|Maine's Law Factory|
Maine is one of the few states that are considering legislation to regulate access to cellphone records. L.D. 415, sponsored by Assistant Senate Minority Leader Roger Katz, R-Augusta, an attorney, would force police to get warrants to access location information from cellphones or other GPS-enabled devices, except in emergencies such as imminent threats of bodily harm.
Warrants Would be Required for Cell Phone Location DataCurrently, the police can obtain cell phone location information or call records by filing a simple subpoena requesting the records. There are no limits on the time covered and no requirements that the anyone be notified before or after such records are obtained. L.D. 415 would change that:
Except as provided in this subchapter, a government entity may not obtain location information without a valid warrant issued by a duly authorized judge or justice .... A judge or justice may issue a warrant for the location information of an electronic device pursuant to this section for a period of time necessary to achieve the objective of the authorization, but in any case the warrant is not valid for more than 10 days after the issuance. A judge or justice may grant an extension of a warrant upon a finding of continuing probable cause and a finding that the extension is necessary to achieve the objective of the authorization. An extension may not exceed 30 days.But police could still get the information without a warrant in a limited number of cases:
- To respond to the user's call for emergency services;
- With the informed, affirmative consent of the owner or user of the electronic device concerned, except when the device is known or believed by the owner or user to be in the possession of a 3rd party known to the owner or user;
- With the informed, affirmative consent of the legal guardian or next of kin of the owner or user, if the owner or user is believed to be deceased or reported missing and unable to be contacted; or
- If the government entity reasonably believes that an emergency involving immediate danger of death or serious physical injury to a person requires the disclosure, without delay, of location information concerning a specific person and that a warrant cannot be obtained in time to prevent the identified danger, and the possessor of the location information, in good faith, believes that an emergency involving danger of death or serious physical injury to a person requires the disclosure without delay.
People Who Are Monitored Must be NotifiedIf the location data is obtained with or without a warrant, the person must be notified within 3 days:
Unless delayed notice is ordered...the government entity shall provide notice to the owner or user that location information was obtained by the government entity from that owner's or user's electronic device within 3 days of obtaining the location information. ...The notice must contain the following information:
- A. The nature of the law enforcement inquiry, with reasonable specificity;
- B. The location information of the owner or user that was supplied to or requested by the government entity and the date on which it was provided or requested;
- C. If location information was obtained from a provider of electronic communication service or location information service or other 3rd party, the identity of the provider of electronic communication service or location information service or the 3rd party from whom the information was obtained; and
- D. Whether the notification was delayed pursuant to subsection 2 and, if so, the court that granted the delay and the reasons for granting the delay.
- A. Immediate danger of death or serious physical injury;
- B. Flight from prosecution;
- C. Destruction of or tampering with evidence;
- D. Intimidation of a potential witness;
- E. Substantially jeopardizes an investigation; or
- F. Undue delay of a trial.
Under such circumstances, the notice can be delayed for 90 days, and then for an additional 90 days if an the court finds that there is continuing risk of an adverse result.
The maine attorney general's office claims that complying with the notice requirements would cost more than $500,000 over the next 4 years. The costs are reflected in the bill's fiscal note. Not obtaining warrants or notices would be much cheaper so I guess that's probably the way to go.