Senate Questions NSA Lawyer on Geolocation Tracking

Wednesday, July 27, 2011

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At hearings conducted by the Senate Select Committee on Intelligence, the general counsel for the National Security Agency (NSA) Matthew Olsen was reluctant to specify whether he believes the government can track the movements and location of U.S. citizens by way of GPS and geolocation devices installed in consumer electronics.

Sen. Ron Wyden (D-Oregon) asked Olsen several times if the government has the legal authority to “use cell site data to track the location of Americans inside the country.”

“There are certain circumstances where that authority may exist... It is a very complicated question," Olsen said.

Olsen has been nominated to head up the the National Counterterrorism Center and was the subject of the confirmation hearings Tuesday morning. Olsen indicated the intelligence community was in the process of drafting a memo that would present a more detailed answer to the committee's concerns.

Earlier this month, Senators Ron Wyden and Mark Udall (D-Colorado) drafted a letter addressed to the Director of National Intelligence James Clapper with a simple, straight forward question: “Do government agencies have the authority to collect the geolocation information of American citizens for intelligence purposes?”

Wyden and Udall are both members of a Senate intelligence oversight committee that monitors sixteen intelligence agencies. The Senators want to know how these agencies currently interpret laws governing the surveillance of U.S. citizens via electronic mediums.

The letter stated:

“[R]ecent advances in geolocation technology have made it increasingly easy to secretly track the movements and whereabouts of individual Americans on an ongoing, 24/7 basis... Law enforcement agencies have relied on a variety of different methods to conduct this sort of electronic surveillance, including the acquisition of cell phone mobility data from communications companies as well as the use of tracking devices covertly installed by the law enforcement agencies themselves,” the letter states.

“Clearly Congress needs to also understand how intelligence authorities are being interpreted as it begins to consider legislation on this issue,” the letter also contended.

Senator Wyden began drafting legislation last spring that would require law enforcement officials to obtain a court-ordered search warrant before conducting electronic tracking operations on cars and cell phones.

The proposed legislation, called the Geolocational Privacy and Surveillance Act (GPS Act) pits service providers, would secure U.S. citizen's privacy in regards to the use of GPS and wireless device location monitoring in the course of investigations.

The Justice Department has previously argued that citizens have no reasonable expectation of privacy concerning stored records detailing the location of their cell phones, and other law enforcement officials have speculated that requiring warrants for mobile surveillance will hinder investigations.

Privacy advocates insist that geolocation monitoring and records should be considered in the same light as the wiretapping of citizen's communications, arguing that protections would not prevent tracking or access to stored records by law enforcement, but would simply require they make a case for due cause before a judge and obtain a warrant first.

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