NC lawmakers want to give police even more power to track your phone without a warrant

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Will Doran, Danielle Battaglia
·4 min read
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For at least a decade now, police all around North Carolina have been tracking people’s cellphone locations without getting a warrant first.

The courts have let them do it, ruling in recent years that law enforcement can ask phone companies for someone’s historical location data even if they don’t have the probable cause needed for a warrant. And on Wednesday a committee at the General Assembly advanced a new bill that, if passed into law, would give police the ability to track someone’s real-time movements without a warrant — not just where they’ve been in the past, but where they are at any given moment.

Critics say they have concerns about people’s constitutional rights being violated, as well as what might happen if a criminal was able to take advantage of the looser rules to impersonate a police officer and stalk a victim.

“It’s a very invasive way of seeing where a person is going, what they’re doing, who they’re seeing,” said Ann Webb, senior policy counsel for the American Civil Liberties Union’s state branch.

The bill is sponsored by Republican Rep. Pat Hurley of Asheboro and is a version of legislation called “The Kelsey Smith Act,” which has passed in several other states. It has also passed the North Carolina House of Representatives, but not the Senate, in years past. The bill, House Bill 213, is named after a Kansas teenager who was kidnapped and murdered in 2007.

It would allow police to track someone’s cellphone location in real time if they believed it could help them resolve “an emergency situation that involves an imminent risk of death or serious physical harm.”

“This has been a bipartisan bill across the nation,” Hurley said. “With the primary sponsor being Republican in eight states, Democrat in 13 and bipartisan in six.”

Webb said other states that have passed the bill have added several different types of privacy protections for people, but that the North Carolina version doesn’t have any of those.

She said the ACLU agrees that finding a crime victim as quickly as possible is important, but the group fears the bill is too broad and could be abused.

For instance, she said, the ACLU would like a change to the bill saying that police can get this information without a warrant, but they at least need to have probable cause. That would balance people’s Fourth Amendment right against warrantless searches, she said, with the public-safety need of helping find someone in danger.

“We’re saying you can skip the time-consuming process of getting a warrant, but you still need to have probable cause,” Webb said.

And while the bill says police can conduct the warrantless surveillance only if they believe it’s an emergency, there’s nothing that says what happens if it’s not actually an emergency.

Webb said there should be a provision saying any information the police get can’t be used as evidence, if a judge or magistrate later determines it wasn’t an emergency when they conducted the warrantless surveillance.

Democratic Rep. Terry Brown of Charlotte tried to amend the bill Wednesday with changes along those same lines.

“I want to make sure that on the back end, we’re doing our due diligence to make sure that that evidence is admissible, and there’s provisions to protect any rogue officers or to protect anyone from misusing these systems,” he said.

The committee, however, shot down Brown’s amendment. Hurley said she didn’t support the changes because the extra oversight would take up too much time for police and judicial officials.

“How many times will they have to go back to court?” she said. “Every time they do this. And they’re doing this every day.”

The ACLU has been keeping track of warrantless cellphone surveillance for years; a 2012 report found at least 40 police departments around the state were tracking people’s phones without warrants for their historical location data.

It’s unclear, however, how many departments — if any — have attempted the warrantless, real-time tracking of people’s locations that this bill would officially authorize.

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