SENATE BILL REPORT

SB 5158

This analysis was prepared by non-partisan legislative staff for the use of legislative members in their deliberations. This analysis is not a part of the legislation nor does it constitute a statement of legislative intent.

As of January 26, 2015

Title: An act relating to requiring call location information to be provided to law enforcement responding to an emergency.

Brief Description: Requiring call location information to be provided to law enforcement responding to an emergency.

Sponsors: Senators McCoy and Fraser.

Brief History:

Committee Activity: Law & Justice: 1/26/15.

SENATE COMMITTEE ON LAW & JUSTICE

Staff: Tim Ford (786-7423)

Background: In 2007 a young woman named Kelsey Smith died after being kidnapped; she had a cell phone that might have revealed her location in time for emergency response, but law enforcement was unable to obtain her cell phone's location from the telecommunications service provider until more than three days had elapsed. Ms. Smith's family has established a foundation in her name that works to pass state laws to provide law enforcement with a way to quickly ascertain the location of a wireless telecommunications device if a person has been determined, by law enforcement, to be at risk of death or serious physical harm due to being kidnapped or missing.

Federal law prohibits providers of electronic communication services to the public from knowingly divulging records or other information pertaining to a customer, except under specific circumstances, such as pursuant to a warrant. Another circumstance in which providers are authorized to disclose records or information pertaining to customers is disclosure to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure, without delay, of information relating to the emergency. A number of states have enacted laws to regulate or encourage the disclosure by providers of cell phone location information.

The Fourth Amendment of the United States Constitution and Article I, section 7 of the state Constitution prohibits the government from conducting a warrantless search, unless an exception applies. Two exceptions from the warrant requirement that the court recognizes are when a party consents to the search and when disclosure is necessary without waiting for a court order, due to exigent circumstances such as an emergency involving immediate danger of death or serious bodily injury. Although some federal court decisions have held that the government does not need a warrant under the Fourth Amendment to obtain cell phone location data, the analysis under the state Constitution may be different. Currently Washington prosecuting attorneys advise law enforcement to obtain search warrants before requesting cell phone location data from service providers.

Summary of Bill: Wireless telecommunications providers must provide call location information for the telecommunications device of a user when requested by a law enforcement agency responding to an emergency involving risk of death or serious physical harm. Law enforcement agencies may not request this information for any other purpose. Law enforcement agencies must check with the FBI crime information center, and any other databases to determine if the person requesting the information has a history of domestic violence, or if either the person requesting the information or the person for whom the call location information is being requested is participating in the address confidentiality program. Law enforcement agencies may not provide call location information to any person with a history of domestic violence or who is participating in the address confidentiality program unless pursuant to a court order. No cause of action may be brought in any court against wireless telecommunications providers for providing call location information while acting in good faith and in accordance with this act.

All wireless telecommunications providers registered to do business in Washington and all resellers of wireless telecommunications services must submit emergency contact information to the Washington State Patrol (WSP), and submit new information immediately if there is any change. WSP must maintain a database with emergency contact information for all of the wireless telecommunications providers and make the information immediately available upon a request from law enforcement. WSP may adopt rules as needed to fulfill the requirements of this act.

Appropriation: None.

Fiscal Note: Requested on January 21, 2015.

Committee/Commission/Task Force Created: No.

Effective Date: Ninety days after adjournment of session in which bill is passed.

Staff Summary of Public Testimony: PRO: This bill was introduced three years ago and is in response to the Kelsey Smith kidnapping and death. Law enforcement might be able to save someone's life if they are able to obtain their cell phone location information quickly from the telecommunications providers. The language may need to be amended to meet the requests of the domestic violence victim advocates and that is a friendly amendment. Law enforcement should be able to obtain information about someone being a domestic violence or stalking victim from any person and not just the two sources listed in the bill. Law enforcement should also be able to obtain the call location information with a warrant but the bill doesn't include that option.

Persons Testifying: PRO: Senator McCoy, prime sponsor; Rob Huss, WA State Patrol; Grace Huang, WA State Coalition Against Domestic Violence; James McMahan, WA Assn. of Sheriffs and Police Chiefs.