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The Law of Government Access to Location Data Nicole A. Ozer, Esq. Technology and Civil Liberties Policy Director ACLU of Northern California Links to materials @nicoleozer
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The Law of Government Access to Location Data Nicole A. Ozer, Esq. Technology and Civil Liberties Policy Director ACLU of Northern California Links to.

Mar 26, 2015

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Page 1: The Law of Government Access to Location Data Nicole A. Ozer, Esq. Technology and Civil Liberties Policy Director ACLU of Northern California Links to.

The Law of Government Access to Location Data

Nicole A. Ozer, Esq.Technology and Civil Liberties Policy

DirectorACLU of Northern California

Links to materials @nicoleozer

Page 2: The Law of Government Access to Location Data Nicole A. Ozer, Esq. Technology and Civil Liberties Policy Director ACLU of Northern California Links to.

If you collect location data, law enforcement will eventually come knocking…

• LE aggressively trying to access location data across the country

• Recent ACLU nationwide PRA- 32 states, 205 agencies – only 10 responded that they don’t engage in cell tracking (half in NJ)

Page 3: The Law of Government Access to Location Data Nicole A. Ozer, Esq. Technology and Civil Liberties Policy Director ACLU of Northern California Links to.

Legal Standards Employed to Access Location Data Vary Widely

• “Warrant based on probable cause, as required by law” including County of Hawaii, North Las Vegas, Nevada

• Historical cell site records when “relevant to an ongoing investigation” - Wilson County, NC

• “…comply with whatever the provider

requests” – Weber County, Utah

Page 4: The Law of Government Access to Location Data Nicole A. Ozer, Esq. Technology and Civil Liberties Policy Director ACLU of Northern California Links to.

Good Reason for Business and Personal Concern and

Movement on Mobile Privacy

•Constitutional protections inconsistently applied

•Statutory protections outdated

Page 5: The Law of Government Access to Location Data Nicole A. Ozer, Esq. Technology and Civil Liberties Policy Director ACLU of Northern California Links to.

Why Not Consistent? Constitutional Protection The Fourth Amendment Clearly Protects Data:•At home or on a device in your possession•Judicial search warrant (probable cause) •Notice at time of search

BUT what about if in another’s hands•Couch (accountant)•U.S. v. Miller (bank)•Smith v. Maryland (telephone company)“third party” or “business records” doctrine- established in the

1970s.

Page 6: The Law of Government Access to Location Data Nicole A. Ozer, Esq. Technology and Civil Liberties Policy Director ACLU of Northern California Links to.

Fitting Mobile Privacy Into Outdated Statutes

2004: Facebook launched1998: Google founded1994: Yahoo & Amazon founded1990: World Wide Web created & cell phones the size of bricks1986: ECPA U.S. Electronic Communications Privacy Act

Page 7: The Law of Government Access to Location Data Nicole A. Ozer, Esq. Technology and Civil Liberties Policy Director ACLU of Northern California Links to.

In 1986, cell phones looked like this…

•“electronic communication service or a “remote computing service” ?

•Is all location data collected by LBS “content” or “transactional data”?

•Does the fact that cell phones automatically transmit information make them “tracking devices” subject to a standard of probable cause?

Page 8: The Law of Government Access to Location Data Nicole A. Ozer, Esq. Technology and Civil Liberties Policy Director ACLU of Northern California Links to.

Courts Split on Location Info…

SDNY- Compare 460 F. Supp. 2d 448 (S.D.N.Y. 2006) (Kaplan, D.J.) (permitting real time tracking w/o probable cause) ; 2009 WL 159187 (S.D.N.Y. 2009) (McMahon, D.J.) (probable cause required for real time tracking).

EDNY- Compare 396 F. Supp. 2d 294 (E.D.N.Y. 2005) (Orenstein, M.J.) (probable cause for prospective tracking) and 2009 WL 1530195 (E.D.N.Y. 2009) (Pollak, M.J.), (probable cause for prospective tracking, reversed by Judge Garaufis) with 2009 WL 1594003 (E.D.N.Y. 2009) (Garaufis, D.J.) (no probable cause necessary for prospective tracking)

Third Circuit – Can require probable cause search warrant before accessing cell phone location data. September 7, 2010.

Fifth Circuit- Texas district court judge- warrant required for 60 days of historical cell data- currently on appeal to Fifth Circuit

Page 9: The Law of Government Access to Location Data Nicole A. Ozer, Esq. Technology and Civil Liberties Policy Director ACLU of Northern California Links to.

U.S. v. Pineda-Moreno. (9th Cir. 2010) 591 F.3d 1212 (warrantless installation of GPS device on undercarriage of car while in defendant’s driveway constitutional).

United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010) rehearing denied 5-4, March 2010 (warrantless installation of GPS device unconstitutional- mosaic theory).

The sequence of a person’s movements can reveal still more; a single trip to a gynecologist’s office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story. A person

who knows all of another’s travels can deduce whether he is a weekly church-goer, a heavy drinker, a regular at the gym, an unfaithful husband, an

outpatient receiving medical treatment, an associate of particular individuals or political groups- and not just one such fact about a person,

but all such facts.

Page 10: The Law of Government Access to Location Data Nicole A. Ozer, Esq. Technology and Civil Liberties Policy Director ACLU of Northern California Links to.

January 23, 2012- Bit More ClaritySupreme Court upholds DC Circuit in U.S. v. Jones- unanimously rules police violated Constitution when placed GPS device on car and monitored 28 days – split reasoning

•Alito concurrence urges legislative action “best solution” to address technological change

•Sotomayor concurrence questions 3rd party doctrine “may be necessary to reconsider…ill suited to the digital age.”

Page 11: The Law of Government Access to Location Data Nicole A. Ozer, Esq. Technology and Civil Liberties Policy Director ACLU of Northern California Links to.

Federal Movement• Bipartisan GPS Act- warrant protection, consent before business collection. Wyden/Kirk, Chaffetz/Sensenbrenner• Update ECPA – Leahy. Hearings in House/Senate• Mobile privacy hearings in Senate – Franken•FTC/FCC roundtable on mobile location, Commerce/White House- mobile will be early on the agenda

Page 12: The Law of Government Access to Location Data Nicole A. Ozer, Esq. Technology and Civil Liberties Policy Director ACLU of Northern California Links to.

State Movement 11 States considering location-related bills, including California

•Require a probable cause warrant for GPS •Require a probable cause warrant for all location data – historical and perspective

Page 13: The Law of Government Access to Location Data Nicole A. Ozer, Esq. Technology and Civil Liberties Policy Director ACLU of Northern California Links to.

Position Your Company

• Build in the policies- Come Back With a Warrant!

• Support Privacy Law Upgrades

• Design for Privacy - business case studies and tips at www.dotrights.org/businesses

“The last thing these companies want is for people to be afraid of their phones” - Chaffetz

Page 14: The Law of Government Access to Location Data Nicole A. Ozer, Esq. Technology and Civil Liberties Policy Director ACLU of Northern California Links to.

Links to materials @nicoleozerwww.aclunc.org/tech

Nicole A. Ozer, Esq.Technology and Civil Liberties Policy

DirectorACLU of Northern California