HR 2168 IHCommentsClose CommentsPermalink

112th CONGRESSCommentsClose CommentsPermalink

1st SessionCommentsClose CommentsPermalink

H. R. 2168CommentsClose CommentsPermalink

To amend title 18, United States Code, to specify the circumstances in which a person may acquire geolocation information and for other purposes.CommentsClose CommentsPermalink

IN THE HOUSE OF REPRESENTATIVESCommentsClose CommentsPermalink

June 14, 2011CommentsClose CommentsPermalink

Mr. CHAFFETZ (for himself and Mr. GOODLATTE) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Select Committee on Intelligence (Permanent Select), for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concernedCommentsClose CommentsPermalink

A BILLCommentsClose CommentsPermalink

To amend title 18, United States Code, to specify the circumstances in which a person may acquire geolocation information and for other purposes.CommentsClose CommentsPermalink

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,CommentsClose CommentsPermalink

SECTION 1. SHORT TITLES.

This Act may be cited as the ‘Geolocational Privacy and Surveillance Act’ or the ‘GPS Act’.CommentsClose CommentsPermalink

SEC. 2. PROTECTION OF GEOLOCATION INFORMATION.

(a) In General- Part 1 of title 18, United States Code, is amended by inserting after chapter 119 the following:CommentsClose CommentsPermalink

‘CHAPTER 120--GEOLOCATION INFORMATION

‘Sec.CommentsClose CommentsPermalink





‘2601. Definitions.CommentsClose CommentsPermalink





‘2602. Interception and disclosure of geolocation information.CommentsClose CommentsPermalink





‘2603. Prohibition of use as evidence of acquired geolocation information.CommentsClose CommentsPermalink





‘2604. Emergency situation exception.CommentsClose CommentsPermalink





‘2605. Recovery of civil damages authorized.CommentsClose CommentsPermalink

‘Sec. 2601. Definitions

‘In this chapter:CommentsClose CommentsPermalink





‘(1) ELECTRONIC COMMUNICATION SERVICE- The term ‘electronic communication service’ has the meaning given that term in section 2510.CommentsClose CommentsPermalink





‘(2) ELECTRONIC SURVEILLANCE- The term ‘electronic surveillance’ has the meaning given that term in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).CommentsClose CommentsPermalink





‘(3) GEOLOCATION INFORMATION- The term ‘geolocation information’ means, with respect to a person, any information that is not the content of a communication, concerning the location of a wireless communication device or tracking device (as that term is defined section 3117) that, in whole or in part, is generated by or derived from the operation of that device and that could be used to determine or infer information regarding the location of the person.CommentsClose CommentsPermalink





‘(4) GEOLOCATION INFORMATION SERVICE- The term ‘geolocation information service’ means the provision of a global positioning service or other mapping, locational, or directional information service to the public, or to such class of users as to be effectively available to the public, by or through the operation of any wireless communication device, including any mobile telephone, global positioning system receiving device, mobile computer, or other similar or successor device.CommentsClose CommentsPermalink





‘(5) INTERCEPT- The term ‘intercept’ means the acquisition of geolocation information through the use of any electronic, mechanical, or other device.CommentsClose CommentsPermalink





‘(6) INVESTIGATIVE OR LAW ENFORCEMENT OFFICER- The term ‘investigative or law enforcement officer’ means any officer of the United States or of a State or political subdivision thereof, who is empowered by law to conduct investigations of, or to make arrests for, offenses enumerated in this chapter, and any attorney authorized by law to prosecute or participate in the prosecution of such offenses.CommentsClose CommentsPermalink





‘(7) PERSON- The term ‘person’ means any employee or agent of the United States, or any State or political subdivision thereof, and any individual, partnership, association, joint stock company, trust, or corporation.CommentsClose CommentsPermalink





‘(8) REMOTE COMPUTING SERVICE- The term ‘remote computing service’ has the meaning given that term in section 2711.CommentsClose CommentsPermalink





‘(9) STATE- The term ‘State’ means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States.CommentsClose CommentsPermalink





‘(10) WIRELESS COMMUNICATION DEVICE- The term ‘wireless communication device’ means any device that enables access to, or use of, an electronic communication system or service, remote computing service, or geolocation information service, if that device utilizes a radio or other wireless connection to access such system or service.CommentsClose CommentsPermalink





‘(11) COVERED SERVICE- The term ‘covered services’ means electronic communication service, remote computing service, or of geolocation information service.CommentsClose CommentsPermalink

‘Sec. 2602. Interception and disclosure of geolocation information

‘(a) In General-CommentsClose CommentsPermalink





‘(1) PROHIBITION ON DISCLOSURE OR USE- Except as otherwise specifically provided in this chapter, it shall be unlawful for any person to--CommentsClose CommentsPermalink





‘(A) intentionally intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, geolocation information pertaining to another person;CommentsClose CommentsPermalink





‘(B) intentionally disclose, or endeavor to disclose, to any other person geolocation information pertaining to another person, knowing or having reason to know that the information was obtained through the interception of such information in violation of this paragraph;CommentsClose CommentsPermalink





‘(C) intentionally use, or endeavor to use, any geolocation information, knowing or having reason to know that the information was obtained through the interception of such information in violation of this paragraph; orCommentsClose CommentsPermalink





‘(D)(i) intentionally disclose, or endeavor to disclose, to any other person the geolocation information pertaining to another person intercepted by means authorized by subsections (b) through (h), except as provided in such subsections;CommentsClose CommentsPermalink





‘(ii) knowing or having reason to know that the information was obtained through the interception of such information in connection with a criminal investigation;CommentsClose CommentsPermalink





‘(iii) having obtained or received the information in connection with a criminal investigation; andCommentsClose CommentsPermalink





‘(iv) with intent to improperly obstruct, impede, or interfere with a duly authorized criminal investigation.CommentsClose CommentsPermalink





‘(2) PENALTY- Any person who violates paragraph (1) shall be fined under this title, imprisoned not more than five years, or both.CommentsClose CommentsPermalink





‘(b) Exception for Information Acquired in the Normal Course of Business- It shall not be unlawful under this chapter for an officer, employee, or agent of a provider of covered services, whose facilities are used in the transmission of geolocation information, to intercept, disclose, or use that information in the normal course of the officer, employee, or agent’s employment while engaged in any activity which is a necessary incident to the rendition of service or to the protection of the rights or property of the provider of that service, except that a provider of a geolocation information service to the public shall not utilize service observing or random monitoring except for mechanical or service quality control checks.CommentsClose CommentsPermalink





‘(c) Exception for Conducting Foreign Intelligence Surveillance- Notwithstanding any other provision of this chapter, it shall not be unlawful for an officer, employee, or agent of the United States in the normal course of the official duty of the officer, employee, or agent to conduct electronic surveillance, as authorized by the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).CommentsClose CommentsPermalink





‘(d) Exception for Consent-CommentsClose CommentsPermalink





‘(1) IN GENERAL- It shall not be unlawful under this chapter for a person to intercept geolocation information pertaining to another person if such other person has given prior consent to such interception unless such information is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.CommentsClose CommentsPermalink





‘(2) CHILDREN- The exception in paragraph (1) permits a parent or legal guardian of a child to intercept geolocation information pertaining to that child or to give consent for another person to intercept such information.CommentsClose CommentsPermalink





‘(e) Exception for Public Information- It shall not be unlawful under this chapter for any person to intercept or access geolocation information relating to another person through any system that is configured so that such information is readily accessible to the general public.CommentsClose CommentsPermalink





‘(f) Exception for Emergency Information- It shall not be unlawful under this chapter for any investigative or law enforcement officer or other emergency responder to intercept or access geolocation information relating to a person if such information is used--CommentsClose CommentsPermalink





‘(1) to respond to a request made by such person for assistance; orCommentsClose CommentsPermalink





‘(2) in circumstances in which it is reasonable to believe that the life or safety of the person is threatened, to assist the person.CommentsClose CommentsPermalink





‘(g) Exception for Theft or Fraud- It shall not be unlawful under this chapter for a person acting under color of law to intercept geolocation information pertaining to the location of another person who has unlawfully taken the device sending the geolocation information if--CommentsClose CommentsPermalink





‘(1) the owner or operator of such device authorizes the interception of the person’s geolocation information;CommentsClose CommentsPermalink





‘(2) the person acting under color of law is lawfully engaged in an investigation; andCommentsClose CommentsPermalink





‘(3) the person acting under color of law has reasonable grounds to believe that the geolocation information of the other person will be relevant to the investigation.CommentsClose CommentsPermalink





‘(h) Exception for Warrant-CommentsClose CommentsPermalink





‘(1) DEFINITIONS- In this subsection:CommentsClose CommentsPermalink





‘(A) COURT OF COMPETENT JURISDICTION- The term ‘court of competent jurisdiction’ includes--CommentsClose CommentsPermalink





‘(i) any district court of the United States (including a magistrate judge of such a court) or any United States court of appeals that--CommentsClose CommentsPermalink





‘(I) has jurisdiction over the offense being investigated;CommentsClose CommentsPermalink





‘(II) is in or for a district in which the provider of a geolocation information service is located or in which the geolocation information is stored; orCommentsClose CommentsPermalink





‘(III) is acting on a request for foreign assistance pursuant to section 3512 of this title; orCommentsClose CommentsPermalink





‘(ii) a court of general criminal jurisdiction of a State authorized by the law of that State to issue search warrants.CommentsClose CommentsPermalink





‘(B) GOVERNMENTAL ENTITY- The term ‘governmental entity’ means a department or agency of the United States or any State or political subdivision thereof.CommentsClose CommentsPermalink





‘(2) WARRANT- A governmental entity may intercept geolocation information or require the disclosure by a provider of covered services of geolocation information only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction, or as otherwise provided in this chapter or the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).CommentsClose CommentsPermalink





‘(i) Prohibition on Divulging Geolocation Information-CommentsClose CommentsPermalink





‘(1) IN GENERAL- Except as provided in paragraph (2), a person providing covered services shall not intentionally divulge geolocation information pertaining to another person.CommentsClose CommentsPermalink





‘(2) EXCEPTIONS- A person providing covered services may divulge geolocation information--CommentsClose CommentsPermalink





‘(A) as otherwise authorized in subsections (b) through (h);CommentsClose CommentsPermalink





‘(B) with the lawful consent of such other person;CommentsClose CommentsPermalink





‘(C) to another person employed or authorized, or whose facilities are used, to forward such geolocation information to its destination; orCommentsClose CommentsPermalink





‘(D) which was inadvertently obtained by the service provider and which appears to pertain to the commission of a crime, if such divulgence is made to a law enforcement agency.CommentsClose CommentsPermalink

‘Sec. 2603. Prohibition of use as evidence of acquired geolocation information

‘Whenever any geolocation information has been acquired, no part of such information and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.CommentsClose CommentsPermalink

‘Sec. 2604. Emergency situation exception

‘(a) Emergency Situation Exception- Notwithstanding any other provision of this chapter, any investigative or law enforcement officer, specially designated by the Attorney General, the Deputy Attorney General, the Associate Attorney General, or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State, may intercept geolocation information if--CommentsClose CommentsPermalink





‘(1) such officer reasonably determines that an emergency situation exists that--CommentsClose CommentsPermalink





‘(A) involves--CommentsClose CommentsPermalink





‘(i) immediate danger of death or serious physical injury to any person;CommentsClose CommentsPermalink





‘(ii) conspiratorial activities threatening the national security interest; orCommentsClose CommentsPermalink





‘(iii) conspiratorial activities characteristic of organized crime; andCommentsClose CommentsPermalink





‘(B) requires geolocation information be intercepted before an order authorizing such interception can, with due diligence, be obtained;CommentsClose CommentsPermalink





‘(2) there are grounds upon which an order could be entered to authorize such interception; andCommentsClose CommentsPermalink





‘(3) an application for an order approving such interception is made within 48 hours after the interception has occurred or begins to occur.CommentsClose CommentsPermalink





‘(b) Failure To Obtain Court Order-CommentsClose CommentsPermalink





‘(1) TERMINATION OF ACQUISITION- In the absence of an order, an interception of geolocation information carried out under subsection (a) shall immediately terminate when the information sought is obtained or when the application for the order is denied, whichever is earlier.CommentsClose CommentsPermalink





‘(2) PROHIBITION ON USE AS EVIDENCE- In the event such application for approval is denied, the geolocation information shall be treated as having been obtained in violation of this chapter and an inventory shall be served on the person named in the application.CommentsClose CommentsPermalink

‘Sec. 2605. Recovery of civil damages authorized

‘(a) In General- Any person whose geolocation information is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person, other than the United States, which engaged in that violation such relief as may be appropriate.CommentsClose CommentsPermalink





‘(b) Relief- In an action under this section, appropriate relief includes--CommentsClose CommentsPermalink





‘(1) such preliminary and other equitable or declaratory relief as may be appropriate;CommentsClose CommentsPermalink





‘(2) damages under subsection (c) and punitive damages in appropriate cases; andCommentsClose CommentsPermalink





‘(3) a reasonable attorney’s fee and other litigation costs reasonably incurred.CommentsClose CommentsPermalink





‘(c) Computation of Damages- The court may assess as damages under this section whichever is the greater of--CommentsClose CommentsPermalink





‘(1) the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation; orCommentsClose CommentsPermalink





‘(2) statutory damages of whichever is the greater of $100 a day for each day of violation or $10,000.CommentsClose CommentsPermalink





‘(d) Defense- It is a complete defense against any civil or criminal action brought against an individual for conduct in violation of this chapter if such individual acted in a good faith reliance on--CommentsClose CommentsPermalink





‘(1) a court warrant or order, a grand jury subpoena, a legislative authorization, or a statutory authorization;CommentsClose CommentsPermalink





‘(2) a request of an investigative or law enforcement officer under section 2604; orCommentsClose CommentsPermalink





‘(3) a good-faith determination that an exception under section 2602 permitted the conduct complained of.CommentsClose CommentsPermalink





‘(e) Limitation- A civil action under this section may not be commenced later than two years after the date upon which the claimant first has a reasonable opportunity to discover the violation.CommentsClose CommentsPermalink





‘(f) Administrative Discipline- If a court or appropriate department or agency determines that the United States or any of its departments or agencies has violated any provision of this chapter, and the court or appropriate department or agency finds that the circumstances surrounding the violation raise serious questions about whether or not an officer or employee of the United States acted willfully or intentionally with respect to the violation, the department or agency shall, upon receipt of a true and correct copy of the decision and findings of the court or appropriate department or agency promptly initiate a proceeding to determine whether disciplinary action against the officer or employee is warranted. If the head of the department or agency involved determines that disciplinary action is not warranted, such head shall notify the Inspector General with jurisdiction over the department or agency concerned and shall provide the Inspector General with the reasons for such determination.CommentsClose CommentsPermalink





‘(g) Improper Disclosure Is Violation- Any willful disclosure or use by an investigative or law enforcement officer or governmental entity of information beyond the extent permitted by this chapter is a violation of this chapter for purposes of this section.’.CommentsClose CommentsPermalink





(b) Clerical Amendment- The table of chapters for part 1 of title 18, United States Code, is amended by inserting after the item relating to chapter 119 the following:CommentsClose CommentsPermalink

2601’.CommentsClose CommentsPermalink

(c) Conforming Amendments- Section 3512(a) of title 18, United States Code, is amended--CommentsClose CommentsPermalink





(1) in paragraph (2)--CommentsClose CommentsPermalink





(A) by redesignating subparagraphs (B), (C), and (D) as subparagraphs (C), (D), and (E), respectively; andCommentsClose CommentsPermalink





(B) by inserting after subparagraph (A) the following:CommentsClose CommentsPermalink





‘(B) a warrant or order for geolocation information or records related thereto, as provided under section 2602 of this title;’.CommentsClose CommentsPermalink

SEC. 3. REQUIREMENT FOR SEARCH WARRANTS TO ACQUIRE GEOLOCATION INFORMATION.

Rule 41(a) of the Federal Rules of Criminal Procedure is amended--CommentsClose CommentsPermalink





(1) in paragraph (2)(A), by striking the period at the end and inserting a comma and ‘including geolocation information.’; andCommentsClose CommentsPermalink





(2) by adding at the end the following:CommentsClose CommentsPermalink





‘(F) ‘Geolocation information’ has the meaning given that term in section 2601 of title 18, United States Code.’.CommentsClose CommentsPermalink

SEC. 4. FRAUD AND RELATED ACTIVITY IN CONNECTION WITH OBTAINING GEOLOCATION INFORMATION.

(a) Criminal Violation- Section 1039(h) of title 18, United States Code, is amended--CommentsClose CommentsPermalink





(1) in paragraph (2)--CommentsClose CommentsPermalink





(A) in subparagraph (A), by striking ‘and’ at the end;CommentsClose CommentsPermalink





(B) in subparagraph (B), by striking the period at the end and inserting a semicolon and ‘and’; andCommentsClose CommentsPermalink





(C) by adding at the end the following new subparagraph:CommentsClose CommentsPermalink





‘(C) includes any geolocation information service.’;CommentsClose CommentsPermalink





(2) by redesignating paragraph (4) as paragraph (5); andCommentsClose CommentsPermalink





(3) by inserting after paragraph (3) the following:CommentsClose CommentsPermalink





‘(4) GEOLOCATION INFORMATION SERVICE- The term ‘geolocation information service’ has the meaning given that term in section 2601.’.CommentsClose CommentsPermalink





(b) Conforming Amendments-CommentsClose CommentsPermalink





(1) DEFINITION AMENDMENTS- Section 1039(h)(1) of title 18, United States Code, is amended--CommentsClose CommentsPermalink





(A) in the paragraph heading, by inserting ‘OR GPS’ after ‘PHONE’; andCommentsClose CommentsPermalink





(B) in the matter preceding subparagraph (A), by inserting ‘or GPS’ after ‘phone’.CommentsClose CommentsPermalink





(2) CONFORMING AMENDMENTS- Section 1039 of title 18, United States Code, is amended--CommentsClose CommentsPermalink





(A) in the section heading by inserting ‘or GPS’ after ‘phone’;CommentsClose CommentsPermalink





(B) in subsection (a)--CommentsClose CommentsPermalink





(i) in the matter preceding paragraph (1), by inserting ‘or GPS’ after ‘phone’; andCommentsClose CommentsPermalink





(ii) in paragraph (4), by inserting ‘or GPS’ after ‘phone’;CommentsClose CommentsPermalink





(C) in subsection (b)--CommentsClose CommentsPermalink





(i) in the subsection heading, by inserting ‘or GPS’ after ‘Phone’;CommentsClose CommentsPermalink





(ii) in paragraph (1), by inserting ‘or GPS’ after ‘phone’ both places that term appears; andCommentsClose CommentsPermalink





(iii) in paragraph (2), by inserting ‘or GPS’ after ‘phone’; andCommentsClose CommentsPermalink





(D) in subsection (c)--CommentsClose CommentsPermalink





(i) in the subsection heading, by inserting ‘or GPS’ after ‘Phone’;CommentsClose CommentsPermalink





(ii) in paragraph (1), by inserting ‘or GPS’ after ‘phone’ both places that term appears; andCommentsClose CommentsPermalink





(iii) in paragraph (2), by inserting ‘or GPS’ after ‘phone’.CommentsClose CommentsPermalink





(3) CHAPTER ANALYSIS- The table of sections for chapter 47 of title 18, United States Code, is amended by striking the item relating to section 1039 and inserting the following:CommentsClose CommentsPermalink





‘1039. Fraud and related activity in connection with obtaining confidential phone or GPS records information of a covered entity.’.CommentsClose CommentsPermalink





(c) Sentencing Guidelines-CommentsClose CommentsPermalink





(1) REVIEW AND AMENDMENT- Not later than 180 days after the date of enactment of this Act, the United States Sentencing Commission, pursuant to its authority under section 994 of title 28, United States Code, and in accordance with this section, shall review and, if appropriate, amend the Federal sentencing guidelines and policy statements applicable to persons convicted of any offense under section 1039 of title 18, United States Code, as amended by this section.CommentsClose CommentsPermalink





(2) AUTHORIZATION- The United States Sentencing Commission may amend the Federal sentencing guidelines in accordance with the procedures set forth in section 21(a) of the Sentencing Act of 1987 (28 U.S.C. 994 note) as though the authority under that section had not expired.CommentsClose CommentsPermalink

SEC. 5. STATEMENT OF EXCLUSIVE MEANS OF ACQUIRING GEOLOCATION INFORMATION.

(a) In General- No person may acquire the geolocation information of a person for protective activities or law enforcement or intelligence purposes except pursuant to a warrant issued pursuant to rule 41 of the Federal Rules of Criminal Procedure, as amended by section 3, or the amendments made by this Act, or the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).CommentsClose CommentsPermalink





(b) Geolocation Information Defined- In this section, the term ‘geolocation information’ has the meaning given that term in section 2601 of title 18, United States Code, as amended by section 2.CommentsClose CommentsPermalink