I 

112TH CONGRESS 

1ST SESSION H. R. 2168 

To amend title 18, United States Code, to specify the circumstances in 

which a person may acquire geolocation information and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JUNE 14, 2011 

Mr. CHAFFETZ (for himself and Mr. GOODLATTE) introduced the following 

bill; which was referred to the Committee on the Judiciary, and in addition to the Select Committee on Intelligence (Permanent Select), for a 

period to be subsequently determined by the Speaker, in each case for 

consideration of such provisions as fall within the jurisdiction of the committee concerned 

A BILL 

To amend title 18, United States Code, to specify the circumstances in which a person may acquire geolocation 

information and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLES. 

4 This Act may be cited as the ‘‘Geolocational Privacy 

5 and Surveillance Act’’ or the ‘‘GPS Act’’. 


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1 SEC. 2. PROTECTION OF GEOLOCATION INFORMATION. 

2 (a) IN GENERAL.—Part 1 of title 18, United States 

3 Code, is amended by inserting after chapter 119 the fol4 lowing: 

5 ‘‘CHAPTER 120—GEOLOCATION 

6 INFORMATION 

‘‘Sec. 

‘‘2601. Definitions. 

‘‘2602. Interception and disclosure of geolocation information. 

‘‘2603. Prohibition of use as evidence of acquired geolocation information. 

‘‘2604. Emergency situation exception. 

‘‘2605. Recovery of civil damages authorized. 

7 ‘‘§ 2601. Definitions 

8 ‘‘In this chapter: 

9 ‘‘(1) ELECTRONIC COMMUNICATION SERVICE.— 

10 The term ‘electronic communication service’ has the 

11 meaning given that term in section 2510. 

12 ‘‘(2) ELECTRONIC SURVEILLANCE.—The term 

13 ‘electronic surveillance’ has the meaning given that 

14 term in section 101 of the Foreign Intelligence Sur15 veillance Act of 1978 (50 U.S.C. 1801). 

16 ‘‘(3) GEOLOCATION INFORMATION.—The term 

17 ‘geolocation information’ means, with respect to a 

18 person, any information that is not the content of a 

19 communication, concerning the location of a wireless 

20 communication device or tracking device (as that 

21 term is defined section 3117) that, in whole or in 

22 part, is generated by or derived from the operation 


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1 of that device and that could be used to determine 

2 or infer information regarding the location of the 

3 person. 

4 ‘‘(4) GEOLOCATION INFORMATION SERVICE.— 

5 The term ‘geolocation information service’ means the 

6 provision of a global positioning service or other 

7 mapping, locational, or directional information serv8 ice to the public, or to such class of users as to be 

9 effectively available to the public, by or through the 

10 operation of any wireless communication device, in11 cluding any mobile telephone, global positioning sys12 tem receiving device, mobile computer, or other simi13 lar or successor device. 

14 ‘‘(5) INTERCEPT.—The term ‘intercept’ means 

15 the acquisition of geolocation information through 

16 the use of any electronic, mechanical, or other de17 vice. 

18 ‘‘(6) INVESTIGATIVE OR LAW ENFORCEMENT

19 OFFICER.—The term ‘investigative or law enforce20 ment officer’ means any officer of the United States 

21 or of a State or political subdivision thereof, who is 

22 empowered by law to conduct investigations of, or to 

23 make arrests for, offenses enumerated in this chap24 ter, and any attorney authorized by law to prosecute 

25 or participate in the prosecution of such offenses. 


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1 ‘‘(7) PERSON.—The term ‘person’ means any 

2 employee or agent of the United States, or any State 

3 or political subdivision thereof, and any individual, 

4 partnership, association, joint stock company, trust, 

5 or corporation. 

6 ‘‘(8) REMOTE COMPUTING SERVICE.—The term 

7 ‘remote computing service’ has the meaning given 

8 that term in section 2711. 

9 ‘‘(9) STATE.—The term ‘State’ means any 

10 State of the United States, the District of Columbia, 

11 the Commonwealth of Puerto Rico, and any territory 

12 or possession of the United States. 

13 ‘‘(10) WIRELESS COMMUNICATION DEVICE.— 

14 The term ‘wireless communication device’ means any 

15 device that enables access to, or use of, an electronic 

16 communication system or service, remote computing 

17 service, or geolocation information service, if that de18 vice utilizes a radio or other wireless connection to 

19 access such system or service. 

20 ‘‘(11) COVERED SERVICE.—The term ‘covered 

21 services’ means electronic communication service, re22 mote computing service, or of geolocation informa23 tion service. 


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1 ‘‘§ 2602. Interception and disclosure of geolocation in2 formation 

3 ‘‘(a) IN GENERAL.— 

4 ‘‘(1) PROHIBITION ON DISCLOSURE OR USE.— 

5 Except as otherwise specifically provided in this 

6 chapter, it shall be unlawful for any person to— 

7 ‘‘(A) intentionally intercept, endeavor to 

8 intercept, or procure any other person to inter9 cept or endeavor to intercept, geolocation infor10 mation pertaining to another person; 

11 ‘‘(B) intentionally disclose, or endeavor to 

12 disclose, to any other person geolocation infor13 mation pertaining to another person, knowing 

14 or having reason to know that the information 

15 was obtained through the interception of such 

16 information in violation of this paragraph; 

17 ‘‘(C) intentionally use, or endeavor to use, 

18 any geolocation information, knowing or having 

19 reason to know that the information was ob20 tained through the interception of such infor21 mation in violation of this paragraph; or 

22 ‘‘(D)(i) intentionally disclose, or endeavor 

23 to disclose, to any other person the geolocation 

24 information pertaining to another person inter25 cepted by means authorized by subsections (b) 


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1 through (h), except as provided in such sub2 sections; 

3 ‘‘(ii) knowing or having reason to know 

4 that the information was obtained through the 

5 interception of such information in connection 

6 with a criminal investigation; 

7 ‘‘(iii) having obtained or received the infor8 mation in connection with a criminal investiga9 tion; and 

10 ‘‘(iv) with intent to improperly obstruct, 

11 impede, or interfere with a duly authorized 

12 criminal investigation. 

13 ‘‘(2) PENALTY.—Any person who violates para14 graph (1) shall be fined under this title, imprisoned 

15 not more than five years, or both. 

16 ‘‘(b) EXCEPTION FOR INFORMATION ACQUIRED IN

17 THE NORMAL COURSE OF BUSINESS.—It shall not be un18 lawful under this chapter for an officer, employee, or agent 

19 of a provider of covered services, whose facilities are used 

20 in the transmission of geolocation information, to inter21 cept, disclose, or use that information in the normal course 

22 of the officer, employee, or agent’s employment while en23 gaged in any activity which is a necessary incident to the 

24 rendition of service or to the protection of the rights or 

25 property of the provider of that service, except that a proVerDate Mar 15 2010 05:32 Jun 15, 2011 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H2168.IH H2168

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1 vider of a geolocation information service to the public 

2 shall not utilize service observing or random monitoring 

3 except for mechanical or service quality control checks. 

4 ‘‘(c) EXCEPTION FOR CONDUCTING FOREIGN INTEL5 LIGENCE SURVEILLANCE.—Notwithstanding any other 

6 provision of this chapter, it shall not be unlawful for an 

7 officer, employee, or agent of the United States in the nor8 mal course of the official duty of the officer, employee, 

9 or agent to conduct electronic surveillance, as authorized 

10 by the Foreign Intelligence Surveillance Act of 1978 (50 

11 U.S.C. 1801 et seq.). 

12 ‘‘(d) EXCEPTION FOR CONSENT.— 

13 ‘‘(1) IN GENERAL.—It shall not be unlawful 

14 under this chapter for a person to intercept 

15 geolocation information pertaining to another person 

16 if such other person has given prior consent to such 

17 interception unless such information is intercepted 

18 for the purpose of committing any criminal or 

19 tortious act in violation of the Constitution or laws 

20 of the United States or of any State. 

21 ‘‘(2) CHILDREN.—The exception in paragraph 

22 (1) permits a parent or legal guardian of a child to 

23 intercept geolocation information pertaining to that 

24 child or to give consent for another person to inter25 cept such information. 


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1 ‘‘(e) EXCEPTION FOR PUBLIC INFORMATION.—It 

2 shall not be unlawful under this chapter for any person 

3 to intercept or access geolocation information relating to 

4 another person through any system that is configured so 

5 that such information is readily accessible to the general 

6 public. 

7 ‘‘(f) EXCEPTION FOR EMERGENCY INFORMATION.— 

8 It shall not be unlawful under this chapter for any inves9 tigative or law enforcement officer or other emergency re10 sponder to intercept or access geolocation information re11 lating to a person if such information is used— 

12 ‘‘(1) to respond to a request made by such per13 son for assistance; or 

14 ‘‘(2) in circumstances in which it is reasonable 

15 to believe that the life or safety of the person is 

16 threatened, to assist the person. 

17 ‘‘(g) EXCEPTION FOR THEFT OR FRAUD.—It shall 

18 not be unlawful under this chapter for a person acting 

19 under color of law to intercept geolocation information 

20 pertaining to the location of another person who has un21 lawfully taken the device sending the geolocation informa22 tion if— 

23 ‘‘(1) the owner or operator of such device au24 thorizes the interception of the person’s geolocation 

25 information; 


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1 ‘‘(2) the person acting under color of law is 

2 lawfully engaged in an investigation; and 

3 ‘‘(3) the person acting under color of law has 

4 reasonable grounds to believe that the geolocation 

5 information of the other person will be relevant to 

6 the investigation. 

7 ‘‘(h) EXCEPTION FOR WARRANT.— 

8 ‘‘(1) DEFINITIONS.—In this subsection: 

9 ‘‘(A) COURT OF COMPETENT JURISDIC10 TION.—The term ‘court of competent jurisdic11 tion’ includes— 

12 ‘‘(i) any district court of the United 

13 States (including a magistrate judge of 

14 such a court) or any United States court 

15 of appeals that— 

16 ‘‘(I) has jurisdiction over the of17 fense being investigated; 

18 ‘‘(II) is in or for a district in 

19 which the provider of a geolocation in20 formation service is located or in 

21 which the geolocation information is 

22 stored; or 

23 ‘‘(III) is acting on a request for 

24 foreign assistance pursuant to section 

25 3512 of this title; or 


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1 ‘‘(ii) a court of general criminal juris2 diction of a State authorized by the law of 

3 that State to issue search warrants. 

4 ‘‘(B) GOVERNMENTAL ENTITY.—The term 

5 ‘governmental entity’ means a department or 

6 agency of the United States or any State or po7 litical subdivision thereof. 

8 ‘‘(2) WARRANT.—A governmental entity may 

9 intercept geolocation information or require the dis10 closure by a provider of covered services of 

11 geolocation information only pursuant to a warrant 

12 issued using the procedures described in the Federal 

13 Rules of Criminal Procedure (or, in the case of a 

14 State court, issued using State warrant procedures) 

15 by a court of competent jurisdiction, or as otherwise 

16 provided in this chapter or the Foreign Intelligence 

17 Surveillance Act of 1978 (50 U.S.C. 1801 et seq.). 

18 ‘‘(i) PROHIBITION ON DIVULGING GEOLOCATION IN19 FORMATION.— 

20 ‘‘(1) IN GENERAL.—Except as provided in para21 graph (2), a person providing covered services shall 

22 not intentionally divulge geolocation information per23 taining to another person. 

24 ‘‘(2) EXCEPTIONS.—A person providing covered 

25 services may divulge geolocation information— 


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1 ‘‘(A) as otherwise authorized in subsections 

2 (b) through (h); 

3 ‘‘(B) with the lawful consent of such other 

4 person; 

5 ‘‘(C) to another person employed or au6 thorized, or whose facilities are used, to forward 

7 such geolocation information to its destination; 

8 or 

9 ‘‘(D) which was inadvertently obtained by 

10 the service provider and which appears to per11 tain to the commission of a crime, if such divul12 gence is made to a law enforcement agency. 

13 ‘‘§ 2603. Prohibition of use as evidence of acquired 

14 geolocation information 

15 ‘‘Whenever any geolocation information has been ac16 quired, no part of such information and no evidence de17 rived therefrom may be received in evidence in any trial, 

18 hearing, or other proceeding in or before any court, grand 

19 jury, department, officer, agency, regulatory body, legisla20 tive committee, or other authority of the United States, 

21 a State, or a political subdivision thereof if the disclosure 

22 of that information would be in violation of this chapter. 

23 ‘‘§ 2604. Emergency situation exception 

24 ‘‘(a) EMERGENCY SITUATION EXCEPTION.—Not25 withstanding any other provision of this chapter, any inVerDate Mar 15 2010 05:32 Jun 15, 2011 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H2168.IH H2168

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1 vestigative or law enforcement officer, specially designated 

2 by the Attorney General, the Deputy Attorney General, 

3 the Associate Attorney General, or by the principal pros4 ecuting attorney of any State or subdivision thereof acting 

5 pursuant to a statute of that State, may intercept 

6 geolocation information if— 

7 ‘‘(1) such officer reasonably determines that an 

8 emergency situation exists that— 

9 ‘‘(A) involves— 

10 ‘‘(i) immediate danger of death or se11 rious physical injury to any person; 

12 ‘‘(ii) conspiratorial activities threat13 ening the national security interest; or 

14 ‘‘(iii) conspiratorial activities char15 acteristic of organized crime; and 

16 ‘‘(B) requires geolocation information be 

17 intercepted before an order authorizing such 

18 interception can, with due diligence, be ob19 tained; 

20 ‘‘(2) there are grounds upon which an order 

21 could be entered to authorize such interception; and 

22 ‘‘(3) an application for an order approving such 

23 interception is made within 48 hours after the inter24 ception has occurred or begins to occur. 

25 ‘‘(b) FAILURE TO OBTAIN COURT ORDER.— 


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1 ‘‘(1) TERMINATION OF ACQUISITION.—In the 

2 absence of an order, an interception of geolocation 

3 information carried out under subsection (a) shall 

4 immediately terminate when the information sought 

5 is obtained or when the application for the order is 

6 denied, whichever is earlier. 

7 ‘‘(2) PROHIBITION ON USE AS EVIDENCE.—In 

8 the event such application for approval is denied, the 

9 geolocation information shall be treated as having 

10 been obtained in violation of this chapter and an in11 ventory shall be served on the person named in the 

12 application. 

13 ‘‘§ 2605. Recovery of civil damages authorized 

14 ‘‘(a) IN GENERAL.—Any person whose geolocation 

15 information is intercepted, disclosed, or intentionally used 

16 in violation of this chapter may in a civil action recover 

17 from the person, other than the United States, which en18 gaged in that violation such relief as may be appropriate. 

19 ‘‘(b) RELIEF.—In an action under this section, ap20 propriate relief includes— 

21 ‘‘(1) such preliminary and other equitable or 

22 declaratory relief as may be appropriate; 

23 ‘‘(2) damages under subsection (c) and punitive 

24 damages in appropriate cases; and 


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1 ‘‘(3) a reasonable attorney’s fee and other liti2 gation costs reasonably incurred. 

3 ‘‘(c) COMPUTATION OF DAMAGES.—The court may 

4 assess as damages under this section whichever is the 

5 greater of— 

6 ‘‘(1) the sum of the actual damages suffered by 

7 the plaintiff and any profits made by the violator as 

8 a result of the violation; or 

9 ‘‘(2) statutory damages of whichever is the 

10 greater of $100 a day for each day of violation or 

11 $10,000. 

12 ‘‘(d) DEFENSE.—It is a complete defense against any 

13 civil or criminal action brought against an individual for 

14 conduct in violation of this chapter if such individual acted 

15 in a good faith reliance on— 

16 ‘‘(1) a court warrant or order, a grand jury 

17 subpoena, a legislative authorization, or a statutory 

18 authorization; 

19 ‘‘(2) a request of an investigative or law en20 forcement officer under section 2604; or 

21 ‘‘(3) a good-faith determination that an excep22 tion under section 2602 permitted the conduct com23 plained of. 

24 ‘‘(e) LIMITATION.—A civil action under this section 

25 may not be commenced later than two years after the date 


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1 upon which the claimant first has a reasonable oppor2 tunity to discover the violation. 

3 ‘‘(f) ADMINISTRATIVE DISCIPLINE.—If a court or ap4 propriate department or agency determines that the 

5 United States or any of its departments or agencies has 

6 violated any provision of this chapter, and the court or 

7 appropriate department or agency finds that the cir8 cumstances surrounding the violation raise serious ques9 tions about whether or not an officer or employee of the 

10 United States acted willfully or intentionally with respect 

11 to the violation, the department or agency shall, upon re12 ceipt of a true and correct copy of the decision and find13 ings of the court or appropriate department or agency 

14 promptly initiate a proceeding to determine whether dis15 ciplinary action against the officer or employee is war16 ranted. If the head of the department or agency involved 

17 determines that disciplinary action is not warranted, such 

18 head shall notify the Inspector General with jurisdiction 

19 over the department or agency concerned and shall provide 

20 the Inspector General with the reasons for such deter21 mination. 

22 ‘‘(g) IMPROPER DISCLOSURE IS VIOLATION.—Any 

23 willful disclosure or use by an investigative or law enforce24 ment officer or governmental entity of information beyond 


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1 the extent permitted by this chapter is a violation of this 

2 chapter for purposes of this section.’’. 

3 (b) CLERICAL AMENDMENT.—The table of chapters 

4 for part 1 of title 18, United States Code, is amended by 

5 inserting after the item relating to chapter 119 the fol6 lowing: 

‘‘120. Geolocation information .................................................................. 2601’’. 

7 (c) CONFORMING AMENDMENTS.—Section 3512(a) of 

8 title 18, United States Code, is amended— 

9 (1) in paragraph (2)— 

10 (A) by redesignating subparagraphs (B), 

11 (C), and (D) as subparagraphs (C), (D), and 

12 (E), respectively; and 

13 (B) by inserting after subparagraph (A) 

14 the following: 

15 ‘‘(B) a warrant or order for geolocation in16 formation or records related thereto, as pro17 vided under section 2602 of this title;’’. 

18 SEC. 3. REQUIREMENT FOR SEARCH WARRANTS TO AC19 QUIRE GEOLOCATION INFORMATION. 

20 Rule 41(a) of the Federal Rules of Criminal Proce21 dure is amended— 

22 (1) in paragraph (2)(A), by striking the period 

23 at the end and inserting a comma and ‘‘including 

24 geolocation information.’’; and 

25 (2) by adding at the end the following: 


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1 ‘‘(F) ‘Geolocation information’ has the 

2 meaning given that term in section 2601 of title 

3 18, United States Code.’’. 

4 SEC. 4. FRAUD AND RELATED ACTIVITY IN CONNECTION 

5 WITH OBTAINING GEOLOCATION INFORMA6 TION. 

7 (a) CRIMINAL VIOLATION.—Section 1039(h) of title 

8 18, United States Code, is amended— 

9 (1) in paragraph (2)— 

10 (A) in subparagraph (A), by striking 

11 ‘‘and’’ at the end; 

12 (B) in subparagraph (B), by striking the 

13 period at the end and inserting a semicolon and 

14 ‘‘and’’; and 

15 (C) by adding at the end the following new 

16 subparagraph: 

17 ‘‘(C) includes any geolocation information 

18 service.’’; 

19 (2) by redesignating paragraph (4) as para20 graph (5); and 

21 (3) by inserting after paragraph (3) the fol22 lowing: 

23 ‘‘(4) GEOLOCATION INFORMATION SERVICE.— 

24 The term ‘geolocation information service’ has the 

25 meaning given that term in section 2601.’’. 


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1 (b) CONFORMING AMENDMENTS.— 

2 (1) DEFINITION AMENDMENTS.—Section 

3 1039(h)(1) of title 18, United States Code, is 

4 amended— 

5 (A) in the paragraph heading, by inserting 

6 ‘‘OR GPS’’ after ‘‘PHONE’’; and 

7 (B) in the matter preceding subparagraph 

8 (A), by inserting ‘‘or GPS’’ after ‘‘phone’’. 

9 (2) CONFORMING AMENDMENTS.—Section 1039 

10 of title 18, United States Code, is amended— 

11 (A) in the section heading by inserting ‘‘or 

12 GPS’’ after ‘‘phone’’; 

13 (B) in subsection (a)— 

14 (i) in the matter preceding paragraph 

15 (1), by inserting ‘‘or GPS’’ after ‘‘phone’’; 

16 and 

17 (ii) in paragraph (4), by inserting ‘‘or 

18 GPS’’ after ‘‘phone’’; 

19 (C) in subsection (b)— 

20 (i) in the subsection heading, by in21 serting ‘‘OR GPS’’ after ‘‘PHONE’’; 

22 (ii) in paragraph (1), by inserting ‘‘or 

23 GPS’’ after ‘‘phone’’ both places that term 

24 appears; and 


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1 (iii) in paragraph (2), by inserting ‘‘or 

2 GPS’’ after ‘‘phone’’; and 

3 (D) in subsection (c)— 

4 (i) in the subsection heading, by in5 serting ‘‘OR GPS’’ after ‘‘PHONE’’; 

6 (ii) in paragraph (1), by inserting ‘‘or 

7 GPS’’ after ‘‘phone’’ both places that term 

8 appears; and 

9 (iii) in paragraph (2), by inserting ‘‘or 

10 GPS’’ after ‘‘phone’’. 

11 (3) CHAPTER ANALYSIS.—The table of sections 

12 for chapter 47 of title 18, United States Code, is 

13 amended by striking the item relating to section 

14 1039 and inserting the following: 

‘‘1039. Fraud and related activity in connection with obtaining confidential 

phone or GPS records information of a covered entity.’’. 

15 (c) SENTENCING GUIDELINES.— 

16 (1) REVIEW AND AMENDMENT.—Not later than 

17 180 days after the date of enactment of this Act, the 

18 United States Sentencing Commission, pursuant to 

19 its authority under section 994 of title 28, United 

20 States Code, and in accordance with this section, 

21 shall review and, if appropriate, amend the Federal 

22 sentencing guidelines and policy statements applica23 ble to persons convicted of any offense under section 


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1 1039 of title 18, United States Code, as amended by 

2 this section. 

3 (2) AUTHORIZATION.—The United States Sen4 tencing Commission may amend the Federal sen5 tencing guidelines in accordance with the procedures 

6 set forth in section 21(a) of the Sentencing Act of 

7 1987 (28 U.S.C. 994 note) as though the authority 

8 under that section had not expired. 

9 SEC. 5. STATEMENT OF EXCLUSIVE MEANS OF ACQUIRING 

10 GEOLOCATION INFORMATION. 

11 (a) IN GENERAL.—No person may acquire the 

12 geolocation information of a person for protective activities 

13 or law enforcement or intelligence purposes except pursu14 ant to a warrant issued pursuant to rule 41 of the Federal 

15 Rules of Criminal Procedure, as amended by section 3, 

16 or the amendments made by this Act, or the Foreign Intel17 ligence Surveillance Act of 1978 (50 U.S.C. 1801). 

18 (b) GEOLOCATION INFORMATION DEFINED.—In this 

19 section, the term ‘‘geolocation information’’ has the mean20 ing given that term in section 2601 of title 18, United 

21 States Code, as amended by section 2. 

Æ 


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