ACLU Vermont Executive Director Allen Gilbert and Congressman Peter Welch discuss the positive impact of Welch's proposed legislation on privacy rights. VTD/Josh Larkin
Rep. Peter Welch, D-Vt., said today in a statewide press tour that he would introduce federal legislation to clarify rules for GPS devices that can be used to track citizens. The two-part bill, called the Geolocation, Privacy and Security (GPS) Act (H.R. 2168), covers use both by private companies and by law enforcement.
The announcement comes in the wake of a public records request lawsuit filed by the Vermont ACLU against the Attorney General’s office. The ACLU was denied its request for information about whether law enforcement agencies in Vermont use cell phone GPS to track persons under investigation. The state contended that information about police investigations must be kept secret; the ACLU lost the case and no records were released.
Allen Gilbert, executive director of the Vermont ACLU, said the information obtained in their research for the court case are telling: The Attorney General has been allowing police, without warrants, to electronically monitor Vermonters who are under investigation. The devices enable law enforcement to follow the locations of potential suspects.
Police have used a secretive inquest process through the Attorney General’s office to obtain subpoenas for this electronic location data, which is available through cell phone providers.
Gilbert said such cell phone tracking practices may be a violation of the Fourth Amendment, which is designed to protect Americans from unlawful searches and seizures.
Because inquest proceedings are closed and not outlined in statute, “it’s difficult to know what standards, if any, have to be met in order for law enforcement to get information through this process,” Gilbert said.
Cellular technology and vague privacy laws are a bad combination, Welch said.
“There is GPS information in the cell phones that allows the telephone company to track your movements constantly, within 10 feet of where you are” said Welch. This information can be very helpful to the consumer at times, such as using the phone as a GPS module or during 911 calls, he said, but it makes it much easier for personal privacy to be violated.
“The technology has accelerated so quickly that it’s gotten ahead of the law,” said Welch. The federal legislation would “prohibit companies from accessing your information without your consent,” he said. It would also force law enforcement to “follow existing constitutional protections and get a warrant from a court authorizing the release of this information.” The legislation would also require law enforcement to follow the warrant process for other GPS tracking devices as well.
Vermont Attorney General William Sorrell said in an interview that “Vermont law enforcement does, on occasion, access GPS information.” Cell phone companies voluntarily enter the inquest process. The secret inquest proceedings are only used when cell phone providers do not comply with subpoenas, he said. Police then initiate inquest proceedings, and, in most cases, the inquests are conducted with judicial oversight — a judge, prosecutor and court reporter must be present. Prosecutors must then seek permission from a judge to use any evidence that has been obtained through an inquest.
Sorrell said that the ACLU did not have the right to access records regarding criminal investigations, and so his office would not release them. The use of inquests, he said, is standard operating procedure in Vermont.
“If the Welch legislation says that this may only be done through a search warrant, that would be a change in practice in Vermont,” Sorrell said.
The new legislation would require law enforcement to obtain warrants. Welch said removing ambiguity in the law would clarify privacy protections for law enforcement and improve the ability of cell phone companies to protect their customers’ privacy.
As cell phones are adapted virtually universally, Welch said it is important to protect “information that is fundamentally private.”
Gilbert spoke about the Fourth Amendment’s long history back to colonial times.
“The right to be left alone by government and for government to follow the law when it wants information about us and get a warrant, it’s just fundamental to our American DNA,” said Gilbert.
As technology improves, Gilbert said, privacy issues become more and more complex. What was once locked away in a filing cabinet is now being broadcast over the airwaves.
“It’s become a wild west of confusion out there,” Gilbert said, “and privacy is the victim.”
Gilbert thanked Welch and said the ACLU was fully behind the legislation, which will be introduced jointly by Welch and Rep. Jason Chaffetz, R-Utah.
According to a press release from Welch’s office, the “GPS” Act would:
The GPS Act would:
* Provide clarity for government agencies, commercial service providers, and the public regarding the legal procedures and protections that apply to electronic devices that can be used to track the movements of individual Americans
* Require the government to show probable cause and get a warrant before acquiring the geolocational information of a U.S. person, while setting out clear exceptions such as emergency or national security situations or cases of theft or fraud
* Create criminal penalties for surreptitiously using an electronic device to track a person’s movements that parallel those for wiretapping
* Prohibit commercial service providers from sharing customers’ geolocational information with outside entities without customer consent
Sen. Patrick Leahy, D-Vt., has introduced a similar bill in the Senate.
Correction: This story incorrectly stated that the ACLU won the public records request case against the state in court. The First Amendment group lost the case. We also incorrectly stated that the AG forces companies to participate in the inquest process. Sorrell said, “We don’t get push back from [cellular providers].”
Full disclosure: Allen Gilbert, executive director of the Vermont ACLU, is a board member of the Vermont Journalism Trust, VTDigger.org’s parent organization. The Vermont ACLU also represented Anne Galloway, editor of VTDigger.org, in a public records lawsuit against the Town of Hartford for information about the arrest of Wayne Burwell.
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Meanwhile, Welch continues to support GPS-guided drone bombings on innocent civilians in Libya.
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Hey Peter, it about time.
How do you think our tiny little state leads the nation in police misconduct? Not by physical misconduct but by violating our fourth amendment rights. We’re three and a half times the national average. NPMSRP http://www.injusticeeverywhere.com
Thats right, Vermont police are allowed to just lie to judges getting them to sign almost anything. I am sad to say that’s exactly what they do. I mean who’s going to find out?
In some cases, the police in Vermont will just put you under survaillance without a warrent, known as “Warrentless Survaillance.” Its a sport for them. This is exactly the activity which puts our state at the top of the list for police misconduct. It is a gross violation of our 4th amendment rights. This is not just a “One off” scenario, but rather a repeat pattern of behavior which our beloved Attorney General promotes most lavishly. It is also a part of his “Misinformation Campaign.”
I had to report to the City Attorney in Burlington that officers were unequivically following me around town, both on foot, and by car. We could also tell by certain phone calls we would get from Champlain College staff, that our internet activity (in our private home) was also being monitored. It wasn’t only being monitored, but spread all over town in what appeared to be more misinformation sponsored by the police.
They might have scared some judge into signing the warrent because we lived near Christ the King school in ward six Burlington, otherwize it was “Warrentless.”
Vermont Police have been violating my 4th amendment rights now for two and a half years. So I decided to investigate it and document my results. What I found was incredible.
The Attorney General in Vermont is not a “Constitutionalist.” He is in the pockets all Vermont employers and has no “Civil Rights Unit.”
What sadness to discover that the same people we pay to protect us, are in fact spying on us.
Its not so much about the law, as it is about those who enforce it, the police. Corruption in Vermont law enforcement has risen sharply within the past fifteen years.
I’m glad I never used my education in criminal justice to become a part of this corrupt and dishonest institution. Law enforcement has changed. They’re not here to protect you as much as they are to induct you into the system. The training at the academy proves it.
There was a time when police were different. We had true peace officers who were not at all motivated NOR trained politically. Its all about money now and misinforming the public.
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The answer to so many privacy issues is breath taking in its simplicity and breadth: make all personal information generated by a natural person the copyrighted property of that natural person – and make it illegal to require a person waive those copyrights for any service or product of any kind.
My life belongs to me and not to the best organized database in town.
Now on to Welch: he spent two years in DC where he and his DC Democratic Surrender Machine buddies did nothing but roll over and show their soft underbellies to the Republican Party. For that matter Welch spent his time actually doing the bidding of the worst of the radical right wing of our nation’s politics.
You do remember ACORN, don’t you? That was an organization of people who were out in force making sure the economically disenfranchised and politically dis-empowered were being represented in local, state and federal government decisions across the country. But Welch couldn’t wait to show his radical anti-progress bona-fides by jumping on and helping destroy ACORN based entirely on PROVEN fabrications – and Welch to this day stands behind each and every lie he used to support this assault on the working American people.
Of course now that he knows nothing he does will be seriously considered – well Welch will run around trying to replace serious action with press releases.
Voting for Welch next year is nothing more than voting for the Bush/Obama/Republican/Democratic political machine that has foisted a radical anti-people political agenda on us.