Civil-liberties advocates had previously raised concerns, The News & Observer reported last month when the bill was debated in committee for the first time. Some, but not all, of those concerns were addressed with changes just prior to the vote on Tuesday.
The Fourth Amendment requires police to have a warrant, supported by probable cause, to search or seize people or their property. But this bill, if it becomes law, would let police get around that in situations in which officers believe they could stop someone from facing "a risk of death or serious physical harm."
Specifically, the warrantless surveillance proposed in the bill is only supposed to be used in time-sensitive emergencies — like to track down and save a kidnapping victim. The bill is named the Kelsey Smith Act, in honor of a Kansas teenager who was kidnapped, raped and murdered 14 years ago. Similar versions have already passed in other states.
The North Carolina version of the bill originally proposed zero oversight of police to make sure they didn't abuse the power this would give them, The N&O reported.
The bill's lead sponsor, Republican Rep. Pat Hurley, initially rebuffed attempts by the American Civil Liberties Union to add in some oversight provisions. She said police would be "doing this every day" and so any oversight of their actions would take up too much time.
But that changed Monday, as several of the ACLU-backed amendments were added into the bill. The next day, it passed the House with virtually no debate and now goes to the Senate.
"It will save lives," Hurley said when she introduced the bill on the House floor Tuesday, just before the 116-0 vote in its favor.
Ann Webb, senior policy counsel for the ACLU of North Carolina, said they will continue pushing for some changes in the Senate but she's pleased that the House agreed to some privacy safeguards.
"We recognize there are circumstances where safety and time may permit warrantless access to cell phone location data, and that would be right thing to do," Webb said Tuesday evening after the bill passed the House. "... But we would urge keeping it as close to the constitutional warrant requirement as possible, given how incredibly sensitive cellphone location data is."
Changes for Fourth Amendment Concerns
Legislators made two main changes to the bill Monday, prior to passing it Tuesday.
One was a requirement that if police do make a phone company hand over someone's location without a warrant, the police would have to go in front of a judge within 72 hours to explain what they got and why they asked for it.
The judge would then be required to rule on whether it really was an emergency, and whether the police collected the appropriate information or if they asked for too much.
The second change was that if the judge does rule against all or part of the warrantless surveillance, then the evidence in question couldn't be used as evidence in court — just like anything else that's unconstitutionally obtained.
Webb praised Hurley and other sponsors of the bill for agreeing to the oversight and safeguards. So did Rep. Keith Kidwell, a Republican from Beaufort County who has sponsored several anti-big-government bills — like one that passed the House on Monday to preemptively ban the state from mandating coronavirus vaccines.
Webb said the ACLU will now be asking senators for a few additional changes to the cellphone tracking bill.
For instance, she said, they also want law enforcement to keep a log of who they're tracking and then notify the people about the tracking after the fact, "so we can make sure that no one's information was collected from a private company under false pretenses."
Webb also said that if evidence is ruled inadmissable and won't be used in court, police should then be required to delete it.
"Frankly, it could be subject to security breaches," she said.
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