State Location Privacy Survey
In just the last three years, state legislatures across the country have made important strides in securing privacy protections for location records generated by cell phones and other electronic devices. Those are the records that show where you are and where you have been based on communications between your mobile device and the nearest cellular tower, and other electronic location tracking techniques such as GPS.
Currently, federal law does not require law enforcement or government officials to obtain a warrant prior to accessing individual location records. Rep. Chaffetz and Sen. Wyden have introduced the GPS Act (H.R. 491, S. 237), legislation that would provide uniformity and extend an important privacy protection nationwide. And in the laboratories of democracy, the outdated practice of accessing sensitive location data without a warrant is facing significant push back.
Levels of Protection
We’re seeing three categories of location privacy laws enacted or under consideration in state houses:
1. Full location privacy laws: This category of laws protects both current and past location information. Already, Maine, Montana, New Hampshire, and Utah have passed robust location privacy legislation. Legislation is pending in California, Massachusetts Minnesota, Mississippi, Missouri, North Carolina, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Vermont, and West Virginia. Legislation is also pending in Connecticut for a location privacy bill, but the proposed language of the bill is not yet available.
2. Real-time location privacy laws: This category of laws protects the privacy of an individual’s current or real-time location, but not their past location. Illinois, Indiana, Maryland, Minnesota, and Wisconsin have passed this type of law, and a law of this type is under consideration in Ohio.
3. Weak location privacy laws: Three states, Colorado, Tennessee, and Virginia have passed weak privacy laws. In Colorado and Tennessee, the laws include a loophole wherein a government entity does not require a warrant for location information obtained directly from a service provider. In Virginia, the law does not require a warrant based on probable cause but instead a lower standard of information that is relevant and material to an ongoing criminal investigation.
Exceptions to Warrant Requirement
The state laws also include various exceptions. We’re seeing six categories of exceptions:
1. Consent: Government entities can retrieve location data with the consent of the electronic device owner.
2. Emergency call from device: A government entity can access the location of a device when receiving a 911 or similar call.
3. Exigent or Emergency Circumstances: This exception allows a government entity to use location information when officials believe there is an immediate danger of death or serious physical injury.
4. Device stolen or abandoned: A government entity can retrieve location data to find a device that was stolen or abandoned, including at the behest of its owner.
5. Location voluntarily disclosed / publicly available: A government entity can use information posted to social media websites or voluntarily disclosed in some other manner.
6. To aid in locating a missing person: If a government entity suspects a person is missing, this exception permits locating the missing person using their electronic device.