Ahead of National Crime Victim Rights Week, the House passed the “Kelsey Smith Act” this afternoon by an overwhelming bipartisan vote of 113-5.
House Bill 315 allows law enforcement officials to access a cell phone’s tracking technology to quickly locate a missing person in an emergency situation and the legislation shields cell phone service providers from prosecution for potential privacy violations while working with law enforcement officials.
The need for a change in the law first emerged a decade ago when police encountered barriers in their efforts to finding a missing teenager, thought to have been abducted and in possible danger.
In 2007, 18-year-old Kelsey Smith went missing in broad daylight from a Kansas City area shopping mall. Her abandoned car was found several hours later in a nearby parking lot and a search group was formed — called Kelsey’s Army — hoping to find the missing recent graduate of Shawnee Mission West High School. Family and friends put up flyers around the area hoping for some leads.
While the search effort made some progress from shopping mall surveillance cameras that picked up suspicious activity identifying a perpetrator, it could provide no help in locating Smith. Kelsey’s Army and local police then turned to her cell phone provider for help. Locating her cellphone, they thought, could mean locating the missing teenager.
Finding evidence of a recent “ping” from Kelsey’s cell phone — cell phones are in constant communication with nearby communications towers, even when they’re not being used — officials contacted her cell phone company to get Smith’s phone records in hopes of pinpointing her exact location.
But some unexpected difficulties were encountered in their ability to gain access to her cell phone location information. The company, out of fear of being sued, dragged its feet for four days before handing over the cell phone records to investigators. The company was reluctant at to provide Smith’s records because of laws designed to protect privacy; cooperating with law enforcement potentially put them at risk of a lawsuit for divulging the private information to a third party. The FBI finally stepped in and got the records.
Cell phone service providers routinely assist subscribers in locating lost or stolen phones, but this help is offered only to the owner and no one else. Oddly, that even includes law enforcement in an emergency rescue situation. Court orders can be issued to gain access to the information, but that takes up critical time.
Once the legal barriers to access were overcome, her cell phone’s coordinates were systematically narrowed to a specific cell phone tower and Kelsey Smith was found shortly thereafter, sadly with tragic results. You can learn more about Kelsey’s story here.
In the wake of her death, Smith’s parents started the Kelsey Smith Foundation to educate young adults on how to avoid becoming crime victims and to advocate for state and federal legislation 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 and/or missing.”
Twenty-three states have passed individual versions of “The Kelsey Smith Act,” and federal legislation, HR 4889, is currently languishing in Congress.
While urging Rhode Island lawmakers to pass the Kelsey Smith Act, Missey Smith, Kelsey’s mother, said to reporters, “when our daughter went missing, we could not get her cell phone provider to release her location information.”
An earlier attempt at passing a similar federal legislation, HR 1575, failed due to privacy concerns. The American Civil Liberties Union said at the time that a change in federal law would open the door to abuses based on a too-vague definition of what constitutes an emergency. “An emergency can’t be a magic word — where all police have to do is say ‘emergency’ and cellphone companies release information,” commented Chris Calabrese, legislative counsel for the ACLU.
North Carolina’s Kelsey Smith Act, if eventually passed into law, will require cell phone service providers to “ping” a phone at the request of law enforcement if authorities believe anyone in possession of the phone is in danger.
The legislation now heads to the Senate for consideration.