Last week, Sen. Ron Wyden (D-Oregon) announced a legislative proposal concerning the tracking of individuals’ location through mobile devices (also called geotracking). CNet followed up with Wyden and did a Q&A on mobile privacy:
It may come as a surprise to know that police generally need a warrant to search your house, but not to track your whereabouts through your cell phone. This is what Sen. Ron Wyden, an Oregon Democrat who has become the Senate’s leading champion of electronic privacy, wants to change. Wyden recently spoke with CNET in an interview transcribed below about his forthcoming legislation. […]
This time, Wyden is looking not just at cell phones, but also at the police practice of planting a physical GPS bug on someone’s vehicle without obtaining a search warrant from a judge first. This, he says, violates the Fourth Amendment right to be free from “unreasonable” searches. (See our report on how courts have been divided on whether to require search warrants.)
What about the need for legislation? Isn’t there an argument that you should let the common law of privacy develop, that you should let the courts that are spending a lot of time on this figure this out, and we’ll get the best approach that way?
Wyden: First of all, I think this is a policy issue that shouldn’t just be bumped to the court system. Number two, the courts are certainly wrestling with this thus far in a way that isn’t bringing a lot of clarity to this issue. As a result, the legitimate interests… people’s legitimate right to privacy — and ensuring the country, at a time where there are serious threats, the collective security is protected as well. The balance is not being reached particularly well given this situation of just allowing it to percolate it through the courts.
Now, some may say: Well, let’s sit around and wait for the U.S. Supreme Court to take it, but good luck with that. They’ve got a busy agenda… What I’ve tried to do is build on some of the sensible principles that have helped resolve this issue in the past (including) probable cause. I think we’d be better off trying to forge a consensus, get bipartisan support, and do what legislators are supposed to do. It’s possible that the Supreme Court could deny standing and all sorts of other procedural reasons, and the issue could go on without being resolved. […]
The Justice Department said in briefs before the Third Circuit that it needs these techniques and it doesn’t think the probable cause warrant standard is constitutionally necessary. Are you worried about pushback from them? Have you had any discussions with them?
Wyden: We’ve had a number of discussions with the Justice Department already. They’re very much aware of the bill. My sense is — and we’ll see as we get the bill introduced — we’ll see something of a division of opinion in terms of what we’re proposing. I think there are some in the Justice Department and law enforcement and intelligence generally who think that this field really does need some clarity and there’s a role for precisely what we’re doing.
And then there are some who won’t be in favor of legislation and will largely say, “look it’s a dangerous time and we need to get our hands on all of this information.” To that I say: that kind of attitude will not produce the kind of certainty and predictability that we need to address legitimate national security interests and a respect for people’s privacy. This is more likely to cause confusion and frustration of interests in both areas.