Bill would clarify cellphone tracking law, provide additional privacy measures

HARTFORD — In 2005, the General Assembly passed legislation allowing law enforcement agencies with reasonable suspicion to gather basic cellphone records — such as call data or the name and address of a cellphone subscriber — through a court order.

But in the years since the legislation went into effect, law enforcement agencies in the state have gathered data beyond what the law allows, according to David McGuire, legislative and policy director for the American Civil Liberties Union of Connecticut. Some agencies have obtained emails, texts and private social media conversations from cellphones without probable cause or a warrant, he said, while others have unlawfully tracked people through cellphones.

“This law was sold to the legislature as a way to get basic subscriber information for cellphones,” McGuire said. “But it has been used in a much broader way.”

A bill introduced Thursday by the General Assembly’s Judiciary Committee seeks to increase privacy for those with cellphones or mobile devices while still allowing law enforcement to access live tracking data during emergency situations. Last year, a similar bill passed the House of Representatives but was never taken up by the Senate. Language in the pending bill — worked on by the ACLU, the Connecticut Police Chiefs Association and the Office of the Chief State’s Attorney — addresses privacy concerns voiced in a recent Superior Court ruling, McGuire said.

In December, New Haven Superior Court Judge Jon Blue suppressed evidence in a robbery case because police ordered a cellphone company to track the suspect through his cellphone. Blue ruled that the legislature, in passing the 2005 cellphone tracking law, did not intend for police to receive anything other than basic subscriber information without a warrant. He wrote in his ruling that it’s rare to meet someone without a cellphone, “but with this convenience comes the possibility of an Orwellian state.”

Deputy Chief State’s Attorney Leonard Boyle said that, constitutionally, it’s an “open question” whether or not law enforcement agencies can track a cellphone based on reasonable suspicion that someone committed a crime. Reasonable suspicion is a legal standard of proof lower than probable cause.

The Judiciary Committee’s bill “makes clear that law enforcement needs probable cause” to gather tracking data, except in emergency situations, Boyle said.

Under the legislation, law enforcement agencies would be able to gather tracking data directly from cellphone companies for up to 48 hours during emergency situations. Any further requests would have to be ordered through a judge, and could only be granted if probable cause exists.

“The 48-hour provision is important so that in emergency circumstances police can do what they have to do,” Boyle said.

The ACLU contacted several people who were the subject of tracking orders and never charged with a crime. They obtained the names through a Freedom of Information Act request, McGuire said. Some told the organization that they were unaware they were ever being tracked, he said.

State Rep. Vincent Candelora, R-North Branford, a member of the Judiciary Committee, said he generally agrees that certain data should be available to police in emergency situations.

“We should be supportive of them being able to get it for public safety purposes,” he said. “If it becomes an investigatory tool as opposed to a public safety tool, there’s certainly going to be an issue with it.”

The pending bill prevents law enforcement agencies from gathering electronic communications without probable cause. There have been instances of law enforcement gathering messages and emails from cellphone carriers based on reasonable suspicion, Boyle said, even though the 2005 cellphone tracking law doesn’t allow or authorize the disclosure of such content without a warrant. The only information that can be obtained through reasonable suspicion is the name, address and basic call data of a person under contract with a cellphone company.

In addition, the bill would prevent collected data to be held for more than 14 days unless there is an ongoing criminal investigation, and require that those being tracked by law enforcement are notified.

Through freedom of information requests, the ACLU found several orders granted by cellphone companies in which police unlawfully obtained cellphone communications. One order included “months of emails,” McGuire said, while another include a private conversation on Facebook. Since the law was established in 2005, around 14,000 orders have been granted and none have been denied. It’s unclear how many of those orders were for emergencies. The pending bill would require the Office of the Chief State’s Attorney to specify how many of the orders are for emergencies.

McGuire said he thought the bill “strikes the proper balance” between privacy and public safety.

State law requires that those being tracked through their cellphones be notified by law enforcement within 48 hours, but the ACLU found this wasn’t happening consistently after auditing police records throughout the state. The bill before the Judiciary Committee would require law enforcement to file notice of every tracking order with a court clerk, allowing for orders to be challenged.

This notification is “absolutely essential for due process,” McGuire said. “If someone doesn’t know they’re being tracked, there’s no way to challenge it.”

Police departments didn’t withhold this information on purpose, according to Berlin Police Chief Paul Fitzgerald, who oversees legislative matters for the Connecticut Police Chiefs Association.

“In all honesty, they are having police notify people of so many things now,” he said. “Some fall through the cracks. It’s not with intent.”

Boyle agreed, noting that “sometimes in the middle of an investigation, the ball gets dropped.”

“I don’t know of any indication that there was a deliberate withholding of information,” he said.

Regarding other aspects of the legislation, Fitzgerald said, “it’s a good middle ground for law enforcement.” Police usually obtain emergency tracking orders when a child or senior is missing and might have a cellphone. There are also situations when a child is taken during a domestic situation when tracking is useful.

“That’s something we have to act upon quickly,” he said.

aragali@record-journal.com
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