Bolivar firm represents plaintiff in suit to block Kelsey's Law

Attorneys with Bolivar-based Douglas, Haun & Heidemann PC are representing a woman who has filed a lawsuit against the state of Missouri to halt enforcement of House Bill No. 1108, also known as Kelsey’s Law, which takes effect today in Missouri.

The law requires telecommunications providers to disclose subscribers’ physical locations in cases deemed emergencies by law enforcement and to provide “ping locations” or cell tower triangulations to determine users’ physical locations. The lawsuit was filed by Bolivar resident Mary Hopwood, who is represented by DHH attorneys Craig Heidemann and Nathan Duncan.

Heidemann said the class action is injunctive and isn't seeking money damages, so unlike other class actions, it may be a no-opt-out class.
“That's a unique provision of class action law where, if you're not asking for money, basically, everybody that's affected is included automatically,” Heidemann said, noting that the class could include all cell phone users.

According to USA Today, the law is named for Kelsey Smith, a Kansas teen whose body was found four days after she was abducted in June 2007. It is intended to help local police agencies receive information quickly when people are in danger. Similar laws already have been adopted in Kansas, Nebraska, Minnesota and New Hampshire.

The suit alleges that Missouri’s version of Kelsey’s Law violates the U.S. Constitution supremacy clause, which prevents states from passing laws that conflict with federal laws, according to a DHH news release. Specifically, the suit claims the law conflicts with the Electronic Communications Privacy Act – passed by Congress in 1986 – which outlines circumstances under which private location information may be disclosed.

The suit alleges that Missouri’s law provides a conflicting standard for disclosure and eliminates customers’ ability to sue for improper disclosure.
Under Missouri’s HB 1108, a simple request and declaration of an emergency by law enforcement is the only requirement to obtain protected ECPA information. The lawsuit says under federal law, wireless providers can refuse illegitimate requests, but under Missouri’s new law, the providers must respond regardless of whether the provider believes a real emergency exists. 

“What concerns my client most is the erosion of our rights,” Heidemann said. “Congress gave U.S. citizens the right to sue if their telephone company gave away their records that they had saved, and Missouri is taking that right away from our citizens. They've said that the telephone company doesn't exercise any discretion any more, and if somebody sends in a fax that says it's an emergency … they can't question it. They just have to give up the records.”

By comparison, Heidemann said other states have more restrictive laws. Last week, for example, the California state legislature passed the Location Privacy Act of 2012, making it mandatory for law enforcement agencies to obtain warrants prior to gathering location-tracking data, he said.

The Hopwood case is now pending in the U.S. District Court, Western District of Missouri.