Seven Communications Bills, One Gruesome Story

A House panel is holding a hearing on Wednesday to discuss a whopping seven communications-themed bills. A lot of attention will go towards a measure that would institute a hard annual budget for the recently modernized federal phone and internet subsidy program.

But the panel will also delve into legislation that pits the issues of personal privacy and law enforcement against each other in situations where people could be in grave danger.

The Kelsey Smith Act would make it easier for police to find victims of kidnappings. The gruesome nature of the case that inspired the bill makes the delicate balance between privacy and security even tougher to tread. The hearing will take place in the House Energy and Commerce Communications and Technology Subcommittee .

The bill would require telecommunications providers to provide call location information of a device either used to make a 911 call or one that police believe is with someone in risk of death or serious physical harm.

Kansas Republican Rep. Kevin Yoder sponsors the bill named in honor of Kelsey Smith, who was abducted nine days after her high school graduation in Kansas. She was discovered dead four days after that in Missouri after suffering horrific emotional and physical trauma before her murder.

Regional interest plays a role in the support — Kansas Republicans Reps. Mike Pompeo and Lynn Jenkins join Missouri Democrat Emanuel Cleaver as co-sponsors of the bill.

The Smith family attempted for days to get help from Kelsey’s cellphone provider, Verizon, according to written testimony from Kelsey Smith’s mother prepared for Wednesday’s hearing. Missey Smith said the company heard from family members, law enforcement officials and even the district attorney’s office through a subpoena to acquire the pertinent information.

By the end of the third day, the Federal Bureau of Investigation was eventually able to get location data for Smith’s daughter. The next morning, the data led to the discovery of Kelsey Smith’s body.

Missey Smith’s testimony recalls the legal and bureaucratic difficulties she found during the ordeal and even in the aftermath. According to her testimony, Verizon and its lawyers affirmed that the Smiths didn’t make it clear exactly what information they were looking for.

Her testimony puts it this way: “Kelsey’s law saves lives. It works and the good news is that the cost is NOTHING!! … After this legislation has passed at the state level, we have received emails and heard from 911 managers of how the law works and situations where lives were saved.”

Since 2007, 22 states have passed versions of the Kelsey Smith Act. Indiana became the most recent to pass the legislation on March 21. Missey Smith says the measure “has had bipartisan support at the state level.”

But privacy concerns still loom. An American Civil Liberties Union executive will testify Wednesday, saying the group won’t support the bill in its current form because it does not include “sufficient safeguards” for Americans’ privacy.

The ACLU says an individual’s location information is protected under Fourth Amendment rights, and that telcos are required to keep that information safe from both the public and government.

The organization also worries that mandating companies to comply with location requests would lead to abuse of the system and over-requests of location information. This in turn would lead to wrongful disclosures.

The civil rights group suggests adjusting the law to provide judicial review of the disclosures and allowing enforceable remedies when location information is acquired illegally. The ACLU also wants to require the police to show “probable cause” before requesting location information. The bill’s current standard is “reasonable belief.”

Yoder isn’t buying the idea that his proposal sacrifices privacy rights but his staff says he is open to making changes. “Congressman Yoder believes the Kelsey Smith Act has to both give law enforcement the tools they need to save lives and properly balance legitimate privacy protections,” a spokesman for Yoder said in an email. “He is aware of these concerns and looks forward to working with all interested parties as the committee process continues to put forth a consensus bill.”

The Smiths also know that this is an issue, and Missey Smith plans to address it in her opening statement.

“There are usually two main concerns when it comes to this bill; those are privacy rights and improper use by law enforcement,” Smith’s testimony says. “The Act only allows law enforcement to access the location of a wireless device. It does not allow the search of a device’s contents.”

Smith also will argue that the bill would not authorize improper use by law enforcement, such as search of texts, emails, photos or even phone-call history.

The legislation has failed to pass in six states despite the 22 success stories from other states, according to Kelsey’s Army, the Kelsey Smith Foundation. Arizona, Illinois, Michigan, Ohio, Massachusetts and Vermont all failed to pass the bill at the state level.

CTIA the Wireless Assocation, a group representing big shots such as AT&T Inc. and Verizon Communications, will express its support for the Kelsey Smith Act in its prepared remarks. But the group will urge for the inclusion of a provision to make sure providers complying with location requests would be protected from civil or administrative liability.

This is the sixth year that the bill has been been introduced in the House. It has only advanced from a committee once before. That was in July 2014 when the Energy and Commerce Committee approved it on a voice vote.

The discussion is likely to be more nuanced than more security vs. privacy debates. Yoder himself isn’t a security hawk by any means. The Kansas lawmaker is also the sponsor of Email Privacy Act, a bill that would update the 1986 Electronic Communications Privacy Act. The measure has been praised by the tech and privacy communities and currently has 314 cosponsors. The House Judiciary Committee will mark up that bill on Wednesday.

Morning Consult