The R Street Institute encourages all members to vote no on H.R. 4889, the Kelsey Smith Act. This bill is expected to be considered under suspension of the rules this evening: Monday, May 23, 2016. The proposed legislation creates an unprecedented loophole to our Fourth Amendment right to privacy. It enables law enforcement to compel cell carriers to disclose user-location information without a prior court order when they believe there is an “emergency” situation.

The legislation’s goal is laudable – to help find people deemed to be in “emergency” situations. But granting law enforcement extraordinary abilities to obtain cell data without receiving a probable-cause warrant from a judge is yet another expansion of government surveillance power. Such expansions may infringe the Fourth Amendment rights of the very citizens the police may want to help

While written with the best intentions, this bill would breach the privacy of millions of Americans by giving law enforcement an unprecedented level of access to the movement, whereabouts and location of targeted individuals.

Current law already allows cellphone providers to disclose a user’s location information voluntarily either when the user in question has previously consented to such data being shared with law enforcement or when law enforcement clearly defines to a phone provider that the emergency conditions described in the bill are present. However the bill’s broad language creates a new default where a person’s Fourth Amendment right to privacy is deemed less important than a perceived “emergency”—not as determined by a judge, but instead as determined by police at their own discretion.

Some law-enforcement professionals believe they need this power to do their jobs. But in an age in which law enforcement has so frequently abused their existing investigatory powers, we may be 100 percent certain that this new power, unchecked by judicial process, will be abused. For this reason, Congress must actively defend the Fourth Amendment’s key limiting principle— an independent judicial determination of whether a demand for information (including personal location) is consistent with constitutional principles.

Finally, we note that even the chief advocates for this change in the law admit that it would not have prevented the tragic abduction and death of Kelsey Smith.

Our Fourth Amendment right to privacy is a sacred, uniquely American right crafted by our Founding Fathers that deserves our renewed commitment in the digital age. R Street encourages all members to weigh this importance before rushing to pass H.R. 4889.


R Street Institute

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