Sen. Ron Wyden: Protecting mobile privacy (Q&A)

It may come as a surprise to know that police generally need a warrant to search your house, but not to track your whereabouts through your cell phone.

This is what Sen. Ron Wyden, an Oregon Democrat who has become the Senate's leading champion of electronic privacy, wants to change. Wyden recently spoke with CNET in an interview transcribed below about his forthcoming legislation.

It's hardly Wyden's first foray into technology. In 2006, he introduced a pro-Net neutrality bill, opposed a renewal of the Patriot Act, and proposed restrictions on the Bush administration's controversial Total Information Awareness program. He championed limits on what Internet access taxes state and local governments could collect and co-authored a CNET op-ed article in 2003 about curbing e-mail spam.

This time, Wyden is looking not just at cell phones, but also at the police practice of planting a physical GPS bug on someone's vehicle without obtaining a search warrant from a judge first. This, he says, violates the Fourth Amendment right to be free from "unreasonable" searches. (See our report on how courts have been divided on whether to require search warrants.)

Q: Do you have any commitment from the leadership to move any of your privacy proposals forward?
Ron Wyden: I'm not trying to pin down specific members of the leadership at this point, but I've been very encouraged about the response that we're getting.

I think that a lot of people have not really put their arms around the dimensions of this, the fact that everybody's got a handheld electronic device, a cell phone, a GPS system. Everybody's carrying them around everywhere and probably aren't thinking that much about the fact that someone may be keeping tabs on them. I think this is resonating with people. Obviously what we're going to be doing now is working on getting the bill in. I'm very encouraged to have (an ally in Utah Rep.) Jason Chaffetz, who I think is a young, smart, technologically savvy conservative. So we're going to spend some time working through the details. I'm certainly encouraged by what we're picking up, that's for sure.

What about the need for legislation? Isn't there an argument that you should let the common law of privacy develop, that you should let the courts that are spending a lot of time on this figure this out, and we'll get the best approach that way?
Wyden: First of all, I think this is a policy issue that shouldn't just be bumped to the court system.

Number two, the courts are certainly wrestling with this thus far in a way that isn't bringing a lot of clarity to this issue. As a result, the legitimate interests... people's legitimate right to privacy -- and ensuring the country, at a time where there are serious threats, the collective security is protected as well. The balance is not being reached particularly well given this situation of just allowing it to percolate it through the courts.

Now, some may say: Well, let's sit around and wait for the U.S. Supreme Court to take it, but good luck with that. They've got a busy agenda... What I've tried to do is build on some of the sensible principles that have helped resolve this issue in the past (including) probable cause. I think we'd be better off trying to forge a consensus, get bipartisan support, and do what legislators are supposed to do. It's possible that the Supreme Court could deny standing and all sorts of other procedural reasons, and the issue could go on without being resolved.

There's the Digital Due Process coalition that includes Google, Microsoft, AT&T, ACLU, and Americans for Tax Reform, and which has also been calling for location privacy protections. Have you been in discussions with them about this?
Wyden: We've talked to a whole host of stakeholders, the companies, the various folks on different sides of this kind of issue at some length. And we're encouraged by the responses we've been getting.

The Justice Department said in briefs before the Third Circuit that it needs these techniques and it doesn't think the probable cause warrant standard is constitutionally necessary. Are you worried about pushback from them? Have you had any discussions with them?
Wyden: We've had a number of discussions with the Justice Department already. They're very much aware of the bill.

My sense is -- and we'll see as we get the bill introduced -- we'll see something of a division of opinion in terms of what we're proposing. I think there are some in the Justice Department and law enforcement and intelligence generally who think that this field really does need some clarity and there's a role for precisely what we're doing.

And then there are some who won't be in favor of legislation and will largely say, "look it's a dangerous time and we need to get our hands on all of this information." To that I say: that kind of attitude will not produce the kind of certainty and predictability that we need to address legitimate national security interests and a respect for people's privacy. This is more likely to cause confusion and frustration of interests in both areas.

So you don't have any read on whether the Justice Department and law enforcement officials, the International Association of Chiefs of Police, and so on would support or oppose any of your proposals?
Wyden: Based on our discussions, my sense is that they will wait to see an actual piece of legislation proposed, number one. Two, there's a division of opinion even within law enforcement about whether or not there should be a bill, and whether an approach like this is warranted.

(In cases like U.S. v. Maynard) you had major convictions overturned because people were using outdated precedents rather than getting a probable cause warrant. There really is something to be said for our position, which is that all sides are wasting huge chunks of time and big dollars going out and running a lawyers' full employment program--that you wouldn't have if you had clear-cut rules.

It seems like the high water mark for House Republicans on privacy was when they had control of the House in the late Clinton administration. I think it was Dick Armey who slapped reporting requirements on Carnivore through the appropriations process. Do you sense that the new Republican House majority is more pro-privacy now, that this will be a bipartisan issue?
Wyden: I'll let Jason Chaffetz and the thoughtful young Republicans give their own assessment about their party. But I think this is getting to be an issue that a person on the street identifies with.

What I've tried to do...is take it outside Washington and say that everyone is walking around with a handheld electronic device. And if you go out and ask these people about everybody collecting vast amounts of information about them that is really quite accurate and quite detailed, most people on the street would say, what's the deal here? How's my privacy going to be protected? I'm not a terrorist. And I want to make sure that people who are terrorists, who are threats to the country (can be tracked). But a law-abiding American doesn't want their privacy thrown in a trash can.

I think that this is the kind of issue that is going to really strike people as: How's it going to work with respect to companies collecting all this information on me? Where's it going to go? Are government agencies just going to go out there and get everything? What are the rules? Do they have to show any evidence?

In terms of the actual mechanics of this, we've been talking only about cell phone tracking. But you're also planning a bill on GPS tracking, meaning police using actual physical bugs. Are you thinking about two different bills?
Wyden: No--we're looking to see if we can put this in one bill. I'm trying to write a bill that would affect both cell phones and GPS systems.

Would this be under the purview of the Senate Judiciary Committee?
Wyden: My guess is that a bill like this would be referred to Judiciary and Intelligence. If it doesn't get an initial referral to both committees, it'll make a stop on both committees.