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To Governor’s Desk: New Hampshire Bill Banning Warrantless Location Tracking Passes

CONCORD, N.H. (July 7, 2015) – A bill that would prohibit law enforcement from obtaining location data from electronic devices without a warrant in most cases cleared the state legislature and now heads to the governor’s desk. The legislation would not only protect 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 would prohibit 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 bill would also prohibit law enforcement from placing tracking devices on any person, or their property, without a warrant.

HB468 passed the New Hampshire House by a voice vote on March 26. The Senate passed an amended version by a voice vote on June 4. On July 1, both houses agreed to a conference report, sending the bill on to Gov. Maggie Hassan’s desk. Once the legislature officially transmits the bill, Hassan will have five days (excluding Sundays) to sign or veto. If she takes no action, HB468 will automatically become law.

The legislation 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.

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

IMPACT ON FEDERAL PROGRAMS

HB468 would not only limit the actions of state and local law enforcement in New Hampshire, it would also represent an important first step in addressing the federal surveillance state. By requiring a warrant, the bill would prohibit state and local law enforcement agencies from “obtaining” warrantless data shared with them by federal agencies like the NSA.

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 would also limit the amount of data available that could 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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