May 7, 2012 at 6:19 PM ET
Updated at 6 p.m. ET Wednesday.
A Justice Department official has said that requiring a warrant to collect mobile phone location data would "cripple" prosecutors and law enforcement. The comment, made by Jason Weinstein of theJustice Department's criminal division, reflects the growing frustration by officials over lack of easy access to choice data like location and GPS history. Privacy advocates, on the other hand, have been pressing their suit strongly in law and in court, bolstered by a recent Supreme Court decision and increasing public concern over private data.
The context of Weinstein's comment is important to note: He was speaking at a panel at a congressionally sponsored conference about mobile Internet issues, and the remarks were regarding the need to standardize requirements for the collection of locational data - tower triangulation in this case, but legislative decisions along these "indirect tracking" lines would likely rope in Wi-Fi records, check-in apps and other location-determining functions. As it stands, different courts and different law enforcement officials are operating under different standards, granting or failing to grant access to such data under a varying set of conditions. Standardization is necessary, Weinstein said:
There really is no fairness and no justice when the lawapplies differently to different people depending on whichcourthouse you're sitting in. For that reason alone, we think Congress should clarify thelegal standard.
On that, both he and his privacy-advocate opponents agree. But the DOJ wants the bar to be universally set lower (allowing for easier access by law enforcement), while the EFF and others say the opposite should be the case, and the requirements should be universally more stringent (protecting citizens against unreasonable or arbitrary search).
Requiring the police to obtain a search warrant — the traditional method for balancing law enforcement needs with individual privacy — and demanding the wireless industry be transparent about how they deal with law enforcement requests for location information are critical steps in the right direction, towards "fairness" and "justice," location privacy and transparency
The privacy side has the advantage of momentum, courtesy of a recent victory in the Supreme court: United States v. Jones, which determined that warrantless GPS tracking using a device attached to a car violated the right to be free from unreasonable searches. A similar decision should be enforced for the GPS and other locational data (Wi-Fi, triangulation) found in personal devices like phones, they argue. Ron Wyden, a Democratic senator from Oregon, has actually proposed legislation to this effect, but it has failed as yet to advance.
The availability of location data will be an issue for years to come, and will only become more complicated as the use of location-aware services from the likes of Facebook, Apple and Google become even more ubiquitous. The legislation regulating this data is already old; the law cited by the DOJ has not been significantly modified since 2001, during which time the wireless and mobile industry has changed immensely. Both sides want new laws, which is a start, but how the laws will actually read is still very much up in the air.
Update: Weinstein's comments did not refer specifically to GPS, as the article initially stated, but to tower-based locational data. GPS, as he mentions, requires more evidence. However, data held by carriers is not subject to that higher standard, and tower-based location data restrictions are irregularly enforced. The article was updated with this information.
Also, Ron Wyden, a Democratic senator from Oregon, was previously incorrectly identified as "Ron Wyden, a Democratic Representative from Massachusetts." This error has also been fixed.
Devin Coldewey is acontributing writer for msnbc.com. His personal website iscoldewey.cc.