February 16, 2016 Testimony to the Maryland House Judiciary Committee

in SUPPORT of HB257, "Criminal Procedure - Providing Electronic

Device Location Information - Historical Data
Thomas Nephew, Member, Montgomery County Civil Rights Coalition
[address withheld]
Speaking for the activist group "Montgomery County Civil Rights Coalition"
and for myself, I strongly support HB257.
This bill addresses a major loophole in regulating electronic device
surveillance by acknowledging in admirably succinct fashion -- that
historical location data are just as much a part of a persons privacy under
the Fourth Amendment as real-time data are.
We have no doubt that historical data can be very useful to law enforcement
indeed, that is precisely our point as well: such data can be highly revealing about
the activities of a surveilled person. The question this bill answers is: to what
purpose? The answer, under this bill, would be if a court finds that there is
probable cause to believe that a misdemeanor or felony has been, is being, or will
be committedby the subject, and that the location information will provide
evidence about that or lead to the arrest of the person involved.

That is as it should be. Currently, historical location data can be collected

without warrant in Maryland, potentially allowing law enforcement agencies
or bad actors within them to systematically evaluate the movements of
surveilled persons for reasons that have nothing to do with criminal law
enforcement: who were they seeing at night? What demonstrations did they
appear to attend? Were they in an abortion clinic? Do they appear to have
attended an Alcoholics Anonymous meeting?
In one famous example of the power of this kind of data, German Green Party
member Malte Spitz obtained 6 months of cell phone data obtained from
telecom records, and gave permission to the newsweekly Die Zeit to map
them. The result, viewable as a dot moving on a detailed map of Germany,
was all but a daily, even hourly diary of his activities.i
Even when there is cause to surveille a person, it is important to limit the
scope of a warrant in a way supported by that cause, and not simply allow
agencies to engage in fishing expeditions of the historical record.
This bill would prevent misuse of historical location data and would thereby
protect the Fourth Amendment rights of all of us. We urge that this
committee pass it favorably.

Tell-all telephone, Zeit Online, 8/31/2009. Retrieved 2/16/2016 at

http://www.zeit.de/datenschutz/malte-spitz-data-retention.