Lawsuit challenges Kelsey's Law on cellphone tracking - KCTV5

Lawsuit challenges Kelsey's Law on cellphone tracking

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OVERLAND PARK, KS (KCTV) -

A federal lawsuit is seeking to strike down a new Missouri law making it easier for police to track people's cellphone signals during emergencies.

The cellphone tracking measure was one of many Missouri laws that took effect Tuesday.

A lawsuit filed Monday by Bolivar law firm Douglas, Haun and Heidemann on behalf of resident Mary Hopwood claims the Missouri law conflicts with a federal law governing the information that phone companies can share with law enforcement agencies.  Hopwood is a paralegal for that firm.

When asked about her motivation, a partner in the firm said Hopwood is merely a concerned citizen with an interest in constitutionality.

Specifically, the suit claims the Missouri law takes away a phone company's discretion in providing cellphone information to police, and prevents cellphone customers from suing companies for releasing the information without good reason.

Time is the most critical thing in a missing person's case, but time was against Overland Park police when it came to finding Kelsey Smith back in 2007. Smith had been abducted from the Target by Oak Park Mall, and it took almost three days for police to get the cell phone information that led them to her body.

"She was missing. We were trying to find her. We needed to locate the phone, and they kept saying we can't do that," said Kelsey Smith father, Greg Smith, who pushed for a law that streamlined the system.

One of the items in dispute is taking discretion away from telecommunication providers.  Federal law says providers can divulge locations to police when there is a life or limb emergency.

Kelsey's Law says providers must provide that information in an emergency.  The Constitution says federal law trumps state, but supporters of Kelsey's Law say it makes sense to take that discretion away.

"Nothing against customer service people, but they make what $8-9 an hour. They have no training about what an emergency is or isn't," Smith said.

Missouri House member Jeanie Lauer, who sponsored the law, said she believed the federal lawsuit was appropriate based on legal reviews during the legislative session.

Overland Park Police Chief John Douglass says cell phone companies don't have the same interests that authorities do.

"Their job is to make money. Their job is to provide customer service. Their job is a variety of things. Our job is for protection of people and the rescuing of people when it is necessary," Douglass said.

Douglass said sensitive information is something they have dealt with for decades.

"I can understand why people would be concerned about their privacy, but they have to bestow upon us the same trust they do in every other aspect of things we do that affect them," Douglass said.

Another issue raised in the suit is that Missouri's version of Kelsey's Law takes away the ability to sue a cell phone company for disclosing private info.

Smith says the main pushback over the years has come from the American Civil Liberties Union and trial lawyers.  The ACLU recently came out supporting the privacy intrusion in this context.

The law passed in Kansas in 2009 and went on to be adopted in Nebraska, Minnesota, New Hampshire, North Dakota, Hawaii, Tennessee and now Missouri.

Copyright 2012 KCTV (Meredith Corp.)  All rights reserved.  The Associated Press contributed to this report.

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