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New Hampshire Bill Banning Warrantless Location Tracking Signed into Law

CONCORD, N.H. (July 24, 2015) – A bill prohibiting law enforcement from obtaining location data from electronic devices without a warrant in most cases became law in New Hampshire this week. The new law not only protects privacy in New Hampshire, but also takes an important first step in addressing the growing federal surveillance state.

Rep. Neal Kurk introduced House Bill 468 (HB468) back in January. The legislation prohibits any government agency from obtaining “location information from an electronic device without a warrant issued by a judge based on probable cause and on a case-by-case basis” with only a few exceptions. The law also prohibits law enforcement from placing tracking devices on any person, or their property, without a warrant.

Governor Maggie Hassan signed HB468 into law on July 20. The new law immediately went into effect, retroactive to July 1.

The legislation passed both houses of the New Hampshire State Legislature on voice votes.

HB468 allows for several exceptions to the warrant requirement. Police can obtain location information with the owner’s consent, or the consent of the guardian of a minor child. Law enforcement can also obtain location information without a warrant if the officer “reasonably believes that an emergency involving immediate danger of death or serious physical injury to a person requires the disclosure.” Other exceptions include locating an E-911 call, and pursuant to a legally-recognized exception to the warrant requirement.

The new law not only applies to federal agencies as well as state and local government entities, but with a caveat. “A federal government agency to the extent that federal statute preempts such application.

Any person working for a federal, state, or local agency who purposely violates the law can be charged with a class B misdemeanor.

IMPACT ON FEDERAL PROGRAMS

It remains unclear to what extent the new law will directly affect federal law enforcement activities in the state in practice. Under current legal jurisprudence, and with federal immunity extended to its agents, that impact will likely prove limited. Even so, the law represents an important first step in addressing the federal surveillance state. By requiring a warrant, the bill prohibits state and local law enforcement agencies from “obtaining” warrantless data shared with them by federal agencies like the NSA. In other words, even if the feds collect location information in New Hampshire, state and local law enforcement can no longer get or utilize it.

Information released by Edward Snowden and other whistleblowers revealed the NSA tracks the physical location of people through their cellphones. In late 2013, the Washington Post reported that NSA is “gathering nearly 5 billion records a day on the whereabouts of cellphones around the world.” This includes location data on “tens of millions” of Americans each year – without a warrant.

We also know the NSA shares this information with state and local law enforcement. Reuters revealed the extent of such NSA data sharing in an August 2013 article. According to documents obtained by the news agency, the NSA passes information to police through a formerly secret DEA unit known Special Operations Divisions and the cases “rarely involve national security issues.” Almost all of the information involves regular criminal investigations, not terror-related investigations.

In other words, not only does the NSA collect and store this data, using it to build profiles. The agency encourages state and local law enforcement to violate the Fourth Amendment by making use of this information in their day-to-day investigations.

By prohibiting wholesale collection of location data without a warrant, HB468 limits the amount of data available that can find its way into federal data bases.

As a result of the rapid evolution of information sharing, locally-gathered information doesn’t remain “local” for very long. With new intelligence sharing systems like these fusion centers, along with Joint Terrorism Task Forces and the ISE, information collected by local police in any city or small town in America can now quickly end up in federal intelligence databases. That means your information becomes accessible across the country with a click of a mouse.

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