WASHINGTON D.C. -- A U.S. senator wants to require police agencies to report regularly on their collection of cell phone call data and force police to obtain a warrant before they collect bulk records from cell phone transmission towers.
Following a joint 10 News/USA TODAY/Gannett investigation into police surveillance techniques, U.S. Sen. Edward Markey, D-Mass., said his proposed legislation would increase transparency about the collection of such data and "update the Fourth Amendment for the 21st century wireless world".
Markey's proposal followed the release of detailed reports from each of the nation's biggest wireless carriers saying they received more than one million requests for cellphone data from law enforcement in 2011, and again in 2012.
In a related story Monday, USA TODAY reported that dozens of local and state police agencies are capturing information about thousands of wireless users at a time, whether they are targets of an investigation or not, according to public records.
Many police agencies, responding to inquiries from USA TODAY and Gannett journalists about their use of cell phone data, said access to identity, location and call logs is an important crime-fighting tool. But, some privacy advocates and lawmakers expressed concern about checks and balances and about what happens to data from cell phone users who are not police targets.
In their response to Markey, the wireless companies said they received about 9,000 requests for cell "tower dumps" from local, state or federal law enforcement agencies in 2012. Those tower dumps show police which cell phones connected to a particular tower over a defined span of time.
U.S. Rep. Jason Chaffetz, R-Utah, said he and colleagues also have been working on these issues, proposing an array of legislation requiring probable cause prior to the release of cell phone records. They also, however, have raised concerns about criminals, businesses and other people or entities being able to access private records via cell phones.
"This is not just about law enforcement," Chaffetz said.
Markey's proposed legislation would require law enforcement to get a search warrant, and show probable cause, to get cell phone location data or cell phone data in bulk, as they do using tactics such as a cell tower dump.
Additionally, Markey said the legislation would require regular disclosures from law enforcement agencies about the nature and volume of their cell phone data requests and require the Federal Communications Commission to set rules about how long wireless carriers can keep customers' personal information. Currently, the wireless carriers have varying policies and all will provide the stored data to police if legally requested.
In emergencies, such as searching for a missing person, Markey says his legislation would require police to later submit a "signed, sworn statement" from the law enforcement agency documenting why they needed emergency access to the data.
Christopher Calabrese, legislative counsel for the American Civil Liberties Union, said generally those are among measures that his organization would like to see passed.
"We want to create appropriate rules so that the police can do their jobs, but do it without trampling over Constitutional rights," Calabrese said. Updating search and seizure guidelines for modern times is overdue. "The fact is, technology changes very fast and often the law does not."
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