Geolocational Privacy and Surveillance Act or the GPS Act
This bill makes it unlawful to intentionally intercept the geolocation information of another person; intentionally disclose or use geolocation information knowing or having reason to know that it was obtained in violation of this bill; or intentionally disclose geolocation information knowing or having reason to know it was obtained as part of a criminal investigation with the intent to improperly obstruct with a duly authorized criminal investigation.
There are several exceptions to this prohibition against intercepting geolocation information: (1) information obtained in the normal course of business, (2) information obtained while conducting foreign intelligence surveillance, (3) consent, (4) information readily available to the public, (5) theft or fraud involving the device, (6) issuance of a warrant, and (7) emergency circumstances.
Geolocation information shall not be used as evidence in a legal proceeding when disclosure of such information would be in violation of this bill.
The bill creates a civil cause of action for any person whose geolocation information is intercepted, disclosed, or intentionally used in violation of this bill.
The bill makes it a criminal offense to knowingly and intentionally obtain, or attempt to obtain, global positioning system (GPS) records from a geolocation information service through fraud or by other means. It also makes it unlawful to intentionally and knowingly sell or transfer GPS records without the consent of the customer.
[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3470 Introduced in House (IH)]
<DOC>
115th CONGRESS
1st Session
H. R. 3470
To amend title 18, United States Code, to specify the circumstances in
which a person may acquire geolocation information, and for other
purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
July 27, 2017
Mr. Farenthold introduced the following bill; which was referred to the
Committee on the Judiciary, and in addition to the Permanent Select
Committee on Intelligence, for a period to be subsequently determined
by the Speaker, in each case for consideration of such provisions as
fall within the jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To amend title 18, United States Code, to specify the circumstances in
which a person may acquire geolocation information, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Geolocational Privacy and
Surveillance Act'' or the ``GPS Act''.
SEC. 2. PROTECTION OF GEOLOCATION INFORMATION.
(a) In General.--Part 1 of title 18, United States Code, is amended
by inserting after chapter 119 the following:
``CHAPTER 120--GEOLOCATION INFORMATION
``Sec.
``2601. Definitions.
``2602. Interception and disclosure of geolocation information.
``2603. Prohibition of use as evidence of acquired geolocation
information.
``2604. Emergency situation exception.
``2605. Recovery of civil damages authorized.
``Sec. 2601. Definitions
``In this chapter:
``(1) Electronic communication service.--The term
`electronic communication service' has the meaning given that
term in section 2510.
``(2) Electronic surveillance.--The term `electronic
surveillance' has the meaning given that term in section 101 of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801).
``(3) Geolocation information.--The term `geolocation
information' means, with respect to a person, any information
that is not the content of a communication, concerning the
location of a wireless communication device or tracking device
(as that term is defined section 3117) that, in whole or in
part, is generated by or derived from the operation of that
device and that could be used to determine or infer information
regarding the location of the person.
``(4) Geolocation information service.--The term
`geolocation information service' means the provision of a
global positioning service or other mapping, locational, or
directional information service to the public, or to such class
of users as to be effectively available to the public, by or
through the operation of any wireless communication device,
including any mobile telephone, global positioning system
receiving device, mobile computer, or other similar or
successor device.
``(5) Intercept.--The term `intercept' means the
acquisition of geolocation information through the use of any
electronic, mechanical, or other device.
``(6) Investigative or law enforcement officer.--The term
`investigative or law enforcement officer' means any officer of
the United States or of a State or political subdivision
thereof, who is empowered by law to conduct investigations of,
or to make arrests for, offenses enumerated in this chapter,
and any attorney authorized by law to prosecute or participate
in the prosecution of such offenses.
``(7) Person.--The term `person' means any employee or
agent of the United States, or any State or political
subdivision thereof, and any individual, partnership,
association, joint stock company, trust, or corporation.
``(8) Remote computing service.--The term `remote computing
service' has the meaning given that term in section 2711.
``(9) State.--The term `State' means any State of the
United States, the District of Columbia, the Commonwealth of
Puerto Rico, and any territory or possession of the United
States.
``(10) Wireless communication device.--The term `wireless
communication device' means any device that enables access to,
or use of, an electronic communication system or service,
remote computing service, or geolocation information service,
if that device utilizes a radio or other wireless connection to
access such system or service.
``(11) Covered service.--The term `covered services' means
electronic communication service, remote computing service, or
geolocation information service.
``Sec. 2602. Interception and disclosure of geolocation information
``(a) In General.--
``(1) Prohibition on disclosure or use.--Except as
otherwise specifically provided in this chapter, it shall be
unlawful for any person to--
``(A) intentionally intercept, endeavor to
intercept, or procure any other person to intercept or
endeavor to intercept, geolocation information
pertaining to another person;
``(B) intentionally disclose, or endeavor to
disclose, to any other person geolocation information
pertaining to another person, knowing or having reason
to know that the information was obtained through the
interception of such information in violation of this
paragraph;
``(C) intentionally use, or endeavor to use, any
geolocation information, knowing or having reason to
know that the information was obtained through the
interception of such information in violation of this
paragraph; or
``(D)(i) intentionally disclose, or endeavor to
disclose, to any other person the geolocation
information pertaining to another person intercepted by
means authorized by subsections (b) through (h), except
as provided in such subsections;
``(ii) knowing or having reason to know that the
information was obtained through the interception of
such information in connection with a criminal
investigation;
``(iii) having obtained or received the information
in connection with a criminal investigation; and
``(iv) with intent to improperly obstruct, impede,
or interfere with a duly authorized criminal
investigation.
``(2) Penalty.--Any person who violates paragraph (1) shall
be fined under this title, imprisoned not more than five years,
or both.
``(b) Exception for Information Acquired in the Normal Course of
Business.--It shall not be unlawful under this chapter for an officer,
employee, or agent of a provider of covered services, whose facilities
are used in the transmission of geolocation information, to intercept,
disclose, or use that information in the normal course of the officer,
employee, or agent's employment while engaged in any activity which is
a necessary incident to the rendition of service or to the protection
of the rights or property of the provider of that service, except that
a provider of a geolocation information service to the public shall not
utilize service observing or random monitoring except for mechanical or
service quality control checks.
``(c) Exception for Conducting Foreign Intelligence Surveillance.--
Notwithstanding any other provision of this chapter, it shall not be
unlawful for an officer, employee, or agent of the United States in the
normal course of the official duty of the officer, employee, or agent
to conduct electronic surveillance, as authorized by the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).
``(d) Exception for Consent.--
``(1) In general.--It shall not be unlawful under this
chapter for a person to intercept geolocation information
pertaining to another person if such other person has given
prior consent to such interception unless such information is
intercepted for the purpose of committing any criminal or
tortious act in violation of the Constitution or laws of the
United States or of any State.
``(2) Children.--The exception in paragraph (1) permits a
parent or legal guardian of a child to intercept geolocation
information pertaining to that child or to give consent for
another person to intercept such information.
``(e) Exception for Public Information.--It shall not be unlawful
under this chapter for any person to intercept or access geolocation
information relating to another person through any system that is
configured so that such information is readily accessible to the
general public.
``(f) Exception for Emergency Information.--It shall not be
unlawful under this chapter for any investigative or law enforcement
officer or other emergency responder to intercept or access geolocation
information relating to a person if such information is used--
``(1) to respond to a request made by such person for
assistance; or
``(2) in circumstances in which it is reasonable to believe
that the life or safety of the person is threatened, to assist
the person.
``(g) Exception for Theft or Fraud.--It shall not be unlawful under
this chapter for a person acting under color of law to intercept
geolocation information pertaining to the location of another person
who has unlawfully taken the device sending the geolocation information
if--
``(1) the owner or operator of such device authorizes the
interception of the person's geolocation information;
``(2) the person acting under color of law is lawfully
engaged in an investigation; and
``(3) the person acting under color of law has reasonable
grounds to believe that the geolocation information of the
other person will be relevant to the investigation.
``(h) Exception for Warrant.--
``(1) Definitions.--In this subsection:
``(A) Court of competent jurisdiction.--The term
`court of competent jurisdiction' includes--
``(i) any district court of the United
States (including a magistrate judge of such a
court) or any United States court of appeals
that--
``(I) has jurisdiction over the
offense being investigated;
``(II) is in or for a district in
which the provider of a geolocation
information service is located or in
which the geolocation information is
stored; or
``(III) is acting on a request for
foreign assistance pursuant to section
3512 of this title; or
``(ii) a court of general criminal
jurisdiction of a State authorized by the law
of that State to issue search warrants.
``(B) Governmental entity.--The term `governmental
entity' means a department or agency of the United
States or any State or political subdivision thereof.
``(2) Warrant.--A governmental entity may intercept
geolocation information or require the disclosure by a provider
of covered services of geolocation information only pursuant to
a warrant issued using the procedures described in the Federal
Rules of Criminal Procedure (or, in the case of a State court,
issued using State warrant procedures) by a court of competent
jurisdiction, or as otherwise provided in this chapter or the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq.).
``(i) Prohibition on Divulging Geolocation Information.--
``(1) In general.--Except as provided in paragraph (2), a
person providing covered services shall not intentionally
divulge geolocation information pertaining to another person.
``(2) Exceptions.--A person providing covered services may
divulge geolocation information--
``(A) as otherwise authorized in subsections (b)
through (h);
``(B) with the lawful consent of such other person;
``(C) to another person employed or authorized, or
whose facilities are used, to forward such geolocation
information to its destination; or
``(D) which was inadvertently obtained by the
service provider and which appears to pertain to the
commission of a crime, if such divulgence is made to a
law enforcement agency.
``Sec. 2603. Prohibition of use as evidence of acquired geolocation
information
``Whenever any geolocation information has been acquired, no part
of such information and no evidence derived therefrom may be received
in evidence in any trial, hearing, or other proceeding in or before any
court, grand jury, department, officer, agency, regulatory body,
legislative committee, or other authority of the United States, a
State, or a political subdivision thereof if the disclosure of that
information would be in violation of this chapter.
``Sec. 2604. Emergency situation exception
``(a) Emergency Situation Exception.--Notwithstanding any other
provision of this chapter, any investigative or law enforcement
officer, specially designated by the Attorney General, the Deputy
Attorney General, the Associate Attorney General, or by the principal
prosecuting attorney of any State or subdivision thereof acting
pursuant to a statute of that State, may intercept geolocation
information if--
``(1) such officer reasonably determines that an emergency
situation exists that--
``(A) involves--
``(i) immediate danger of death or serious
physical injury to any person;
``(ii) conspiratorial activities
threatening the national security interest; or
``(iii) conspiratorial activities
characteristic of organized crime; and
``(B) requires geolocation information be
intercepted before an order authorizing such
interception can, with due diligence, be obtained;
``(2) there are grounds upon which an order could be
entered to authorize such interception; and
``(3) an application for an order approving such
interception is made within 48 hours after the interception has
occurred or begins to occur.
``(b) Failure To Obtain Court Order.--
``(1) Termination of acquisition.--In the absence of an
order, an interception of geolocation information carried out
under subsection (a) shall immediately terminate when the
information sought is obtained or when the application for the
order is denied, whichever is earlier.
``(2) Prohibition on use as evidence.--In the event such
application for approval is denied, the geolocation information
shall be treated as having been obtained in violation of this
chapter and an inventory shall be served on the person named in
the application.
``Sec. 2605. Recovery of civil damages authorized
``(a) In General.--Any person whose geolocation information is
intercepted, disclosed, or intentionally used in violation of this
chapter may in a civil action recover from the person, other than the
United States, which engaged in that violation such relief as may be
appropriate.
``(b) Relief.--In an action under this section, appropriate relief
includes--
``(1) such preliminary and other equitable or declaratory
relief as may be appropriate;
``(2) damages under subsection (c) and punitive damages in
appropriate cases; and
``(3) a reasonable attorney's fee and other litigation
costs reasonably incurred.
``(c) Computation of Damages.--The court may assess as damages
under this section whichever is the greater of--
``(1) the sum of the actual damages suffered by the
plaintiff and any profits made by the violator as a result of
the violation; or
``(2) statutory damages of whichever is the greater of $100
a day for each day of violation or $10,000.
``(d) Defense.--It is a complete defense against any civil or
criminal action brought against an individual for conduct in violation
of this chapter if such individual acted in a good faith reliance on--
``(1) a court warrant or order, a grand jury subpoena, a
legislative authorization, or a statutory authorization;
``(2) a request of an investigative or law enforcement
officer under section 2604; or
``(3) a good-faith determination that an exception under
section 2602 permitted the conduct complained of.
``(e) Limitation.--A civil action under this section may not be
commenced later than two years after the date upon which the claimant
first has a reasonable opportunity to discover the violation.
``(f) Administrative Discipline.--If a court or appropriate
department or agency determines that the United States or any of its
departments or agencies has violated any provision of this chapter, and
the court or appropriate department or agency finds that the
circumstances surrounding the violation raise serious questions about
whether or not an officer or employee of the United States acted
willfully or intentionally with respect to the violation, the
department or agency shall, upon receipt of a true and correct copy of
the decision and findings of the court or appropriate department or
agency promptly initiate a proceeding to determine whether disciplinary
action against the officer or employee is warranted. If the head of the
department or agency involved determines that disciplinary action is
not warranted, such head shall notify the Inspector General with
jurisdiction over the department or agency concerned and shall provide
the Inspector General with the reasons for such determination.
``(g) Improper Disclosure Is Violation.--Any willful disclosure or
use by an investigative or law enforcement officer or governmental
entity of information beyond the extent permitted by this chapter is a
violation of this chapter for purposes of this section.''.
(b) Clerical Amendment.--The table of chapters for part 1 of title
18, United States Code, is amended by inserting after the item relating
to chapter 119 the following:
``120. Geolocation information............................. 2601''.
(c) Conforming Amendments.--Section 3512(a) of title 18, United
States Code, is amended--
(1) in paragraph (2)--
(A) by redesignating subparagraphs (B), (C), and
(D) as subparagraphs (C), (D), and (E), respectively;
and
(B) by inserting after subparagraph (A) the
following:
``(B) a warrant or order for geolocation
information or records related thereto, as provided
under section 2602 of this title;''.
SEC. 3. REQUIREMENT FOR SEARCH WARRANTS TO ACQUIRE GEOLOCATION
INFORMATION.
Rule 41(a) of the Federal Rules of Criminal Procedure is amended--
(1) in paragraph (2)(A), by striking the period at the end
and inserting a comma and ``including geolocation
information.''; and
(2) by adding at the end the following:
``(F) `Geolocation information' has the meaning
given that term in section 2601 of title 18, United
States Code.''.
SEC. 4. FRAUD AND RELATED ACTIVITY IN CONNECTION WITH OBTAINING
GEOLOCATION INFORMATION.
(a) Criminal Violation.--Section 1039(h) of title 18, United States
Code, is amended--
(1) in paragraph (2)--
(A) in subparagraph (A), by striking ``and'' at the
end;
(B) in subparagraph (B), by striking the period at
the end and inserting a semicolon and ``and''; and
(C) by adding at the end the following new
subparagraph:
``(C) includes any geolocation information
service.'';
(2) by redesignating paragraph (4) as paragraph (5); and
(3) by inserting after paragraph (3) the following:
``(4) Geolocation information service.--The term
`geolocation information service' has the meaning given that
term in section 2601.''.
(b) Conforming Amendments.--
(1) Definition amendments.--Section 1039(h)(1) of title 18,
United States Code, is amended--
(A) in the paragraph heading, by inserting ``or
gps'' after ``phone''; and
(B) in the matter preceding subparagraph (A), by
inserting ``or GPS'' after ``phone''.
(2) Conforming amendments.--Section 1039 of title 18,
United States Code, is amended--
(A) in the section heading by inserting ``or GPS''
after ``phone'';
(B) in subsection (a)--
(i) in the matter preceding paragraph (1),
by inserting ``or GPS'' after ``phone''; and
(ii) in paragraph (4), by inserting ``or
GPS'' after ``phone'';
(C) in subsection (b)--
(i) in the subsection heading, by inserting
``or GPS'' after ``Phone'';
(ii) in paragraph (1), by inserting ``or
GPS'' after ``phone'' both places that term
appears; and
(iii) in paragraph (2), by inserting ``or
GPS'' after ``phone''; and
(D) in subsection (c)--
(i) in the subsection heading, by inserting
``or GPS'' after ``Phone'';
(ii) in paragraph (1), by inserting ``or
GPS'' after ``phone'' both places that term
appears; and
(iii) in paragraph (2), by inserting ``or
GPS'' after ``phone''.
(3) Chapter analysis.--The table of sections for chapter 47
of title 18, United States Code, is amended by striking the
item relating to section 1039 and inserting the following:
``1039. Fraud and related activity in connection with obtaining
confidential phone or GPS records
information of a covered entity.''.
(c) Sentencing Guidelines.--
(1) Review and amendment.--Not later than 180 days after
the date of enactment of this Act, the United States Sentencing
Commission, pursuant to its authority under section 994 of
title 28, United States Code, and in accordance with this
section, shall review and, if appropriate, amend the Federal
sentencing guidelines and policy statements applicable to
persons convicted of any offense under section 1039 of title
18, United States Code, as amended by this section.
(2) Authorization.--The United States Sentencing Commission
may amend the Federal sentencing guidelines in accordance with
the procedures set forth in section 21(a) of the Sentencing Act
of 1987 (28 U.S.C. 994 note) as though the authority under that
section had not expired.
SEC. 5. STATEMENT OF EXCLUSIVE MEANS OF ACQUIRING GEOLOCATION
INFORMATION.
(a) In General.--No person may acquire the geolocation information
of a person for protective activities or law enforcement or
intelligence purposes except pursuant to a warrant issued pursuant to
rule 41 of the Federal Rules of Criminal Procedure, as amended by
section 3, or the amendments made by this Act, or the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).
(b) Geolocation Information Defined.--In this section, the term
``geolocation information'' has the meaning given that term in section
2601 of title 18, United States Code, as amended by section 2.
<all>
Introduced in House
Introduced in House
Referred to the Committee on the Judiciary, and in addition to the Committee on Intelligence (Permanent Select), for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on the Judiciary, and in addition to the Committee on Intelligence (Permanent Select), for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations.
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