Florida bill would require a warrant to access location data on electronic devices

Focus on the Legislature

By John Haughey | The Center Square

There are at least 300 million cell phones in use in the United States – 96 for every 100 people – and the Pew Research Center estimates 276.7 million Americans are cell phone service subscribers.

Florida Sen. Jeff Brandes, R-St. Petersburg, has again submitted a bill that would protect Florida’s 20.8 million wireless service subscribers from a digital loophole in the Fourth Amendment that allows law enforcement to legally access GPS location data in someone’s cell phone without a warrant.

The bill, Senate Bill 144, was pre-filed on Dec. 4 for the 2021 legislative session. Brandes has now filed the same bill four times. The three previous iterations never made it out of the Senate Judiciary Committee.

“The Legislature recognizes the subjective expectation of privacy in real-time cell-site location data, real-time precise global positioning system location data, and historical precise global positioning system location data which society is now prepared to accept is objectively reasonable,” the bill reads. “As such, the law enforcement collection of the precise location of a person, cellular phone, or portable electronic communication device without the consent of the person or owner of the cellular phone or portable electronic communication device should be allowed only when authorized by a search warrant issued by a court of competent jurisdiction and should remain under the control and supervision of the authorizing court.”

SB 144 would not only require a warrant to access electronic information on cell phones, but to access any other electronic devices that connect to the internet, including home assistant devices like Amazon’s Alexa.

"These devices can store, and encourage the storing of, an almost limitless amount of personal and private information,” the bill reads. “Often linked to the Internet, these devices are commonly used to access personal and business information and databases in computers and servers that can be located anywhere in the world."

Supreme Court rulings in 2012’s United States v. Jones and 2018’s Carpenter v. United States determined that while subscribing to a cellular service is voluntarily, “the simple act of turning on your phone doesn't result in the forfeiture of your 4th Amendment rights.”

In Carpenter v. United States, the court ruled the use of cell site location information (CSLI) is not subject to the “third party doctrine,” which holds individuals have a “reduced expectation of privacy” when they knowingly share information with a third party, such as cell phone companies, and therefore, warrants are not required.

However, while “wiretapping” a land line or cell phone requires a warrant, law enforcement nationwide has created a maze of loopholes and exceptions that can vary state to state using “third party doctrine” and varying definitions of the term “search.”

According to a report from Upturn, a Washington, D.C.-based civil society organization, 2,000 of the nation’s 18,000 law enforcement agencies, including 50 of the U.S.’s largest police departments, have purchased mobile device forensic tools (MDFTs) that, essentially, circumvent privacy rights.

“Law enforcement has repeatedly talked about the need for access to locked phones to solve serious crimes such as terrorism, murder and child pornography. But it’s hardly the case that law enforcement uses these tools only when investigating such crimes,” the report states. “In fact, these highly invasive tools are also used to investigate a host of lesser crimes. The report cites the following examples: “graffiti, shoplifting, marijuana possession, prostitution, vandalism, car crashes, parole violations, petty theft, public intoxication, and the full gamut of drug-related offenses.”

Brandes’ SB 114 is among 61 Senate bills and 19 House bills that had been pre-filed by Monday morning for the 60-day 2021 legislative session, which begins March 3.