Lawmakers wrestle with cellphone tracking for missing persons

Lawmakers are eyeing a deal with privacy advocates on a bill that would give law enforcement officials more access to location data from mobile phones.

The Kelsey Smith Act, named for a young Kansan who was kidnapped and murdered almost a decade ago, would require mobile phone providers to give location data to law enforcement agencies in some emergency situations.

{mosads}But privacy advocates on the left and the right are worried about the proposal, fearing it would invite abuse. They have worked to slow down a version of the bill in the Senate that lacks additional protections.

“Senator [Pat] Roberts is still working with [Sen. Richard] Blumenthal and others to find a way forward,” wrote Sarah Little, a spokeswoman for Roberts (R-Kan.), in an email. Blumenthal’s (D-Conn.) spokeswoman, Maria McElwain, said that he “continues to work” with Roberts. 

Roberts is the lead sponsor of the bill in the upper chamber. Another Kansas Republican, Rep. Kevin Yoder, is leading the charge in the House, where a version of the bill failed to pass earlier this year. 

“We are hopeful that a deal can be reached in the fall and that all the interested parties are eager to get back to the negotiating table in September,” said C.J. Grover, a spokesperson for Yoder, in an email.

The legislation is named for Kelsey Smith, an 18-year-old who was abducted from a Target parking lot in 2007. It took days for her wireless carrier to provide her location; by the time her body was found, she had been raped and killed. 

“What took so long to find Kelsey?” said Smith’s mother, Missey Smith, testifying to Congress earlier this year. “One word: Verizon.” 

Advocates have passed legislation similar to the federal Kelsey Smith Act in more than 20 states, but the plan has stalled repeatedly in Congress.

When House leaders brought the bill up in May under suspension of the chamber’s rules, it failed to secure the two-thirds majority it needed to pass. The bill went down to defeat while Smith’s parents watched from the House gallery. 

The next month, Senate Commerce Committee Chairman John Thune (R-S.D.) pulled the bill from the panel’s agenda days before a scheduled markup.

Privacy advocates insist that the bill needs additional protections for cellphone users before it can become law.

“We all want law enforcement to be able to respond to emergencies, including by locating people who may be in danger,” said Nathan Freed Wessler, a staff attorney with the American Civil Liberties Union’s Speech, Privacy and Technology Project. “Our concern, though, is that this bill as it was introduced opens up a loophole that provides opportunities for abuse without proper oversight and protection.”

In particular, advocates want to require that police officers seek a judge’s review of their requests after the fact, something that existed in an earlier version of the legislation. 

“If you’re going to have a bill that gives the law enforcement a federal mandate to do whatever they want with this information, there has to be some sort of post-fact review to re-verify that there’s not abuse,” said Nathan Leamer, a policy analyst for the conservative R Street Institute, a group that helped defeat the bill on the House floor in May. 

Privacy groups are pushing to add a provision to the law that would mandate that the owner of a mobile phone whose location was tracked be notified of the decision. Wessler said police departments should also have to report “basic data” about their requests.

Supporters of the bill counter that law enforcement would be given just enough data to find an individual in trouble.

“We’re not asking for the call information, we’re just asking where is that device,” said Missey Smith during her congressional testimony. “I don’t care who you’re texting, I don’t care the numbers you’re calling, I don’t care what pictures you’re taking.”

But privacy advocates say there is sensitive information in location data that should be protected. 

“It could reveal if someone is in a psychiatrist’s office, in an abortion clinic, at a political rally — whether they’re home in their bedroom or in another bedroom down the street,” Wessler said. 

Backers of The Kelsey Smith Act say there are no documented examples of police officers abusing the system in states where the law is on the books.

The version of the bill in the Senate would have to be considered by the Commerce Committee before going to the floor. Leamer questioned whether there was time to bring the bill back through the legislative process in time to get the approval of the full House chamber, but said some form of privacy protections are non-negotiable.

“If it does come to the floor,” he said, “it has to have these amendments.”