz. 

Mr. CHAFFETZ. I thank you Mr. Chairman. And thank you to all 

the witnesses, I appreciate your perspective and the passion you 

bring behind those perspectives. I find it fascinating that there are 

now more wireless accounts in this country than there are people 

in this country. To say that the technology is not pervasive would 

be inaccurate, it is very pervasive and can be helpful in many 

ways, but it can also be confusing as we try to find and test the 

limits of where privacy starts, where it ends, and what law enforcement can do about this. 

I also want to note, this bill is not intended to be solely focused 

on just law enforcement. What I am also worried about is somebody tracking and following somebody else in a surreptitious manner. The idea that somebody could take a spurned lover and put 

a GPS device or figure out how to track that person surreptitiously 

needs clarification of law. So this bill is not just about law enforcement, that has been the discussion thus far, but it is also about 

how do we as individuals track and follow other individuals without our own permission, and I want to make that clear. 

I also want to highlight a comment, actually, from Jason 

Weinstein, a Department of Justice deputy assistant Attorney General who was called on Congress to clarify a law in this area, 

‘‘There really is no fairness when the law applies differently to different people depending on which courtroom you are standing in.’’ 

In addition, the top FBI lawyer, Andrew Weissmann, has stated, 

‘‘FBI agents in the field need clear rules.’’ And it is telling agents 

who are in doubt, ‘‘Obtain a warrant to protect your investigation.’’ 

I know through the work of the ACLU that the police in Lincoln, 

Nebraska obtained GPS location data on telephones without demonstrating probable cause, but in close proximity in Wichita, Kansas, they do demonstrate probable cause in order to obtain this information. And my understanding is since at least since 2007, the 

Department of Justice has recommended that U.S. attorneys obtain 

a warrant based on probable cause prior to engaging in these forms 

of cell phone tracking. 

I guess my initial question here, and I also highlight a quote I 

used earlier from Justice Alito who was quoted as saying a legislative body is well-situated to gauge changing of public attitudes, to 

draw detailed lines and to balance privacy and public safety in a 

comprehensive way. I don’t believe we can just leave this to the 

court and hope that 5 years from now, something percolates up to 

the top of the food chain. 

I think that Congress has a proactive responsibility, and I am 

pleasantly surprised by the support we have from industry, they 

don’t want people to be afraid of their mobile phones and they don’t 

want people to be afraid of their automobiles and whatnot. 

My question, first, to Mr. Ramsey here, you would have to agree, 

don’t you, that there is great inconsistency and confusion, not only 

in light of just the Jones case, but from law enforcement agencies, 

62 

from prosecutors, where are the lines? Doesn’t this need clarification one way or the other? 

Mr. RAMSEY. FLEOA would agree that there does need to be clarification, but we feel that the way it is written is overly broad and 

we need to narrow that focus down to where it doesn’t hinder law 

enforcement. As you said, this bill isn’t targeting law enforcement; 

however, there are parts of it that might, for example, prevent apprehension of suspects. 

Mr. CHAFFETZ. Understood, and I appreciate it. The point I guess 

I am trying to make, the need for legislation to move on this. Mr. 

Cassilly, would you agree with that? You actually, in your testimony, argued that the court should deal with this and that Congress shouldn’t do. 

Mr. CASSILLY. No, I didn’t say that. What I said was that you 

can’t show any evidence from court cases out there that seems to 

indicate a pervasive abuse by law enforcement of this ability. I 

think there are a couple of concerns. First of all, I think probable 

cause is a high standard, okay? My real case—— 

Mr. CHAFFETZ. My time is so short, I am already on to the yellow 

light here. There is a need to be consistent, you would agree with 

that? And would you also agree that there is great inconsistency? 

Even between Lincoln, Nebraska and Wichita, Kansas, between different courts and between what the FBI is saying, and what the 

Department of Justice is saying, there is great uncertainty and 

there is not a point of clarification thus far, correct? 

Mr. CASSILLY. I agree that we need to come up with some general uniform rules, just in order to help the industry be able to respond and know whether—— 

Mr. CHAFFETZ. But you don’t think law enforcement and the 

prosecutors and the courts needs some clarification as well? This 

is a 9-to-nothing case in the Jones case. 

Mr. CASSILLY. I think we do, but I don’t think we need to go as 

far as this bill goes. I think this bill would seriously prevent us 

from lawfully acquiring—— 

Mr. CHAFFETZ. So you may disagree with the standard, but you 

would agree that there is a need for a standard, correct? 

Mr. CASSILLY. Yes. 

Mr. CHAFFETZ. With that, I yield back, Mr. Chairman. 

Mr. SENSENBRENNER. The witness should answer the question. 

Do you agree there should be a standard? 

Mr. CASSILLY. I think there should be a standard. I don’t think 

that the probable cause standard as set out in this bill is appropriate. There was a hypothetical, the actual case I gave you regarding the gang shooting, and the information we got in the gang 

shooting, that doesn’t rise to probable cause standard. That is an 

anonymous informant, which everybody who deals with probable 

cause will know that that is not enough to allow us to proceed to 

get a warrant with an anonymous, untested informant. But it 

would be enough to allow us to establish a reasonable basis under 

other court decisions to request that sort of information. 

Mr. SENSENBRENNER. Thank you. The gentleman from Virginia, 

Mr. Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. Mr. Black, if the police 

had five unsolved rapes using what essentially looks like the same 

63 

MO, and wanted cell phone information to ascertain if one cell 

phone had been at each of the sites at the appropriate time, would 

that be something that would be—should be allowed? And follow 

up on that, if there is a robbery on Times Square on New Year’s 

Eve, would getting the cell phone information from everyone on 

Times Square that night also be available, or is there a difference? 

Mr. BLACK. Maybe I will start with the second provision, I think 

that identifies the fact that when we are asking for information, location information, we are not asking a question of who is not 

there, we are asking a question where are people. So you are finding out a lot of information which, in some cases, is considered very 

private by the person who is being the subject of inquiry. And we 

do feel that a probable cause standard is not that high a standard, 

but it is an important—it a standard higher enough to protect some 

vital privacy rights. 

In any specific example we can come up with, we would like the 

exceptions, scrutinized and I think worked with. 

Mr. SCOTT. In the case of five different sites, five different times, 

is that targeted enough to satisfy probable cause? 

Mr. BLACK. If there is a robbery in Time Square in a certain time 

frame, and you want to find everyone who was in Times Square at 

that point, I guess I would probably have some problem with that. 

Mr. SCOTT. What about the five different rapes, five different 

times where it is unlikely that any more than one person would 

satisfy that search? 

Mr. BLACK. I think there are adequate tools. I do not think that 

the information of that—that sounds pretty persuasive to me. We 

have legal precedents and maybe some other who has spent some 

time in criminal law. I think there will always be borderline cases. 

By and large, I really think the vast majority of law enforcement 

needs are not super time sensitive and can be met by a probable 

cause standard. What you are suggesting is a state of facts that 

make it pretty logical to want to get that information. To me, that 

gets close to probable cause. 

Mr. SCOTT. Okay. Ms. Crump, should it make a difference whether or not the device is attached or the search is done without a 

physical attachment, say, to a car? Should that make a difference? 

Ms. CRUMP. Thank you for the question. No, I don’t believe that 

should make a difference. I think the Supreme Court decision, Justice Alito stated it well when he pinpointed the intrusion that occurs through tracking is the monitoring of someone’s movements, 

particularly over an extended period of time. You can accomplish 

that by attaching a GPS device to someone’s car, but you can obtain the same type of intimate private information by tracking 

someone through their cell phone. And because the relevant factor 

is a degree of privacy invasion, the physical attachment of the device is not the operative thing here. 

Mr. SCOTT. Now people have used the term ‘‘warrant with probable cause.’’ Is there such a thing as a ‘‘warrant without probable 

cause’’? 

Ms. CRUMP. Not generally, no. 

Mr. SCOTT. Okay. Should—if you have a warrant, should the person being surveilled be notified the same way they are notified in 

any other warrant? 

64 

Ms. CRUMP. I think it depends on the context. In general, there 

are exception for notification when warrants are served. So for example, if it would interfere with an ongoing law enforcement investigation. I think that one could certainly make an argument that 

if you were tracking someone for the purposes of a criminal investigation and notifying them of the tracking would interfere with 

that investigation, that there is a strong argument to be made that 

as in, for example, Historic Communications Act, there would be a 

good reason to have a provision that upon a good cause showing 

you would be exempt of that requirement. I think you can accommodate the privacy interest here while also making reasonable accommodations such as that for compelling law enforcement interests. 

Mr. SCOTT. Does the bill have an exemption for searches done 

under FISA? 

Ms. CRUMP. Yes, the bill has that exemption which would allow 

for important national security investigations to go forward. That 

is one a number of reasonable and limited exemptions including for 

consent, for monitoring minor children when their parents wish it 

to be done, and for various emergency circumstances, such as, for 

example, when someone is in danger of their life or serious bodily 

harm. 

Mr. SENSENBRENNER. The other gentleman from Virginia, Mr. 

Goodlatte. 

Mr. GOODLATTE. Thank you, Mr. Chairman. I very much appreciate your holding this hearing on legislation and this important 

evolving technology. And I want to thank and commend the gentleman from Utah, Mr. Chaffetz, for introducing the legislation 

which I am pleased to cosponsor. 

I would like to start by asking all for of you, and I will start with 

the representatives of law enforcement first. In examining practices 

of State and local law enforcement, what has the experience been 

in those jurisdictions which require a probable cause warrant 

standard for the attachment of these devices? 

Mr. RAMSEY. I would probably have to defer to Mr. Cassilly here 

on the State and local law enforcement aspect of that nature. 

Mr. CASSILLY. I am sorry, Congressman, I can’t answer that because I am not aware of—other than until I heard about Wichita, 

I am not aware of a jurisdiction that did—does require probable 

cause for access. Most of the jurisdictions that I am aware of use 

a reasonable basis standard. 

Mr. GOODLATTE. Mr. Black or Ms. Crump. 

Mr. BLACK. Well, we don’t collect that information on law enforcement, but I can tell you that a warrant clearly provides a clear 

message that a private sector company can feel much more confident responding to without running the risk of violating their customers’ rights. It is a clear legal standard that response to that 

warrant has been established. I think it provides a level of protection to the private sector as well as for the customer and citizen. 

Mr. GOODLATTE. Ms. Crump, maybe you know of some jurisdictions that impose that standard? 

Ms. CRUMP. Thank you for the question. When we conducted our 

35—our 32-State survey, we uncovered a small number of jurisdictions that do require a warrant based on probable cause to track 

65 

even cell phones. So, for example, the County of Hawaii, Wichita 

and Lexington, Kentucky all reported to us that they require a 

warrant based on probable cause. I do not believe that those jurisdictions would willfully put their citizens in danger in order to impose this requirement. I think it is a more reasonable conclusion 

to believe that they can accommodate legitimate law enforcement 

interests while also accommodating the warrant requirement, and 

that is a reason the requirement set out in the GPS Act are reasonable ones. 

Mr. GOODLATTE. Although the court concluded that the government’s action in Jones was a search, none expressly required that 

police get a warrant in future GPS tracking cases. The government 

effectively forfeited that argument. Further, there is no clear indication of the level of suspicion, probable cause, reasonable suspicion or something less that is required to attach a GPS unit and 

monitor the target’s movement. 

So let me ask you each of you what level of suspicion, probable 

cause, reasonable suspicion or something less should be required to 

attach a GPS unit and monitor a target’s movements or monitor a 

target via a cell phone. We will start with you, Mr. Ramsey. 

Mr. RAMSEY. The way I understand the question is you are asking for at what level? 

Mr. GOODLATTE. Finish the work the court, they punt it over to 

us and help us find the best way to set a standard that protects 

the privacy rights of individuals and particular innocent citizens. 

Our bill, as you know, requires probable cause as a standard, but 

if you are troubled by that, make a case for another standard. 

Mr. RAMSEY. A lot of times these geolocational devices are used 

as building evidence, it is the building blocks in some of these investigations, working up to a probable cause warrant for an arrest 

of an individual. So if you start at the building block level, you are 

actually near the reasonable suspicion level. 

Mr. GOODLATTE. I am running out of time so I am going to jump 

over to Ms. Crump, too, and if we have time, we will come back 

to Mr. Cassilly. 

Ms. CRUMP. In our view the reasonable suspicion requirement is 

too low. The warrant requirement—the probable cause requirement 

is the basic default of under our constitutional system when there 

is a search. Law enforcement often mentions that it would be useful to track GPS and develop probable cause. However, there are 

a wide range of useful law enforcement techniques that law enforcement is not allowed to conduct without probable cause because 

they are simply too invasive. It would surely be useful for law enforcement agents to be able to search someone’s phone without having to get a warrant. But we don’t allow that under our system because we recognize that that is a grave intrusion. 

When you talk about the type of information that is available 

through GPS tracking, for instance, being able to tell where someone gets medical treatment or whether they are an unfaithful husband, or who their friends and associates are. That is similarly sensitive and should be similarly protected. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

Mr. SENSENBRENNER. The gentleman’s time has expired. The 

gentleman from Colorado, Mr. Polis. 

66 

Mr. POLIS. Thank you for holding this hearing, Mr. Chairman. I 

was considering joining as cosponsor of this bill, and based on what 

I am hearing today, I plan on doing so after this hearing. It has 

been very informative and appreciate it. 

One question I had, and am not sure who can help me on the 

panel is how the process works with regard to identity list suspects, or John Does or people that, of course, and I would think if 

somebody is a serious criminal, they would have no identity attached to their cell phone, it would simply be an anonymous cell 

phone. Is there a procedure under law enforcement, and perhaps 

Mr. Cassilly or Mr. Ramsey would know that allows for a warrant 

for a John Doe in terms of following them on GPS or tracking their 

cell phone. 

Mr. CASSILLY. Often we do get phone numbers. For example, if 

a victim called and lured to a specific location and the victim has 

the suspect’s phone number on their phone, we would do a petition 

check. We use court order, so we would do a petition for a court 

order, and cite the cell phone, the number, information on that specific number. 

Mr. POLIS. This bill would not impact that process; is that correct? 

Mr. CASSILLY. It would if it requires a probable cause warrant. 

Mr. POLIS. Well, it would insofar as it does it the same way if 

you have their identity, but it doesn’t do it separately. There would 

still be a way of doing it based on the cell phone number with probable cause. 

I tend to agree with what Ms. Crump said, if you are talking 

about somebody’s home, somebody’s private conversations and 

where they are, these are very intimate matters and deserve all of 

our privacy protections. And obviously, we are focusing a lot on the 

violation of privacy for criminal investigation side, but I want to 

open this up a little bit about some of the positive applications 

from a consumer perspective with regard to GPS, and some of the 

potential lifesaving technologies. And I want to ask Mr. Black 

whether he thinks this bill will in any way stand in the way of lifesaving services or ambulances or other fire-reduction services that 

are going after people who are on cell phones and have GPS. Does 

this interfere with some of the positive side of this at all? 

Mr. BLACK. Thank you for the question. I think, to the extent 

that lifesaving situations involve maybe law enforcement as well, 

clearly the exceptions, I think, are sufficient to cover those circumstances. I would suggest that people value their privacy enough 

that there will be times if, in fact, easy access to their location information transpires, turning off your phone becomes a customer 

consumer reaction which we don’t want. We don’t want people feeling they don’t want to be followed so they are going to start turning off their phones, and then get in an accident or critical situation and that is not available. 

So I think given a degree of security and trust that you will not 

be casually surveilled is actually helpful in making sure people use 

all the benefits of their cell phone, including their location identity 

information. 

Mr. POLIS. So people would be more likely to keep their cell 

phones during potential emergency situations if they have privacy 

67 

assurances there as well. And I assume many of the privacy specifics can be dealt with in user agreements with cell phone providers as well. Many people may choose to, in fact, allow for emergency purposes, their provider to know where they are, they might 

have some kind of biometric feedback if they need their heart rate 

monitored and ascribe to privacy to that. And again, I would think, 

in general, people are more likely to do these kinds of lifesaving activities if they are assured that this information will not be used 

for ulterior reasons or by ‘‘the government’’ or by anybody else. It 

would just be a private arrangement with their medical care provider. 

And again, there is tremendous promise of the biometric feedback of saving lives, whether it is simply monitoring insulin level 

or it is heart rate or a number of other conditions. And to the extent we can increase confidence in these by reassuring privacy, I 

think we can save lives through this law. So I plan on joining as 

a cosponsor and I thank the Chair for the hearing and I thank the 

witnesses for coming forward. 

Mr. SENSENBRENNER. The gentleman’s time has expired. The 

gentleman from South Carolina, Mr. Gowdy. 

Mr. GOWDY. Thank you, Mr. Chairman. Ms. Crump, it has been 

a while since I studied Constitutional law or search and seizure. 

What is the standard required for physical surveillance if law enforcement just wants to follow someone? 

Ms. CRUMP. The Supreme Court has set different standards for 

physical surveillance and electronic surveillance. Physical surveillance, the Supreme Court has not required a warrant based on 

probable cause to carry it out. 

Mr. GOWDY. That is what I thought. So you can follow someone 

in their car without meeting any standard of proof? 

Ms. CRUMP. That is right, and I think—— 

Mr. GOWDY. What about air space surveillance? 

Ms. CRUMP. I think that is a similar rule. The line that Justice 

Alito—— 

Mr. GOWDY. I am not going there yet, we are not there yet. I am 

just asking you about physical surveillance, both on land and air. 

And there is no probable cause requirement for either. 

Ms. CRUMP. That is certainly correct. 

Mr. GOWDY. What about grand jury subpoenas, what is the 

standard required to issue a grand jury subpoena? 

Ms. CRUMP. Generally it would be relevance. 

Mr. GOWDY. Right. So could a Federal prosecutor send a grand 

jury subpoena to a service provider and get their passive GPS historical GPS information? 

Ms. CRUMP. I don’t believe so. 

Mr. GOWDY. Why not? 

Ms. CRUMP. Because of the current restrictions of the Historic 

Communications Act which already sets a standard for tracking location. 

Mr. GOWDY. So what would a prosecutor have to do to get that? 

Ms. CRUMP. To obtain cell site location information under the 

Historic Communications Act. Right now, prosecutors have to show 

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

68 

Mr. GOWDY. That is my point it is not probable cause, it is a relevance standard, so that is what I asked. Right? 

Ms. CRUMP. I misunderstood then. 

Mr. GOWDY. No, more likely, I misphrased my question. What 

about folks on probation, what is the standard, if any, for GPS 

monitoring of folks on probation? 

Ms. CRUMP. Probationers have generally been recognized have 

fewer Fourth Amendment rights. 

Mr. GOWDY. Right, because they have already been convicted. 

How about folks who are on bond and are still presumed innocent, 

what is the requirement for GPS tracking of folks on bond? 

Ms. CRUMP. It is similar. 

Mr. GOWDY. Similar in that it is not probable cause? 

Ms. CRUMP. That is right. 

Mr. GOWDY. All right. Orders of protection for women who have 

been battered and go to a court, and one of the conditions of the 

order of protection is GPS monitoring. What is the standard there? 

Ms. CRUMP. You have reached one actually that I am not particularly familiar with that area of law, so I am afraid I cannot answer. 

Mr. GOWDY. It is not probable cause. 

Mr. District Attorney, Jason Chaffetz and Chairman Goodlatte 

are two of the most reasonable people in Congress. Period, new 

paragraph. 

Mr. SENSENBRENNER. Without objection, so ordered. 

Mr. GOWDY. My—— 

Mr. CASSILLY. Mr. Goodlatte left, he didn’t hear that. 

Mr. GOWDY. Well, I am sure the transcript will reflect that I 

meant that with a lot of earnestness, because I did. I am biased 

toward law enforcement and prosecutors. So how can you get together with Mr. Goodlatte and Mr. Chaffetz and come up with 

something that meets their legitimate privacy in Constitutional privacy expectations and still doesn’t hamper law enforcement’s ability to investigate cases for which probable cause has not been developed yet? 

Mr. CASSILLY. I would be very glad to do that. I still assert that 

a reasonable basis standard which is used, recognized by the 

United States Supreme Court and used throughout law enforcement for many, many decisions would be a proper protection. 

As far as protecting the industry from knowing whether or not 

the request is legitimate or not, using a court order without requiring that the court order be a warrant. Once you change the word 

‘‘court order’’ to ‘‘warrant,’’ you complicate the situation because 

warrants require a lot of service and notice, as opposed to a court 

order, which is used for things like wiretaps and other types of 

electronic surveillance. 

Mr. GOWDY. But you are happy to sit down on behalf of District 

Attorneys and work with Mr. Chaffetz and Mr. Goodlatte? 

Mr. CASSILLY. I would be happy to do that. 

Mr. GOWDY. Thank you, Mr. Chairman. 

Mr. SENSENBRENNER. Gentleman’s time expired. The gentlewoman from California, Ms. Chu. 

Ms. CHU. Thank you, Mr. Chair. Mr. Black, in your testimony 

you provided some very interesting statistics in regard to 

smartphone users; you said that only 6 percent of Americans use 

69 

geolocation or apps, and that 70 percent of users are completely unaware that they exist. So I would like to ask you and Ms. Crump, 

some out there might argue that cell phone users voluntarily make 

their locations known because they carry a cell phone by choice. 

How would you respond to that statement? 

Mr. BLACK. I think certainly making it available to a particular 

user, or for a particular purpose, is not making it available to the 

world for all purposes and not making it available to all other third 

parties. So yet, people may, in fact, say I am willing to have this 

in order to have an entity communicate with me, but that does not 

mean I want to be followed everywhere and my location known by 

a variety of people who I do not choose to have given access to. 

Ms. CHU. Ms. Crump. 

Ms. CRUMP. I agree with everything Mr. Black just said. Today 

it is difficult to function in our society without having a cell phone. 

I think it is a mistake to equate a decision to carry a cell phone 

with a decision that you do not mind being tracked 24 hours a day, 

7 days a week. I think that in our society, there is a lot of information we might, for example, choose to release to someone for a limited time, or for a limited purpose, but that does not mean we 

would want everyone to have access to the same information, or 

that we would feel comfortable being tracked by law enforcement. 

So I think there is a meaningful distinction between disclosing location information to a cell phone company and disclosing it to everyone. 

Ms. CHU. Thank you. 

And, Mr. Black, you also said that companies should treat 

geolocation information with the highest respect when it is gathered from users. How far could potential abuse go in terms of the 

private information obtained? 

And Ms. Crump, too. 

Ms. CRUMP. I am sorry, the question was how far could—— 

Ms. CHU. How far—to what extent could private information be 

obtained? How far could it go? 

Ms. CRUMP. It could actually go quite far. We have much personal and sensitive information in the hands of third parties today 

simply by the way that our devices function. It is not simply that 

we store all of our location information with our cell phone companies; we store all of our emails with third-party companies such as 

Google. 

And so if we don’t establish firm guidelines to indicate that our 

private information is still private, even in our increasingly digital 

and interconnected age, Americans will end up forfeiting rights 

that we have held dear for a long time. 

Mr. BLACK. I would agree. The fact is, modern digital technology 

has great benefits, but it does open up the potential for great access into people’s private affairs.And that is what we are trying to 

do. We are trying to—the level of intrusion, unwarranted and 

unconsented intrusion into people’s private affairs—their location, 

their sensitive data, a variety—is something that we need to guard 

against. 

I love my industry, I love our technology, and it does great 

things, but there is a potential dark side. And what we are trying 

70 

to do is make sure that we have sufficient safeguards to make sure 

that the very fundamental, vital privacy protections are preserved. 

Ms. CHU. Well, in fact, you write that, by having location privacy 

access, that you could show not just where people work and sleep 

but also religious preferences, doctor visits, political affiliations. 

Mr. BLACK. Exactly. I mean, the amount—what you learn by 

being able to monitor precisely someone’s location over a period of 

time can reveal all kinds of sensitive things. It is not just illegal 

behavior; it is all kinds of personal, private information—health 

care. 

I mean, not everyone can do it everyplace, but technology clearly 

exists. And I think Matt Blaze’s testimony says, not only can you 

identify where they are in a building but what floor in a building, 

so what doctor offices, what specialty they are in. 

I mean, you are talking about a surveillance, monitoring capability which can be very detailed, very intrusive. And the longer 

you can do it, the more complete you do it, the more you can find 

out the most intimate facts about an individual. 

Ms. CHU. And is it possible that smartphone users might be hesitant to use their device because they fear that the government will 

invade their privacy? 

Mr. BLACK. I am sorry, I didn’t hear the whole question. 

Ms. CHU. Well, you refer in your testimony to smartphone users 

not wanting to use their devices because of privacy invasions. 

Mr. BLACK. I am sorry, my hearing. 

Mr. SENSENBRENNER. The witness will answer—— 

Ms. CHU. Well, thank you. 

Mr. SENSENBRENNER [continuing]. The question. 

Ms. CHU. I yield back. 

Mr. SENSENBRENNER. Okay, she yields back. 

The gentleman from California, Mr. Lungren. 

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

I am sorry I wasn’t here for your formal presentations, but I will 

continue to look at this. 

Here is the dilemma I find. We have several generations of 

Americans who utilize devices today to tell everybody in the world 

who they are and what they are and, you know, Facebook and so 

forth, where they are revealing so much about themselves and, at 

the same time, they somehow have an expectation of privacy, even 

though they have given information to the very intimate thing 

called the Facebook. And sometimes it is difficult in conversation 

with folks to say, well, you have exposed all of this to the world, 

and now you have this expectation of privacy. And so we have almost different perspectives now on what the reasonable expectation 

of privacy is. 

As an elected official, I find my privacy invaded by something 

called trackers today. I mean, you walk out of a building here, and 

someone is in your face with a smartphone asking you a question 

equivalent to, ‘‘When are you going to stop beating your wife?’’, and 

if you don’t answer it, it looks like you are running away from it. 

One of the great techniques people have figured out on that is to 

pull out their own cell phone and to start talking with their spouse. 

And so, as Mr. Gowdy was saying, what is required for law enforcement to have somebody follow somebody? And is there an esVerDate Aug 31 2005 12:45 Sep 12, 2012 Jkt 000000 PO 00000 Frm 00074 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\051712\74259.000 HJUD1 PsN: DOUGA
71 

sential difference between, you know, a human tracking and electronic tracking from a law enforcement standpoint, and how would 

you articulate that? And I would ask that to you, Ms. Crump. 

Because I am struggling with this. I am trying to figure out what 

would be reasonable. Having been on the law enforcement side, I 

understand the necessity of gathering information. And the general 

rule is, if it is somehow publicly available, you don’t have that expectation of privacy. 

And so, how should we analyze this in terms of the—if I, in law 

enforcement, have an unlimited number of police officers, men and 

women, I could pretty well follow you. I can’t go into the house, but 

I could wait outside wherever you go. I could know your location 

by making sure I have enough cops on the street. I don’t think I 

have to go to a court to do that. 

What is the essential difference, from an analytical standpoint, 

between having an unlimited number of cops available to do that 

and being able to track you by the device that you might have? And 

once we establish what that analytical difference is, what standard 

should be used, if any, to limit what law enforcement might do? 

Can you help me with that? 

Ms. CRUMP. I think that is one of the most interesting and complicated questions in this area. And you are getting at the difference between physically following someone on the one hand and 

tracking them electronically on the other. 

In a word, the difference is resources. Physically tracking someone requires a significant expenditure of resources on behalf of law 

enforcement, and that imposes a natural limit on the degree to 

which this intrusive form of surveillance can be carried out. 

What has happened with the development of electronic tracking 

is, that natural limit has fallen away. So today is it possible for a 

law enforcement agency to track someone’s movement in the comfort of the stationhouse simply by tracking the location of their cell 

phone. And I think—— 

Mr. LUNGREN. So what is the analytical application there? I 

mean, we don’t define privacy standards by budgets, I presume, or 

by the comfort or discomfort of the law enforcement officer. So 

what should we be looking at to help us to come up with legislation 

that is appropriate? 

Ms. CRUMP. Thank you. 

I think the relevant factor is the degree of privacy invasion. And 

I think what motivated the Supreme Court’s unanimous decision in 

Jones was the view by many of the Justices that tracking someone 

electronically for 24 hours a day, 7 days a week is simply a totally 

different animal than doing that the old-fashioned way by foot. 

And because the technology has changed, we need to recalibrate 

the relevant legal standards. And I think the GPS Act does that 

quite well. 

Mr. SENSENBRENNER. The gentleman’s time is expired. 

The gentleman from Georgia, Mr. Johnson. 

Mr. JOHNSON. Yes, I was going to ask a similar question. My 

question would have been, if an automobile is situated in a public 

place and then law enforcement attaches a GPS device surreptitiously, what is the difference between that kind of surveillance 

and also just a physical surveillance, you put a tail on someone and 

72 

follow them around for 28 days or so? You could certainly follow 

someone around in a car—one car or two cars could follow someone 

for 28 days, and there would be no issue as far as privacy is concerned. Is that correct? 

Ms. Crump? 

Ms. CRUMP. Yes, thank you. I think—— 

Mr. JOHNSON. You could even follow someone from the air in a 

helicopter, you know, or perhaps even a drone. If you are following 

someone with a drone that just hovers overhead and tracks their 

movements without a GPS on the automobile, you could do that legally, could you not? 

Ms. CRUMP. I think I would distinguish between the physical 

surveillance examples on the one hand and the drone and GPS 

tracking—— 

Mr. JOHNSON. Well, how about a helicopter? 

Ms. CRUMP. And I think the helicopter is more like physical surveillance. You know, I think the salient difference is the ease with 

which this surveillance can be carried out. When—— 

Mr. JOHNSON. If it is easier than physical surveillance—well, if 

it is easier than physical surveillance on the ground, versus in the 

air, what are the implications? 

Ms. CRUMP. I think to some degree an economic analogy is useful. People simply buy more of something that is cheaper. And 

when you reduce the cost of engaging in surveillance, the odds that 

someone will engage in surveillance where is it not necessary or 

doesn’t serve a strong law enforcement purpose increases. And, 

therefore, it is a greater threat to privacy, and a higher standard 

is warranted. 

Mr. JOHNSON. Well, Darrell Issa may come up with a device that 

interferes with the GPS signal from a car, and—I mean, the marketplace has something to do with this also. 

Mr. Black? 

Mr. BLACK. Well, I want to, I think, reiterate what my industry 

has done—and I love it—it has made it so easy to access this tremendous amount of private information. The resources, if you will, 

the prioritization of resources has acted as a certain natural check 

and balance on the overuse of extensive surveillance. What technology has done is made that cost de minimis, and will, frankly, 

make it even less so in the future. It gets smaller and smaller. So 

instead, not one person sitting in a police station watching one car; 

one person watching a thousand people that they now decided to 

follow. 

So the ease of doing it is why we are saying that we need to recalibrate what the threshold is. 

Mr. JOHNSON. Uh-huh. So that is—this is a very difficult situation that—I feel like yielding to Mr. Lungren. 

Mr. LUNGREN. Yeah, will the gentleman yield? 

One of the things that strikes me is, we see in a lot of cities now, 

they have a lot of cameras set up all over. And it has been controversial, but it is going on. Is there an essential difference between the ubiquitousness of cameras and being able to track somebody that way and this kind of a device? And is that difference that 

somehow you are invading the person’s property interest—in other 

words, you are actually reaching out and touching them in order 

73 

to be able to follow them? Or you are receiving something from 

something which is actually touching them? Is that a—could I ask 

that question? 

Mr. JOHNSON. Sure. 

Ms. CRUMP. I think there are a few ways to distinguish the camera example from GPS tracking. The physical attachment is one of 

them. Some people recognize an indignity to having their own object be turned into a device which is essentially spying on them. 

But also, today, cameras, generally speaking, capture one person 

at one point in time. They are not engaging in a type of continuous 

tracking. That may not be true in the future when all of these camera networks are, you know, networked together and can be easily 

be analyzed. But for right now, I think, where the technology is, 

there is a meaningful distinction. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The gentleman from Pennsylvania, Mr. Marino. 

Mr. MARINO. Thank you, Chairman. 

You raised the question, or you made the statement concerning 

the Supreme Court v. Jones, but you did not delineate their reasoning, to a certain extent. And when the Supreme Court stated 

that affixing a GPS monitor to track a car for weeks is within the 

meaning of the Fourth Amendment, it didn’t address the search 

issue. 

So how would you interpret the search issue? Would you put— 

ma’am, would you put a 2-week limit on the search issue? Or is it 

a search issue? Could you please respond to that? 

Ms. CRUMP. Thank you for the question. 

Law enforcement agencies have actually objected to the idea of 

establishing different criteria based on the length of search. And 

they have done that because they argue that that would be unmanageable, because how do you know how long, you know, a search 

is? If you track someone for a week and then wait another week 

and then track for a week, where does it categorize? 

So, for that reason, I think it makes the most sense to establish 

a uniform and clear standard that will be easy to follow, and that 

should be a warrant, probable cause standard for all location tracking. 

But you are certainly correct in how you characterize the Jones 

decision. That case involved 28 days of geolocation tracking—— 

Mr. MARINO. That is right. 

Ms. CRUMP [continuing]. And Justice Alito specifically said that 

we are not reaching the question of how long tracking has to occur 

for it to be a search, but surely 28 days crosses any reasonable line. 

Mr. MARINO. So do you draw a distinction between any type of 

potential crime or any type of investigation compared to—let’s use 

a drug investigation. We want to monitor, but we don’t want to tip 

off the drug dealer that we are monitoring. And I say ‘‘we’’ because 

I was in law enforcement for 19 years. So it would tip that individual off, in most cases, that he or she was being followed. 

But let’s take it to the next level. Let’s take it to the level of a 

child being abducted, a child being taken by—we are not quite sure 

who the individual is per se, but we do have some reasonable information based on, say, a partial license plate, make and model of 

the vehicle, and to monitor that. Do you see a distinction there? 

74 

Ms. CRUMP. I think we all share the common intuition that some 

crimes are more serious than others, and a petty theft versus a 

child abduction should potentially be treated differently. 

I think the GPS Act, as currently drafted, responds to that by, 

for example, including an emergency situation. So if a child is abducted and someone has a good-faith belief that the child is in danger, law enforcement would be able to engage in tracking in that 

case, even without meeting the warrant requirement. Similarly, in 

the bill there is an exception for national security investigations. 

Mr. MARINO. So who makes that determination? You are going 

to allow law enforcement to make that determination on a case-bycase basis? 

Ms. CRUMP. I think that this body is actually the appropriate one 

to make that determination. I think the current draft bill allows 

law enforcement appropriate flexibility, indicating the types of situations in which law enforcement should be able to track even 

where they don’t meet the warrant requirement, while generally 

holding a warrant requirement in the vast majority of the investigations where the police have time to go to a judge and prove 

their case to a neutral magistrate. 

Mr. MARINO. Okay, thank you. 

I don’t know what my time is, but does anyone else on the panel 

have a comment pursuant to those statements or questions? 

Sir, please. 

Mr. CASSILLY. Yes, I think one of the issues becomes the responsiveness of the service provider. I mean, as the Congressman asked 

the question, who determines when you fall under the exception, I 

think the issue becomes, do the police run in to a disagreement 

with the service provider? Well, you know, we think their lives are 

at stake, and the service provider’s response is, well, you know, we 

don’t think so; you know, we are too busy right now. And I think 

one of the parts of this discussion should be, you know, what are 

the standards for the service providers to respond, the time limits 

that they have to respond. 

And I do agree that part of the good thing that comes out of this 

is that there is some sort of a standard instrument that comes out 

of this discussion—court order or a certain subpoena—with a basis 

that industry can rely on and say, okay, this is a reasonable request, we are required to respond to this, and we do so in good 

faith. 

Mr. MARINO. Good. Thank you. 

I think my time has long expired. Thank you. 

Mr. CHAFFETZ. [Presiding.] The gentleman yields back. 

We will now recognize the gentlewoman from Texas for 5 minutes. 

Ms. JACKSON LEE. I thank the Chairman very much. 

And this is a very vital discussion. I offered some legislation just 

a while back dealing with privacy issues as a Member of the Homeland Security Committee, an opportunity for Federal agencies to 

talk together, or either the Department of Homeland Security to 

talk with Justice and another department. And, certainly, the issue 

of privacy was raised, and the amendment was challenged on that 

basis, even though I thought that I had adequately put in privacy 

provisions. 

75 

And so I would like to pose my questions from a perspective of 

someone who has seen the challenge of privacy head-on and values 

my commitment to privacy and would make the argument that, in 

the instance of the particular amendment that had to do a lot with 

terrorism and issues of that sort, that it was misunderstood. 

But keeping that in mind, I vigorously believe that privacy is 

something that we should hold on to and deserves the ultimate 

standard of respect, while we recognize the challenges of law enforcement or those who are engaged in counterterrorism. 

So I would like to ask Mr. Cassilly, just aside from all the discussions you have had with other Members and that you may have repeated this or said this before, from the law enforcement perspective—and I am going to ask you to wear a prosecutor’s hat and police hat only because you are dealing with receiving information 

from law enforcement—what would be, in your mind, a sufficient 

privacy or structure of protection for getting information such as 

the data that says, ‘‘I was standing in a place today at a certain 

time,’’ that is, phone data, making a phone call, or I was moving 

around, going toward another place, which is the information I understand that can be secured? What would be, in your mind, the 

privacy protection that law enforcement should adhere to or should 

consent to or should put in place? 

Mr. CASSILLY. I think you are asking, just if I can clarify the 

question, what is the standard that we would use in being allowed 

to go forward to seek this information? 

Ms. JACKSON LEE. Your clarification I think is a good interpretation of what I thought, you know, was clear, which is, what would 

you believe were satisfactory privacy parameters as you pursue getting this information? 

Mr. CASSILLY. Well, I think that the proper standard, which is 

of course what the Supreme Court has said, with respect to law enforcement being able to go up and stop people on the street and to 

question them about crimes would be a reasonable basis. Do they 

have a reasonable basis, a reasonable suspicion, to make that inquiry, to stop someone on the street, if we are using that analogy? 

To detain them on the street, to require them to produce identification on the street, that requires a reasonable basis standard. And 

I think that would be—— 

Ms. JACKSON LEE. A reasonable basis of suspicion. 

Mr. CASSILLY. Reasonable basis—reasonable suspicion of criminal activity. And I think that is the same standard that would 

work under these circumstances, to require law enforcement to be 

able to show a reasonable basis. 

And they could show that either to the prosecutor in issuing a 

subpoena or through a petition to the court for a court order, as 

long as that was the requirement for the showing. 

Ms. JACKSON LEE. With that in mind, let me—thank you, Mr. 

Cassilly. 

Let me go to Ms. Crump. And in a calm Judiciary Committee 

room, that sounds reasonable, but I would say to you, since I am 

not a fan of stop-and-frisk, which I understand has taken over in 

epidemic proportions in areas like New York, I would be concerned, 

having issued probable cause warrants as a member of the judiciary, as a city court judge, and looking the officer face-to-face in 

76 

whatever disguise they were in, because I would get them 11:00, 

12:00, early morning hours, because they were just coming off the 

street and get the warrant based upon their presentation in the 

courthouse. 

Tell me your concerns about just that standard. Because what I 

see is potential, not purposeful havoc and not mean-spirited havoc, 

but I see havoc. And tell me what the basic corners of the concern 

would be. I just see tracking going on. 

Ms. CRUMP. Thank you for the question. 

I think one of the aspects of this debate that your comments 

highlighted was the importance of a judge being interposed between a citizen and the police. We have a tradition in this country 

of interposing magistrate judges between the citizen and the police, 

and it is not because we don’t trust law enforcement agents, but 

it is because we believe, as the Supreme Court has said, that often 

there is a need for an objective mind to weigh the evidence at hand. 

And I think that it is important when location tracking is at issue 

for there to be that interposition between the citizen and police. 

Ms. JACKSON LEE. Say that—— 

Mr. CHAFFETZ. Thank you—— 

Ms. JACKSON LEE. Could I just have her repeat? Objective 

mind—— 

Ms. CRUMP. It is important to have an objective mind interposed 

between the citizens and the police. 

Mr. CHAFFETZ. Thank you—— 

Ms. JACKSON LEE. Well, let me thank you very much. I yield 

back. 

Mr. Chairman, may I just inquire to you directly and just indicate that, as I am looking at the legislation, H.R. 2168, if I might 

inquire, you think the legislation has an objective mind interposed 

in between the decision? 

Mr. CHAFFETZ. Yes, I do. Yes, I do. 

Ms. JACKSON LEE. All right. I thank the Chairman. I yield back. 

Mr. CHAFFETZ. Thank you. 

Now we will start a second round of questioning, and I will recognize myself for 5 minutes. 

There are a number of exceptions that are put in here. Mr. 

Ramsey and Mr. Cassilly, is there anything that you would add or 

subtract to those list of exceptions as you have been able to look 

at the bill? 

Mr. CASSILLY. Well, as I pointed out in my testimony, I think 

that the exception with respect to consent needs to be expanded to 

not only cover children’s phones but to cover phones of persons who 

may be mentally limited or who may be ill. 

We recently had a case in Maryland where an individual who 

was going into a diabetic episode was not able to respond to 911 

operators to tell them where he was. Under those circumstances, 

either it is an emergency situation, if it doesn’t fall under the lifethreatening exception, there certainly should be some way of just 

asking a relative, ‘‘Okay, is it okay if we locate his phone?’’, something like that. 

But usually for someone who may be mentally limited, they are 

not going to—you know, they may function fine, they just may not 

be there. 

77 

Mr. CHAFFETZ. Okay. 

Mr. CASSILLY. So we think that ought to be a thing. I think you 

have two emergency exceptions in the statute; I think they need to 

come together. And I think that the emergency needs to be a little 

broader than just, you know, serious injury and death. That is 

a—— 

Mr. CHAFFETZ. Let me do this in the essence of time. Perhaps if 

you could respond and give us any adaptations that you would like 

to see to the bill in general, but specifically to the exceptions. 

I would offer that to all of you, as well. 

Much of this is based on the wiretap statute. Is there anything 

that you don’t like about the wiretap statute that you would also— 

you would change in this bill but you would also change in the 

wiretap statute? 

Mr. Ramsey? 

Mr. RAMSEY. We wouldn’t have an opinion on any changes to the 

Title III wiretap statute. 

Mr. SENSENBRENNER. Mr. Cassilly? 

Mr. CASSILLY. Well, I mean, I wouldn’t want to see any changes 

reflected on Title III. But when you look at Title III, Title III requires a probable cause finding. And when you end up saying that 

there you actually get the contents of the communication, whereas 

here you are only getting, you know, a location of a cell phone, that 

if you are looking at it from a perspective of the degree of intrusion, that would say to me that then you would only require under 

these circumstances a reasonable, articulable suspicion. 

Mr. CHAFFETZ. Okay. 

Ms. Crump, Mr. Cassilly contends in his written statement that 

his organization believes, quote, ‘‘It is imperative to distinguish between historical data compiled from cell tower hits and realtime 

GPS ping information.’’ Could you comment on that? 

Ms. CRUMP. Thank you for the question. 

I don’t think the distinction between historical and realtime data 

is a meaningful one. As one court has remarked, the story of your 

life doesn’t become any less sensitive because it has already been 

written. 

Today, cell phone companies store historical information about us 

for very lengthy periods of time. Some cell phone companies keep 

records of where we have been for over a year. And I think, in light 

of that, many Americans believe that where they have been for the 

past 60 or 90 days is at least as sensitive as where they are going 

in realtime. 

Mr. CHAFFETZ. Let me also ask you, Mr. Ramsey contends that 

there should be a lower standard of law enforcement to access 

geolocation information from smartphones and other mobile devices 

than the standard for attaching tracking devices to cars, because 

in the case of smartphones, quote, ‘‘the government doesn’t own nor 

are they attaching the locational device to the person,’’ as was obviously the case in the Jones case. 

Can you comment on that? 

Ms. CRUMP. My instinct on this is the same as Justice Alito, that 

the relevant privacy invasion is the tracking of someone, not the 

property invasion. And, therefore, I think the distinction between 

physically attaching a GPS device to a car and obtaining equivalent 

78 

information from a cell phone company or an OnStar navigation 

system is not one that the law should reflect. 

Mr. CHAFFETZ. And, finally, in the essence of time here, again, 

we focused all on law enforcement; my intention with this legislation was also to make this applicable to non-law-enforcement entities. 

Is there anything in the bill that troubles you in terms of, is it 

civilians or average citizens out there tracking or following other 

individuals? Because right now they are not precluded from doing 

so, in many of these cases. Is there anything that bothers you outside of the scope of law enforcement that you would change? 

Mr. Ramsey or Mr. Cassilly? 

Mr. CASSILLY. I think there is some concern over the industry, 

the folks who work for the industry being intimidated somewhat by 

complying with a legitimate law enforcement request by the fear of 

becoming criminally or civilly liable. And I think that needs to be 

clarified, as well as more specifics on what sort of cooperation law 

enforcement can expect back from the industry, when we can expect to receive information and that sort of thing. 

Mr. BLACK. If I could respond, yes, certainly I think industry 

very much wants a clearer standard. And one of the reasons we 

want a reasonably high standard is because being deluged with 

tens of thousands of requests at a lower standard frankly becomes 

quite burdensome and requires decision-making at a much different level. 

First of all, keep in mind, we have a wide range of companies 

who may get involved here. We are not just talking big Internet 

platforms. We are talking a lot of companies that may be much 

smaller, do not have legal counsel, do not have a range of capability and structure to deal with that. 

So, particularly, there was some reference to, I think in testimony, to a mandatory response time situation. Any fixed time 

would be very harmful. The DMCA uses the word ‘‘expeditiously’’ 

in terms of response—I think any legislation talking about industry 

response needs that flexibility because of the diversity of providers 

that exist. 

Mr. CHAFFETZ. Thank you. 

I now recognize the Ranking Member, Mr. Scott, for 5 minutes. 

Mr. SCOTT. Thank you. 

There are a number of exceptions in the bill. Mr. Black, should 

there be an exception if the evidence is getting away—that if you 

delay and get a warrant, the person will escape and you won’t 

know where they are? 

Mr. BLACK. Your question is with regard to the exception relating to—— 

Mr. SCOTT. Where there are life and death exceptions, people’s 

lives are in danger. Do you have that exception? 

Mr. BLACK. Well, certainly—— 

Mr. SCOTT. What about, the bank just got robbed and the people 

are getting away, and if you can get the information right then, 

you might be able to catch the person, and if you wait 45 minutes, 

they would have gotten away. Is that an exception? 

Mr. BLACK. I think we start out with the assumption that the exceptions that we see provide for most emergency situations, and 

79 

that to the extent the exception needs to be broader, there is a 

great deal of privacy risk at stake. And I would like to see the law 

enforcement justification as to why the current exceptions really 

aren’t adequate to cover specific—— 

Mr. SCOTT. Mr. Ramsey, would you want an exception for the 

evidence that is getting away? 

Mr. RAMSEY. I think that would be appropriate for all law enforcement—— 

Mr. SCOTT. And how do you cover that—is there an exception 

now with other warrants, that if you had a search warrant, you 

need to get the information right away or it may get away, and 

then you get an after-the-fact warrant? 

Mr. RAMSEY. You have hot-pursuit exceptions that—you have exceptions to a warrantless arrest or situation. 

Mr. SCOTT. Okay, so a hot-pursuit type of warrant would be an 

exception that would—Ms. Crump, what do you think about a hotpursuit exception? 

Ms. CRUMP. In the Fourth Amendment doctrine, that is well-recognized exception, and I could imagine a reasonably crafted exception here that encompassed the same idea. 

Mr. SCOTT. Okay. 

Who pays the costs of all of this? Mr. Black indicated a deluge 

of requests. That would obviously have cost implications to a phone 

company. Who pays the additional costs to responding to all of 

these requests? 

Mr. BLACK. Under some existing statutes, there are cost referral 

situations, and companies do get some compensation. I think we 

have to—while companies are not anxious to incur the burden 

without compensation, on the other hand we want to make sure 

that this does not become a profit center for companies. We do not 

want them encouraging law enforcement to come undertake unnecessary and widespread surveillance in order to get revenue. 

Mr. SCOTT. Thank you. 

Do the different phone companies keep different data? Apparently, they can keep track of where you have been, because as you 

travel your phone pings the cell, so they can find out all the cells 

where you were. There are also business records of when and 

where you made a call. 

Do different companies keep different data, Ms. Crump? 

Ms. CRUMP. Yes, they do keep some different data, at least in 

terms of the length of time that they store the information. 

So, for example, we were able to obtain through a Public Records 

Act request a one-sheet document from the Department of Justice 

in which it summarized how long different carriers kept different 

forms of location information. So, for example, Verizon stores the 

cell phone towers used by a mobile phone for 1 rolling year; T-Mobile keeps it for 4 to 6 months officially but, quote, ‘‘really a year 

or more’’; and AT&T Cingular retains it from July 2008. So who 

your carrier is impacts—— 

Mr. SCOTT. Is that the fact that you made a call or where you 

were? 

Ms. CRUMP. That is an excellent question that I would like to 

know the answer to. 

80 

Oh, I am sorry. Let me clarify that. That is where you were, but 

the precise nature of that information, how precise it is, is something that neither carriers nor law enforcement has disclosed. 

Mr. SCOTT. Okay. But how long—if you made a call, how long is 

that kept? Is that a different list? 

Ms. CRUMP. That is a different list. 

Mr. SCOTT. Okay. 

Ms. CRUMP. And it is also on this piece of paper, but I don’t have 

it with me. 

Mr. SCOTT. Okay. 

Now, Ms. Crump, you said there was no difference between the 

historical record and realtime data, but should there be a different 

standard in getting information that you made a phone call from 

Times Square on New Year’s Eve, yes or no? Should there be a different standard from realtime tracking? 

Because, but for the privacy, electronic privacy records, a fact 

that you made a phone call would be a business record that you 

could scoop up on a relevance basis. 

Ms. CRUMP. I agree with the general idea that as the information 

becomes more precise, it is more sensitive. However, the GPS Act 

provides a uniform standard, because law enforcement—— 

Mr. SCOTT. Even for getting a historic business record should be 

the same standard as realtime tracking? 

Ms. CRUMP. I don’t think it is fair to view cell phone location 

data as just another form of business record. Similarly, you know, 

our email is, in some sense, Google’s business record if we have a 

Gmail account because it is all stored there. I think today it is 

more like, you know, a safe deposit box. We are entrusting something valuable about us to a third-party company, and that is different from it being just the business record of a bank. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. BLACK. If I would have a chance to comment, I would very 

much echo that. I think the technology in the email reference was 

on point. If we go to the concept that the data used by technology 

companies to perform their functions are just business records, 

then a massive amount of information about everyone becomes 

available under a lower standard. 

Mr. CHAFFETZ. The gentleman’s time has expired. 

We will now recognize the gentleman from South Carolina, Mr. 

Gowdy, for 5 minutes. 

Mr. GOWDY. Thank you, Chairman Chaffetz. 

I will resist the temptation to ask about the expectation of privacy with emails that can be easily forwarded to the rest of the 

world. And I will instead ask Ms. Crump, you gave a quote to the 

gentlelady from Texas which I tried to write down but I missed it. 

It had something to do with a credible—something. Credible intermediary? Credible objective? 

Ms. CRUMP. I am afraid that my memory is no better about what 

I may have said. 

Mr. GOWDY. I think you were referring to, it is better to have a 

neutral, credible, detached—— 

Ms. CRUMP. Magistrate judge, yes. 

81 

Mr. GOWDY. Right. Which then got me wondering who that credible, neutral, detached magistrate is with the automobile exception 

to the Fourth Amendment. 

Ms. CRUMP. There is an exception when there is—— 

Mr. GOWDY. Then there is no credible, neutral, detached intermediary, correct? 

Ms. CRUMP. Although in general the Fourth Amendment requires 

you to go to a—— 

Mr. GOWDY. I wasn’t asking in general. I was asking about one 

of the exceptions. 

Ms. CRUMP. There are exceptions in the automobile—— 

Mr. GOWDY. How about exigent circumstances? Who is the credible, detached, neutral intermediary with the exigent circumstances 

exception? 

Ms. CRUMP. Similarly, because the circumstances are exigent, 

there is no requirement that you go to a judge. 

Mr. GOWDY. How about the public safety exception? Who is the 

credible, neutral, detached intermediary between law enforcement 

and private citizens with the public safety exception? 

Ms. CRUMP. I think you are pointing to another extreme example 

where we all recognize that there is—— 

Mr. GOWDY. How about the plain field doctrine? Who is the credible, neutral, detached intermediary between the public and law 

enforcement with the plain feel doctrine? 

Ms. CRUMP. Because the plain feel doctrine doesn’t implicate the 

same privacy interests, there is no—— 

Mr. GOWDY. How about the plain view doctrine? 

Ms. CRUMP. I would have the same answer to that. 

Mr. GOWDY. Border exceptions? 

Ms. CRUMP. It depends on the nature of the search at the border, 

but—— 

Mr. GOWDY. Search incidents to arrest? 

Ms. CRUMP. I think what you are driving at is that there—— 

Mr. GOWDY. What I am driving at is, there are lots of exceptions. 

Ms. CRUMP. That is right, but that doesn’t mean there isn’t a 

rule and that the rule isn’t probable cause. And that there is a good 

reason—— 

Mr. GOWDY. Well, some would argue the rule has been swallowed 

by the exceptions. I would imagine your entity might argue from 

time to time that the rule has been swallowed by the exceptions, 

not to put words in your mouth, but—well, let me ask you this. 

Can you help me come up with all the instances in the criminal 

justice system where probable cause is not required? 

Ms. CRUMP. I think you have come up with a pretty good list already—— 

Mr. GOWDY. Yeah, but you—— 

Ms. CRUMP [continuing]. But they have a common unifying 

theme, which is usually either a reduced expectation to privacy because the information sought isn’t sensitive—— 

Mr. GOWDY. How about drug dogs? What is required to bring a 

drug dog and search a car? 

Ms. CRUMP. A drug dog and a car? There is generally no requirement that there is probable cause. 

Mr. GOWDY. Well, it is an articulable suspicion, right? 

82 

Ms. CRUMP. Well, the Supreme Court is reconsidering drug dogs 

sniffs right now, but currently the standard—— 

Mr. GOWDY. But now it is articulable suspicion. So we have—at 

one level, you don’t have to have anything; you can just have a 

hunch. For instance, you can walk up to someone’s house and do 

a knock-and-talk, and you don’t have to have any basis to be able 

to do that. Police can stop and ask people questions, and they don’t 

have to have any basis for doing that. 

And then you can have an articulable suspicion, you can have a 

reasonable basis, and then you get to probable cause, which is the 

same standards you have to have to arrest someone. So you really 

want police to be able to make an arrest before they can get historical GPS information. You want the same standard to get the historical GPS information as you would have to have to make an arrest. 

Ms. CRUMP. The arrest standard, like the house search and other 

standards, is a probable cause standard, and it is predicated on—— 

Mr. GOWDY. I am asking your opinion. You think that we should 

be able to make an arrest before we can get the historical GPS information. 

Ms. CRUMP. Well, I don’t think the standard for—no, I don’t. And 

the reason is, to get probable cause for location information, you 

have to have a good reason to believe that a search will turn up 

evidence of a crime. So it is a different type of probable cause than 

actually physically arresting someone. 

Mr. GOWDY. There is not a different definition for probable cause 

depending on whether it is an investigation or whether it is an arrest. 

Ms. CRUMP. Well, when you are going to arrest someone, you 

have to have probable cause that they have committed a crime. 

Mr. GOWDY. Right. 

Ms. CRUMP. The only distinction I was drawing is that, to obtain 

geolocational information, you have to have probable cause to believe that a search will turn up evidence of a crime. 

Mr. GOWDY. My time is up. 

Mr. CHAFFETZ. The gentleman’s time has expired. Yields back. 

We now recognize the gentleman from Georgia for 5 minutes. 

Mr. SCOTT. Thank you. 

This is an area with unlimited implications, and so I appreciate 

all of the witnesses today for your diligence in responding to some 

difficult questions. 

I will ask one, though, and it may not be too difficult, but—I understand that when you walk into a grocery store that there are 

things in the grocery store that connect with your cell phone and 

they can track you walking around in the store and then send a 

message to a screen, where you might happen to be pondering 

whether or not you should do what you always do at the store, and 

that is get that cherry pie even though you are on a diet and everything. And them, boom, they start flashing out to you, ‘‘Cherry pie, 

50 percent off,’’ you know, ‘‘Get one now,’’ you know. 

Is that a violation of—would that be a violation of this proposed 

legislation? 

Mr. BLACK. I suppose I ought to try that. No, we have a consent—we have users, basically, you have—the owner of the cell 

83 

phone has a choice as to those kinds of services being made available or not. 

Mr. SCOTT. Well, I mean, a lot of people have cell phones and 

then we come up with new technology—— 

Mr. BLACK. That is right. 

Mr. SCOTT [continuing]. And there was never a consent given in 

the agreement for the cell phone. 

Mr. BLACK. I think it is important to point out that our industry 

has found a great deal of sensitivity in the public to privacy. 

Facebook has made some changes, and there have been outcries. 

Google merely consolidated existing privacy policies, and there was 

wild outcry. There is an FTC oversight that has taken actions in 

a number of places. Consumer boycotts exist in many instances. 

The empowerment of the user community out there is very, very 

real. And I think you have a lot of free market operation to balance 

and control with, if you will, abusive practices. People may exceed 

what somebody might find comfortable, but there really are mechanisms in that world to push back. 

Mr. SCOTT. So you are suggesting—— 

Mr. BLACK. That is different than somebody knowing and being 

able to use that in an adversarial proceeding, which I think is what 

the bill is largely focused at. 

Mr. SCOTT. Well, if there was a crime committed with the DNA 

from a discarded paper plate with the residue of cherry pie on it, 

and law enforcement subpoenaed the records of the Harris Teeter 

store to see whether or not you purchased a cherry pie on a particular day shortly before the—— 

Mr. BLACK. If there was only one cherry pie sold in the city and 

somebody bought it, maybe you could build a probable cause standard. 

Mr. SCOTT. Yeah, I mean, but I still need to get an answer for 

my question. Does this kind of scenario, the store or whoever it is 

in control of capturing the data while you are walking around in 

the store, would that be an illegal act under this legislation that 

is proposed? Can someone answer that? 

Ms. CRUMP. I believe I can answer. And as I read the definition 

set out in the statute, that is not covered, because the definitions 

target the provider of an electronic or remote computing service or 

the provider of a geolocation information service. And because the 

store itself is not one of those services, I don’t believe, at least 

under the current draft, that it is covered. 

Mr. SCOTT. Well, then, would it cover law enforcement? 

Ms. CRUMP. To take your cherry pie DNA example, I think in 

that case it wouldn’t be covered, because this bill deals exclusively 

with tracking people through electronic devices. You know, if law 

enforcement was trying to track someone, you know, the cherry-pie 

eater’s movement after the fact, the bill would cover it if they did 

so through their cell phone or GPS. But it wouldn’t cover the precise scenario you mentioned. 

If you don’t mind, I will also mention that your initial hypothetical was quite realistic. There was a mall that actually tried 

tracking people’s movements through their cell phones. And when 

the public found out about it, their outrage was so great that the 

mall quickly announced it had discontinued the practice. And I 

84 

think that is a good example of how location information is still 

considered to be quite sensitive even in this digital age and why 

this act is so important. 

Mr. CHAFFETZ. Thank you. The gentleman’s time has expired. 

We will now recognize the gentlewoman from Texas for 5 minutes. 

Ms. JACKSON LEE. First, I want to acknowledge I think this hearing is enormously important, and I think the work that is being 

done by law enforcement is equally important. 

Mr. Ramsey, I did not mention that local law enforcement is also 

involved in counterterrorism, to the extent that individuals spread 

out into our respective communities—and as I indicated, I am on 

Homeland Security. 

But as I listened to my good friend from South Carolina lay out 

a litany of exceptions, I would make the argument that there is a 

framework upon which you can work with. And I just want to ask 

a simple question. Law enforcement is not interested in extinguishing privacy rights of citizens, is—I am asking you, Mr. 

Ramsey. 

Mr. RAMSEY. You are asking me—— 

Ms. JACKSON LEE. Yeah, that is not your mission, to eliminate 

privacy rights of citizens. 

Mr. RAMSEY. No, it is not. No. 

Ms. JACKSON LEE. All right. So I just wanted to say that because 

I want to move on to other questions. And, as I said, this is a week 

where we are honoring police officers, and having been a former 

city court judge, I have dealt with officers a lot. 

But I want to focus on Mr. Black and Ms. Crump. As I have said, 

as I listen to the long litany of exceptions, I become more comforted 

that we need to ensure that we have the right standards in this 

legislation that I am very interested in, H.R. 2168, but we do have, 

I think, a need to balance both rights. Because in the course of the 

stop-and-frisk—I am just on a metaphor statement here—in the 

course of the stop-and-frisk, innocent people are stopped and 

frisked. And that is the physical act of stopping and frisking individuals. And we know that, in the course of that that is under the 

label of law enforcement, there are individuals being stopped for no 

reasons whatsoever. And I think we have to protect against that. 

So I just want to ask the question to Mr. Black. In these companies, generally, as you represent them, do they have a direct-dial 

number? Is there a number that law enforcement is assigned to? 

Or is it a random, pick up the phone, speaking to someone trying 

to get information? 

Mr. BLACK. Well, certainly, in larger companies, there are wellestablished procedures to integrate with entities. 

Ms. JACKSON LEE. Right. 

Mr. BLACK. However, having said that, first of all, a lot of small 

companies are not able to do that. And even the largest companies, 

we are not dealing with just the Department of Justice or just even 

the State police; we are talking about jurisdictions of State, local, 

county, many, many different jurisdictions that may choose to try 

to contact companies in a variety of ways and different people. 

So it is not clear that there is an easy channel always, even if 

both sides want it. The diversity—some, you know, a district attorVerDate Aug 31 2005 12:45 Sep 12, 2012 Jkt 000000 PO 00000 Frm 00088 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\051712\74259.000 HJUD1 PsN: DOUGA
85 

ney, a sheriff in a variety of places—I mean, many, many requests 

come in. 

And that is one of the problems I think we see, is that the— 

knowing this information is potentially—is there, the incentive to 

want it even when the need isn’t that great, when, ‘‘Gee, it might 

be nice to know that,’’ will geometrically expand the requests, increase the burden, and increase the amount of privacy intrusion 

that may not really be highly justified. 

Ms. JACKSON LEE. And I wanted to get that on the record, because you all fall sometimes in the category of too big to fail or too 

big to be big, and so it looks as if you should be able to handle everything. But I think privacy is as important for the larger companies with larger portfolios of customers as it might be for the small 

guys. 

The other point I want to make is that, if I am correct, I believe 

that there is certainly the right of police when it is a child victim 

involved to pursue this information and be insistent. I think under 

the legislation, if I am not mistaken, that children provide the 

cover for getting information quickly. 

My next question would be, is there a sense of intimidation? If 

you are talking about different size companies, law enforcement 

calls up, is there a sense of intimidation or a sense of the urgency 

without seeking protections because you have law enforcement? 

Which means—it is the nexus to my point, that we need some parameters. 

Mr. BLACK. Let me say first of all, I think my companies can be 

expected to be good citizens. We have numerous instances of receiving awards, some from law enforcement entities, for the rapid response in that situation. 

Ms. JACKSON LEE. And that is good. 

Mr. BLACK. Willing to do that. The difficulty, as I say, you start 

creating fixed rules that become very difficult to operate for different kind of companies in different kind of settings. But, clearly, 

an expeditious type standard—yes, we want to respond. There is no 

desire to do anything but respond in emergency-type situations. 

I think, frankly, the availability of the exceptions in the legislation help underline the importance of the basic standard itself. The 

more we see good flexibility in the exceptions, the more necessary 

and desirable and dependable it is to have the probable cause 

standard. 

Mr. CHAFFETZ. Thank you—— 

Ms. JACKSON LEE. I ask the Chairman for an additional 1 

minute, just unanimous consent. I just need to follow up with Ms. 

Crump, just for a moment, please. 

Mr. CHAFFETZ. Without objection, so ordered. 

Ms. JACKSON LEE. I thank you. 

Ms. Crump, with the litany of exceptions that, I must say, that 

you handled very well as you repeatedly were being posed a series 

of criminal exceptions that we understand here, doesn’t that give 

you the sense that although we want to adequately equip our law 

enforcement, that there are sufficient exceptions that we should be 

very keenly pointed toward the privacy issues, and that the opportunity to track where you are going, where you have been, the opVerDate Aug 31 2005 12:45 Sep 12, 2012 Jkt 000000 PO 00000 Frm 00089 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\051712\74259.000 HJUD1 PsN: DOUGA
86 

portunity to mislabel someone and misidentify, is crucial for us getting in front of this new technology instead of behind it? 

Ms. CRUMP. Thank you for the question, and I couldn’t agree 

more with what you said. There are numerous exceptions already 

to the Fourth Amendment, but that doesn’t change the fact that 

the benchmark is a warrant and probable cause and that that 

serves a valuable function when law enforcement wishes to access 

deeply sensitive information about all of us. 

The Fourth Amendment we often bemoan as having been eroded 

away too far, but there is a reason it was written into the Constitution. It is because the Founders intended there to be a balance between law enforcement interests and privacy interests. And this 

bill would help restore that balance. 

Ms. JACKSON LEE. Let me thank the Chairman, and I yield back 

my time. 

Mr. CHAFFETZ. Thank you. 

I would like to thank all of our witnesses for your time and your 

testimony and your expertise and making the time and effort to be 

here. 

Without objection, all Members will have 5 legislative days to 

submit to the Chair additional written questions for the witnesses, 

which we will forward and ask the witnesses to respond as promptly as they can so the answers to these questions can be made part 

of the record. 

Also, without objection, all Members will have 5 legislative days 

to submit any additional materials for inclusion in the record. 

Hearing no objection, so ordered. 

With that, again, I would like to thank the witnesses. 

The hearing is now adjourned. 

[Whereupon, at 11:52 a.m., the Subcommittee was adjourned.] 

(87) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD


74259D-1.eps
88 


74259D-2.eps
89 


74259D-3.eps
90 


74259D-4.eps
91 


74259D-5.eps
92 


74259D-6.eps
93 


74259D-7.eps
94 


74259D-8.eps
95 


74259D-9.eps
96 


74259D-10.eps
97 


74259D-11.eps
98 


74259D-12.eps
99 

f 


74259D-13.eps
100 

f 


74259E.eps
101 


74259F-1.eps
102 


74259F-2.eps
103 


74259F-3.eps
104 


74259F-4.eps
105 


74259F-5.eps
106 


74259F-6.eps
107 


74259F-7.eps
108 


74259F-8.eps
109 


74259F-9.eps
110 


74259F-10.eps
111 


74259F-11.eps
112 


74259F-12.eps
113 


74259F-13.eps
114 


74259F-14.eps
115 


74259F-15.eps
116 


74259F-16.eps
117 


74259F-17.eps
118 


74259F-18.eps
119 


74259F-19.eps
120 


74259F-20.eps
121 


74259F-21.eps
122 


74259F-22.eps
123 


74259F-23.eps
124 


74259F-24.eps
125 


74259F-25.eps
126 


74259F-26.eps
127 


74259F-27.eps
128 


74259F-28.eps
129 


74259F-29.eps
130 


74259F-30.eps
131 


74259F-31.eps
132 


74259F-32.eps
133 


74259F-33.eps
134 


74259F-34.eps
135 


74259F-35.eps
136 


74259F-36.eps
137 


74259F-37.eps
138 


74259F-38.eps
139 


74259F-39.eps
140 


74259F-40.eps
141 


74259F-41.eps
142 


74259F-42.eps
143 


74259F-43.eps
144 


74259F-44.eps
145 


74259F-45.eps
146 


74259F-46.eps
147 


74259F-47.eps
148 


74259F-48.eps
149 


74259F-49.eps
150 


74259F-50.eps
151 


74259F-51.eps
152 


74259F-52.eps
153 


74259F-53.eps
154 


74259F-54.eps
155 


74259F-55.eps
156 


74259F-56.eps
157 


74259F-57.eps
158 


74259F-58.eps
159 


74259F-59.eps
160 


74259F-60.eps
161 


74259F-61.eps
162 


74259F-62.eps
163 


74259F-63.eps
164 


74259F-64.eps
165 


74259F-65.eps
166 


74259F-66.eps
167 


74259F-67.eps
168 


74259F-68.eps
169 


74259F-69.eps
170 


74259F-70.eps
171 


74259F-71.eps
172 


74259F-72.eps
173 


74259F-73.eps
174 


74259F-74.eps
175 


74259F-75.eps
176 


74259F-76.eps
177 


74259F-77.eps
178 


74259F-78.eps
179 

f 


74259F-79.eps
180 


74259G-1.eps
181 


74259G-2.eps
182 

f 


74259G-3.eps
183 


74259H-1.eps
184 

f 


74259H-2.eps
185 


HR2168-1.eps
186 


HR2168-2.eps
187 


HR2168-3.eps
188 


HR2168-4.eps
189 


HR2168-5.eps
190 


HR2168-6.eps
191 


HR2168-7.eps
192 


HR2168-8.eps
193 


HR2168-9.eps
194 


HR2168-10.eps
195 


HR2168-11.eps
196 


HR2168-12.eps
197 


HR2168-13.eps
198 


HR2168-14.eps
199 


HR2168-15.eps
200 


HR2168-16.eps
201 


HR2168-17.eps
202 


HR2168-18.eps
203 


HR2168-19.eps
204 

Æ 


HR2168-20.eps