State passes bill allowing warrantless phone search
Michigan's state legislature's Criminal Justice Committee unanimously passed a bill Feb. 17 allowing local law enforcement to obtain a person's location through their mobile device without a warrant.
The bill is sponsored by Michigan House Criminal Justice Committee Chair Rep. Kurt Heise, R-Northville.
Heise’s bill is raising concerns about privacy. House Bill 4006, is named for a young Kansas woman who was kidnapped, raped and murdered in 2007. Police were forced to wait four days for a warrant compelling Verizon Communications to release Smith’s phone’s last known location, by which point she had already been found dead.
The bill amends the Communications Act of 1934 to require telecommunication carriers to provide call location information to agencies and other public safety agencies in emergency situations.
HB 4006 passed through the Criminal Justice Committee after testimony from Smith’s mother, Missy, and is now on track to be heard on the House floor. Smith’s mother has maintained if police had immediate access to Kelsey’s phone, she might be alive today.
“The legislative intent is that it’s an emergency use, one-time thing,” Heise said at the committee meeting. “We don’t want to track people or anything like that.”
Mount Pleasant Police Department Public Information Officer Jeff Browne said the current method of obtaining a person's cell phone location is time consuming in an ongoing investigation.
"First, we have to contact the carrier's law enforcement line," Browne said. "Then we have to send them documentation proving that we are actually police officers, and that we are responding to a real emergency. After that, some companies allow us access to GPS voluntarily. Others require a warrant."
Police must write a request for a warrant and then wait for a judge's approval.
"If we could get the GPS information immediately and provide a warrant later, it would make the search go 10 times faster," Browne said.
The notion of warrantless cell phone tracking is concerning to some. James Hill, a professor of political science at Central Michigan University, said there are dangers associated with such a bill.
“It is dangerous to allow the enforcer to define the triggering event that permits the invasion of one’s personal privacy,” Hill said. “Infringing on personal liberties is a slippery slope.”
Browne said having to wait four days to obtain a warrant is highly unusual, but allowing police to obtain cell phone location data without a warrant would expedite investigations.
“Usually we get a warrant within the same day,” Browne said. “In emergency situations, it’s even faster, maybe a few hours.”
Browne said a kidnapping is not the only situation in which the police must race against the clock to find a person.
"If I need to find someone quickly, someone who may be intoxicated, waiting for a warrant in winter temperatures could be the difference between finding a live subject or a dead body," Browne said.
Bay City junior Nathan Urband says he is weary of a law that would allow police to access a person's location.
"I feel like the law could be helpful," Urband said. "But what is really keeping them from using this to check up on someone without that person's consent?"
Rep. Heise said the bill will not open the door for abuse by law enforcement, since it requires an officer to obtain a court order to continue requesting and using cell phone data after 48 hours.
Despite this provision, there remains a concern that such a law would grant too much discretion to the police. Hill said under current law, the police are not the ones intended to decide what constitutes an emergency.
"I am always worried about restricting personal liberties, even when they have admirable crime prevention objectives," Hill said. "Any such law should be carefully crafted to ensure liberties are infringed on only in a truly exceptional situation, and not merely for ease of enforcement purposes."
