Inside Wisconsin's Bipartisan Effort to End Warrantless Cellphone Tracking

While tech companies like Google, Apple, and Facebook called for surveillance reform on Capitol Hill today, Wisconsin legislators are addressing the issue head-on. On November 25th, state representatives Rob Hutton (Rep.) and Melissa Sargent (Dem.) co-authored and introduced Assembly Bill 536, which would prohibit the warrantless tracking of mobile or wireless communication devices.

The bill, which enjoys wide bipartisan support, is cosponsored by Wisconsin state senators Glenn Grothman and John Lehman.

“Technology has surpassed our laws and we need to bring our laws up to date,” Sargent told the Milwaukee Journal-Sentinel. Earlier this year, Sargent authored a social media bill that would protect users against voyeuristic employers, educational institutions, and landlords, among others. With the work on these bills, Sargent finds herself leading Wisconsin’s privacy charge at the intersection of technology and government.

Sargent “stumbled across the metadata issue” after putting together the social media privacy bill. “Watching surveillance playout on the national level with the NSA revelations, and seeing that people were as outraged as I was, led me to believe I was on to something,” said Sargent, who felt that a mobile privacy bill had the potential to pass even in Wisconsin’s divisive political climate.

First, Sargent reached out to a staffer in Wisconsin’s Republican-controlled Attorney General’s office. “I figured it would be important to get law enforcement behind us,” said Sargent. “They seemed supportive of the bill, and told me that there was another representative working on a similar bill.” That representative turned out to be Hutton.

The legislators’ bills were nearly identical apart from the data dumping provision in Sargent’s version, which the two included in their collaborative draft of Bill 536. Once written, Sargent and Hutton began mobilizing bipartisan support for their effort. As set forth in the bill’s text, law enforcement authorities would be required to “[p]rovide a statement that sets forth facts and circumstances that provide probable cause to believe the criminal activity has been, is, or will be in progress and that identifying or tracking the communications device will yield information relevant to an ongoing criminal investigation.”

This would prevent dragnet collection GPS data in mobile or wireless communications devices (cellphones, iPads), while limiting warranted tracking to a period of 60 days. Under the proposed law, if a judge chose to extend the tracking period, they could only do so in successive 60-day increments. The bill does, however, allow for the warrant process to be bypassed in the event of an emergency “involving danger of death or serious physical injury.”

Service providers could also provide this tracking data without a warrant in emergencies with full immunity against lawsuits. Most importantly for privacy advocates, law enforcement would be unable to store cellphone user data after the legal process plays out. This is significant because it would mean that law enforcement could not legally build a database of mobile tracking records.

To avoid any antagonism with police and prosecutors, Sargent reached out to a few people high up in law enforcement—who she did not name—in order to get their input. Sargent sees the bill’s warrant process as a tool to ensure that law enforcement’s hard work holds up in court. “One of the things that was explained to me by someone high up in law enforcement is that no officer wants to collect information on a potential crime, then have it ruled inadmissible by a judge,” noted Sargent. “That makes the justice process very frustrating.”

Sargent’s two privacy bills place the state on a growing list of state governments tackling surveillance reform as Capitol Hill’s stalemate plays out. In June of this year, for instance, Texas Governor Rick Perry signed a law that requires a warrant for any email requested under the Electronic Communication Privacy Act of 1986; which, up until that point, didn’t require probable cause for email access.

And, in California, the nation’s tech hub, Gov. Jerry Brown signed a series of privacy laws that would create an “eraser button” for teens’ online activities; demand that internet companies detail their responses to Do Not Track requests; and ban “revenge porn”. While Wisconsin’s efforts pale in comparison to the Golden State’s, it does suggest that the Wisconsin’s progressives and tea partiers can find some common ground amid Scott Walker’s controversial governorship.

The true test for Sargent’s two privacy bills will be Walker’s political whim. Lately, the Wisconsin governor has been rather mum on the issue of state surveillance. But, back in July, speaking at a Republican governor panel at the Aspen Institute, Walker said that he didn’t see a shift in the GOP toward libertarian views on national surveillance (pro-surveillance reform). Days later, at the National Governors Association summit in Milwaukee, Walker hedged, telling the Washington Post, “I don’t know that you could put me in either camp [on privacy], precisely.”

In spite of Walker’s noncommittal responses to surveillance reform, Sargent is hopeful that the governor will support the mobile privacy bill. “I do intend to sit down with [Gov. Walker] and discuss this bill,” said Sargent. “Based on our previous conversation, I am hopeful that he will be as fully supportive of the cellphone privacy bill as he was the social media bill.