Eric Tucker

Clearer guidelines are needed for law enforcement's use of secretive and intrusive cellphone tracking technology, and police and federal agents should be upfront with a judge about their deployment, the House Oversight and Government Reform Committee said in a report.

The report examines the use of cell-site simulators by federal, state and local law enforcement agencies. The technology works by mimicking a cellphone tower, allowing law enforcement to collect basic data — such as a unique subscriber number — from cellphones in a particular area or neighborhood. The data can help police determine the location of a targeted phone without the user even making a call or sending a text message. The surveillance devices have been broadly adopted by police departments and federal agencies, which see them as vital in helping track the location of criminal suspects. But the technology has raised Fourth Amendment concerns among privacy advocates for its ability to collect data not only about the targets of an investigation but also innocent bystanders who happen to be within range of the simulator device.

The data breach at Target that exposed millions of credit card numbers has focused attention on the patchwork of state consumer notification laws and renewed a push for a single national standard.

Most states have laws that require retailers to disclose data breaches, but the laws vary wildly. Consumers in one state might learn immediately that their personal information had been exposed, but that might not happen in another state, and notification requirements for businesses depend on where their customers are located. Attorney General Eric Holder has joined the call for a nationwide notification standard, but divisions persist, making a consensus questionable.

"We're stuck with the state-by-state approach unless some compromise gets done at the federal level," said Peter Swire, a privacy expert at Georgia Tech and a former White House privacy official. Despite general agreement on the value of a national standard, there are obstacles to a straightforward compromise:

• Consumer groups don't want to weaken existing protections in states with the strongest laws.
• Retailers want laws that are less burdensome to comply with and say too much notification could cause consumers to tune out the problem.
• Congress is looking at different proposals for how any federal standard should be enforced and what the threshold should be before notification requirements kick in.

[March 10]