Late last month, Tennessee Gov. Bill Haslam signed a bill into law that prohibits the collection of cell phone location data without a warrant. But the new statute contains a dangerous loophole that must be closed.
SB2087 passed the Tennessee House on Apr. 16 by an 87-2-2 margin. It previously passed Senate 28-2. It requires that law enforcement obtain a warrant before collecting location data from any electronic device with a few exceptions.
Except as provided in subsection (c), no governmental entity shall obtain the location information of an electronic device without a search warrant issued by a duly authorized court.
But one provision amended into subsection (c) during the legislative process opens the door for law enforcement to circumvent the warrant requirement in a staggering number of cases.
(c) A government entity may obtain location information of an electronic device without obtaining a search warrant under any of the following circumstances:
(6) If the user has posted the user’s location within the last twenty-four (24) hours on a social media website
On the surface, it seems like a common sense measure. If a person posts their location on a public forum, it would stand to reason that law enforcement should not be prohibited from obtaining that information. But the provision doesn’t restrict the police to obtaining only the publicly posted information. It essentially serves as a wide-open back door allowing cops to track your location from the moment of your post into the distant past or into the foreseeable future, as long as they start within 24 hours. In other words, if somebody posts a photo of dinner and where they ate it, that would then open the door for Tennessee law enforcement to gather any and all location data from that point all the way back to the day the person walked out of the store with the phone, and to continue tracking as long as they want.
Minus this provision, the law provides significant and important privacy protections, but Tennessee lawmakers must take steps to clarify this subsection during the next legislative session. As is, the law leaves gaping holes in those protections.
If lawmakers can close the loophole, the new law will not only protect Tennesseans from state and local law enforcement, it will also have a practical effect on federal spying.
The NSA collects, stores, and analyzes data on countless millions of people without a warrant, and without even the mere suspicion of criminal activity. NSA also 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. Through fusion centers, state and local law enforcement act as information recipients from various federal departments under Information Sharing Environment (ISE). ISE partners include the Office of Director of National Intelligence, an umbrella covering 17 federal agencies and organizations, including the NSA. State and local law enforcement share data up the chain with the feds as well. If they don’t have the data, they can’t share it with the feds.
This location tracking and data sharing shoves a dagger into the heart of the Fourth Amendment. The new law prevents state law enforcement from gathering cell phone location data and sharing it up the chain. It makes information vacuumed up by the feds and shared down the chain inadmissible in court, stopping a dangerous practical effect of NSA spying, assuming people in Tennessee remain vigilant about not voluntarily posting their location on social media.