Can You See Me Now?: Toward Reasonable Standards for Law Enforcement Access to Location Data that Congress Could Enact

Abstract

The use of location information by law enforcement agencies is common and becoming more so as technological improvements enable collection of more accurate, precise location data. The legal mystery surrounding the proper law enforcement access standard for prospective location data remains unsolved. This mystery, along with conflicting rulings over the appropriate law enforcement access standards for both prospective and historical location data, has created a messy, inconsistent legal landscape where even judges in the same district may require law enforcement to meet different standards to compel location data. As courts struggle with these intertwined technology, privacy, and legal issues, some judges are expressing concern over the scope of the harms, from specific and personal to general and social, presented by unfettered government collection and use of location data and how to respond to them. Judges have sought to communicate the scope and gravity of these concerns through direct references to Orwell’s dystopia in 1984, as well as suggestive allusions to the “panoptic effect” observed by Jeremy Bentham and his later interpreters like Michel Foucault. Some have gone on to suggest that privacy issues raised by law enforcement access to location data might be addressed more effectively by the legislature.This Article proposes a legislative model for law enforcement access standards and downstream privacy protections for location information. This proposal attempts to (1) articulate clear rules for courts to apply and law enforcement agents and industry to follow; and (2) strike a reasonable balance among the interests of law enforcement, privacy, and industry with the ultimate goal of improving the position of all concerned when measured against the current state of the law.