Supporting the Codification of State and Federal Legislative Proposals Modeled on the Core Principle of the Kelsey Smith Act

Submitted by: Police Investigative Operations Committee

PIOC.014.t2017

WHEREAS, on June 2, 2007, Kelsey Smith was abducted while shopping at an Overland Park, Kansas department store, and security camera imagery of the parking lot left little doubt that immediate action was urgently required; and

WHEREAS, law enforcement quickly determined that the location of her mobile telephone would be of great value to the investigation, and sought those records from the service provider; and

WHEREAS, current federal law leaves the determination of exigency permitting voluntary disclosure of communications records in the hands of the service provider rather than law enforcement, and is permissive rather than mandatory, and that as a result, for four days, law enforcement was denied access to the relevant records by the service provider while protracted discussions took place between the parties over issues of consent, voluntary compliance, and the validity of law enforcement's declaration of an emergency; and

WHEREAS, within 45 minutes of the eventual disclosure of the location information to law enforcement, Kelsey was found deceased; and

WHEREAS, in 2016, the National Center for Missing and Exploited Children (NCMEC) assisted law enforcement and families with more than 20,500 cases of missing children; and

WHEREAS, approximately 4,000 13-24 year olds are murdered every year in the United States1 ; and from 2003 to 2014 there have been approximately 48,000 13-24 year olds murdered in the United States2 ; and in the first half of 2017, using Verizon Wireless as an example, 27,478 requests for information from law enforcement in emergency matters involving the danger of death or serious physical injury were reported3 ; and

WHEREAS, In the wake of her death, Smith's parents started the Kelsey Smith Foundation 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."; and

WHEREAS, in response to the outcome of the Kelsey Smith case, The Kansas Legislature passed the Kelsey Smith Act in 2009 which mandates in part that: "Upon request of a law enforcement agency, a wireless telecommunications carrier shall provide call location information concerning the telecommunications device of the user to the requesting law enforcement agency in order to respond to a call for emergency services or in an emergency situation that involves the risk of death or serious physical harm."4 ; and

WHEREAS, Kansas passed the Kelsey Smith Act in 2009, and similar legislation has been passed in 21 states; and

WHEREAS, the present discretion for permissive disclosure by a service provider rather than a mandatory disclosure based on a law enforcement declaration of emergency has been responsible for responses that are unwisely delayed or unnecessarily withheld; and

WHEREAS, the same permissive disclosure at the service provider's discretion rather than a mandatory disclosure based on a law enforcement declaration of emergency works to negatively impact public safety and welfare by limiting law enforcement's ability to respond to, prevent and bring to justice those responsible for the murder or serious physical injury of abducted or missing and vulnerable minor or adult victims; and

WHEREAS, In the absence of the core principal of the Kelsey Smith Act, a permissive disclosure at the service provider's discretion rather than a mandatory disclosure based on a law enforcement declaration of emergency negatively impacts the public safety and welfare by restricting law enforcement's ability to quickly access critical information on the cellphones of victims to save lives; now, therefore be it

RESOLVED, that this expedited response should be available in situations involving the disappearance of an individual, the report of a runaway child or report of a missing person for which no criminal charge may be readily apparent but where law enforcement in its professional judgment believes urgency exists; and

RESOLVED, that the IACP strongly supports the ongoing legislative efforts at both the State and Federal levels to codify legislative proposals adopting the core principal of the Kelsey Smith Act, provided that any legislation drafted should conform without compromise to the core principal of the Kelsey Smith act, without the introduction of additional restrictions; and

RESOLVED, that IACP supports the ongoing Congressional effort expended to craft and perfect H.R. 4889 - The Kelsey Smith Act - 114th Congress (2015-2016) and S.2770 - The Kelsey Smith Act - 114th Congress (2015-2016) which are currently languishing in the 115th Congress, consistent with the above statement; and

FURTHER RESOLVED, that the IACP strongly supports efforts by its membership and its Committees to raise awareness on how this issue impacts day-to-day police work and obstructs public safety from obtaining the information necessary to save lives and prevent future deaths

1 Bureau of Justice Statistics

2 FBI UCR Reports

3 http://www.verizon.com/about/portal/transparency-report/us-report/

4 http://kslegislature.org/li_2012/m/statute/022_000_0000_chapter/022_046_0000_article/022_046_0015_section/022_04 6_0015_k.pdf