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Missouri's 'Kelsey's law' challenged in court

Tuesday, August 28, 2012 | 5:47 p.m. CDT

JEFFERSON CITY — A new Missouri law making it easier for police to track people's cellphones in emergencies is being challenged in court on claims that it conflicts with a federal law that grants greater privacy protections to phone companies and their customers.

The Missouri law that took effect Tuesday requires phone companies to help law enforcement agencies track the cellphone signal of 911 callers or ping a phone's location when there is danger of death or serious physical injury. It's similar to laws enacted in several other states since the 2007 abduction and murder of a Kansas teenager whose body was found in Missouri only after her cellphone provider eventually cooperated with police.

A lawsuit filed Monday in U.S. District Court claims Missouri's mandate for phone companies to supply information to police clashes with a federal law. That law gives telecommunications providers discretion in determining whether a police request truly constitutes an emergency that would justify sharing information without a court order or subpoena.

The lawsuit was filed on behalf of Bolivar resident Mary Hopwood. It also notes that Missouri's law denies people the right to sue phone companies for providing police information under the state law, whereas the federal law allows grounds for such lawsuits.

It claims Missouri's law should be struck down under the supremacy clause of the U.S. Constitution, which says federal laws supersede those in states. It also seeks a restraining order or injunction prohibiting enforcement of Missouri's law, and seeks class action status to represent millions of cellphone subscribers in the state.

"The law is obviously well-intentioned, and we all know that it arises from tragic circumstances," said Bolivar attorney Craig Heidemann, who filed the lawsuit. But he said a patchwork of differing cellphone information laws in states could create uncertainty for phone customers.

"If I take my cellphone to California, I have more rights. If I use my cellphone in Missouri, I have less rights. So really it comes down to a privacy issue," Heidemann said.

Missouri Rep. Jeanie Lauer, who sponsored the law, said attorneys for the legislature and phone companies had not raised concerns when the measure was being considered by legislators. It passed the Missouri House of Representatives 142-3 in March and the Senate 32-1 in May.

"When writing the language contained in the bill, we looked closely at what other states had done as well as at federal law," said Lauer, R-Blue Springs. "I'm confident the bill we passed will hold up under the scrutiny of the court."

Nanci Gonder, a spokeswoman for Attorney General Chris Koster, said state attorneys "intend to vigorously defend the constitutionality of this law."

Missouri's measure has been dubbed "Kelsey's law" by supporters in remembrance of 18-year-old Kelsey Smith, of Overland Park, Kan. Cellphone signals helped lead police to her body in a wooded area of Missouri four days after she was abducted from a Target store parking lot in Kansas on June 2, 2007.

Smith's parents, Greg and Missey Smith, have pointed to a delay in getting their daughter's cellphone provider to cooperate with police. The couple has said they do not believe that a quicker release of the cellphone information would have saved their daughter's life, but they say it could help someone else. In 2009, Kansas became the first state to enact a law making it easier for police to track cellphone signals.


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