SALT LAKE CITY, Utah (March 3, 2023) – On Tuesday, the Utah Senate gave final approval to a bill that would limit warrantless geofence location tracking and require detailed reporting on geofence warrants. The enactment of the legislation would not only protect privacy in Utah; it would also hinder the growth of the federal surveillance state.
Rep. Ryan Wilcox (R) and Sen. Todd Weiler (R) filed House Bill 57 (HB57) in December. The legislation would require police to get a warrant before obtaining reverse-location information for electronic devices within a geofence or by using cell cite records in most situations.
On Feb. 28, the Senate passed HB57 by a 26-0 vote. The House previously passed the measure by a 70-0 vote. The bill now goes to Gov. Spencer Cox’s (R) desk for his consideration.
In effect, the passage of HB57 would limit a process called “geofencing.” This technique allows police to search broad geographical areas and identify every electronic device in the area. They can then take that data and determine the identity of individuals near a given place at a given time. In practice, police use Google location data to engage in massive fishing expeditions and subject hundreds, if not thousands, of innocent people to police location tracking. According to the New York Times, federal agents first utilized the practice in 2016. According to the report, broadly construed geofencing warrants help police pinpoint possible suspects and witnesses in the absence of other clues. Google employees said the company often responds to a single warrant with location information on dozens or hundreds of devices.
Police can gather similar information using cell-site simulators, often called “stingrays” or by obtaining cell tower information from a communications company.
HB57 also includes robust reporting requirements for reverse-location warrants. Law enforcement agencies would be required to report the number of reverse-location warrants requested, the number granted, the number of investigations that used reverse-location data, and the number of times reverse-location information was obtained under an exception to the warrant requirement.
The transparency requirements will keep law enforcement agencies accountable and expose the reality of geofence location data gathering. As the saying goes, sunlight is the best antiseptic. Transparency often creates the momentum needed to drive future change.
STEP BY STEP
Utah has some of the best laws limiting government surveillance in the country. The state built these robust privacy protections with a step-by-step strategy that started in 2014.
That year, the Electronic Information Privacy Act was signed into law, making any electronic data obtained by law enforcement without a warrant inadmissible in a criminal proceeding. It also prohibited Utah law enforcement from obtaining phone location data without a warrant.
That same year, the state also restricted warrantless drone surveillance.
In 2019, the state expanded the Electronic Information Privacy Act to ban warrantless access to data stored in the “cloud.”
In 2021, the state expanded the Electronic Information Privacy Act again to require police to get a warrant before accessing communication service provider networks.
And in 2022, the state expanded restrictions on drone surveillance to also include “radar, sonar, infrared, or other remote sensing or detection technology.”
If Gov. Cox signs HB57, it will further increase protections against unwarranted government surveillance in Utah.
This step-by-step approach demonstrates an important strategic point. Significant reforms generally take time and protracted efforts. You don’t generally get everything fixed in a single bill. Most of the time you don’t get a whole loaf of bread in a single legislative session. But with persistence, you can get enough slices of bread over time to make an entire loaf.
IMPACT ON FEDERAL SURVEILLANCE PROGRAMS
The feds can share and tap into vast amounts of information gathered at the state and local level through fusion centers and a system known as the “information sharing environment” or ISE. In other words, stingrays create the potential for the federal government to track the movement of millions of Americans with no warrant, no probable cause, and without the people even knowing it.
Fusion centers were sold as a tool to combat terrorism, but that is not how they are being used. The ACLU pointed to a bipartisan congressional report to demonstrate the true nature of government fusion centers: “They haven’t contributed anything meaningful to counterterrorism efforts. Instead, they have largely served as police surveillance and information sharing nodes for law enforcement efforts targeting the frequent subjects of police attention: Black and brown people, immigrants, dissidents, and the poor.”
Fusion centers operate within the broader ISE. According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators…have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant. Known ISE partners include the Office of Director of National Intelligence which oversees 17 federal agencies and organizations, including the NSA. ISE utilizes these partnerships to collect and share data on the millions of unwitting people they track.
Limiting information collected by state and local law enforcement agencies limits the amount of information that can flow into federal databases through fusion centers and the ISE.
WHAT’S NEXT
Gov. Cox must sign or veto HB57 within 20 days of the legislature’s adjournment, or it will become law without his signature. The legislature is scheduled to wrap up the 2023 session on March 3.
