July 31, 2012

Wyden Amendments to Cyber Bill Clarify Rules for GPS Tracking; Seek Privacy Protection in the Cloud

Washington, D.C. – As the technological capabilities of cloud storage and location tracking continue to grow, U.S. Senator Ron Wyden (D-Ore.) has filed amendments to the Cybersecurity Act being debated in the Senate to provide clear rules for how and when the government can access location tracking data from individuals’ cell phones and other electronic devices, limit government access to private information stored by cloud storage services alongside government data, and strengthen limits on sharing individuals’ personal information with law enforcement.

In addition to amendments Wyden joined as part of a bipartisan group of lawmakers, Wyden filed three amendments himself: An amendment that would attach the bipartisan GPS Act to the Cybersecurity Act, the “Stay Off My Cloud” amendment and an amendment explicitly stating that nothing in the Cybersecurity Act can be construed to give the President the authority to enter into binding international agreements on cyber security without the advice and consent of the Senate.

“The technology available for government and law enforcement to fight crime on and off line has advanced so quickly that the law has not been able to keep pace,” Wyden said.  ”Whether through GPS tracking or monitoring information within the cloud, law enforcement and the government must maintain a balance between combating potential crimes and preserving the right to privacy of all Americans. Like many aspects of the Cybersecurity Act, these amendments aim to strike that balance and move the law into the digital age.”


The GPS Act amendment provides clear rules for law enforcement and commercial entities regarding the access, use and dissemination of location tracking data collected through cell phones and other personal GPS technology.  Right now, there are no universal guidelines governing when law enforcement may access Americans’ location data or secretly track Americans’ whereabouts using their cell phones.


Prior to the advent of cell phones and personal GPS technology, law enforcement would have to spend a great deal of money and man hours to track a suspected criminal. The built-in costs helped to ensure that law enforcement would only track people if they had strong evidence those people were party to a crime.  The relative ease with which the government can now gather large amounts of tracking data for millions of people creates legitimate privacy concerns and conflicting requirements for obtaining warrants and other tracking permissions in different jurisdictions. The GPS Act amendment streamlines those requirements and ensures strong personal privacy protections.


As cloud storage technology continues to improve, more and more government and personal information is being stored by cloud storage services. Provisions in the Cybersecurity Act give government access to “real time or near real time” reporting of cyber crime taking place within the cloud. Unfortunately, the provisions are written so broadly that it could be reasonably argued that the government will have real-time access to the personal information of law-abiding Americans. Wyden’s “Stay Off My Cloud” amendment protects that private information by narrowing the government’s access to only government information and not private information stored alongside cloud storage services. 


A third Wyden amendment will make clear that no provisions in the Cybersecurity Act can be construed by the administration as providing authority for entering into binding international agreements on cyber security. The administration has argued in the past that loosely worded provisions in the Pro IP Act of 2008 gave them the authority to enter into a binding agreement on intellectual property without the approval of Congress pursuant to the Anti-Counterfeiting Trade Agreement or ACTA.


Please click here to learn more about these amendments.