House approves cell phone locator bill over constitutional objection | Arkansas Blog

Friday, February 27, 2015

House approves cell phone locator bill over constitutional objection

Posted By on Fri, Feb 27, 2015 at 11:43 AM

click to enlarge IN THE MINORITY AGAIN: Rep. John Walker again made an eloquent legal argument in a losing cause on access to phone records. - FILE PHOTO
  • File photo
  • IN THE MINORITY AGAIN: Rep. John Walker again made an eloquent legal argument in a losing cause on access to phone records.
The Arkansas House today approved Rep. Rebecca Petty's bill to require telephone companies to provide location information for wireless phones in response to a "call for emergency services or in an emergency situation that involves the risk of death or serious physical harm." The vote was 70-8.

The bill was sponsored by Rep. Rebecca Petty. The mother of a murder victim, she's already passed legislation to expand the number of family members who can witness an execution. She's also filed legislation for alternative execution methods and said she'd consider the firing squad.

The latest bill, which drew opposition from Rep. John Walker on constitutional grounds, was prompted by the case of Kelsey Smith, a Kansas abduction victim whose body was eventually located by cell phone ping though it took several days for Verizon to provide phone records. In Smith's case, evidence was strong that foul play existed when she disappeared. Federal law already authorizes companies to provide such information in emergencies, but doesn't require it. There's a question of whether resistance or simple incompetence slowed Verizon's response in the Smith case. Several states have adopted similar laws; congressional efforts to make it federal law have failed so far.

Walker noted some reluctance to speak in opposition because of the emotional nature of the case and the sponsor's own personal tragedy. But he said the Constitution's protections against search and seizure were well-established and that the courts were always open when evidence of a crime existed to provide the necessary authority to search phone information.

As written, he said, a single police officer could use the law to determine whereabouts of anyone and that could also prompt a search for "whatabouts."

Rep. Julie Mayberry asked about delays in finding missing people. "Just because someone is missing doesn't mean a crime has been committed," Walker responded. If there is evidence of foul play, permission to see phone records should be easy to obtain. He said the bill presented too many possibilities for abuse. "I don't think it is appropriate for us to give power to hundreds of thousands of persons who work as policemen to be able to invade and rape the 4th Amendment and the Bill of Rights."

Mayberry asked if Walker was saying he'd rather wait four days than 45 minutes to "find a loved one." He said that's not the issue. "If there's a presumption of harm, use the process established by law and followed for years."

The legislature should not be moved by "the passion of the moment," he said. 

"If i believe my child has been harmed, I go to authorities and give information I have that forms the basis for that belief. If authorities believe a possible crime has been committed, they can go to a magistrate and get the necessary authority."

Otherwise, he said, the legislature is "giving license to anybody in the world upon having a friendly policeman to locate us wherever we are whatever the circumstances may be."

Rep. Kim Hendren said Walker's argument gave him "pause" and wondered if there was a way to amend the bill to make it acceptable. Walker said it deserved more study to find a way balance Petty's concerns with the 4th amendment, though he said it might not be possible.

As it is, he said, the bill "allows any policeman to invade my privacy by going to the phone company and saying let me know where Representative Walker is. He may have committed a crime. That's just too broad."

The vote indicated few agreed. 

Wired has a good examination of the issue related to efforts to pass this requirement on a national level. The key element in all the bills is that there's no independent arbiter to judge a police officer's representation that an emergency exists.




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