Monday, August 9, 2010

Court Rules to Limit GPS Tracking of Suspects

Some great news to report on a topic I've been zeroing in on quite a lot in the past year: government/law enforcement's tracking of citizens through GPS technologies. The issue at hand in the ongoing case just resolved had been over what the proper legal standard should be when law enforcement decides to track a suspects whereabouts?

The ACLU had recently provided documents showing that of the states randomly sampled, New Jersey and Florida used GPS tracking without obtaining probable cause or warrants. Four other states, California, Louisiana, Indiana, Nevada and the District of Columbia reported having obtained GPS data only after showing probable cause.

Those documents were part of the ongoing lawsuit by the ACLU and Electronic Frontier Foundation, in which they argued government tracking without a probable cause or warrant is a violation of the Constitution's Fourth Amendment, which guards against unreasonable search and seizure. Government prosecutors have argued that only a court order showing the tracking data is relevant to a criminal investigation is needed.

The essential argument by privacy advocates, be it the tracking of a cell phone user, or placing a tracking device in a suspect's vehicle, is that, whether you're driving a car or carrying a cell phone you should not be more susceptible to government surveillance. The idea being, no one wants to feel as if a government agent is following you wherever you go - be it a friend's house, a place of worship, or a therapist's office - and certainly innocent Americans shouldn't have to feel that way.

This argument won the day, at least in this case, as a federal appeals court ruled Friday that the police can’t covertly track a suspect’s car using a GPS device for an extended period of time without getting a warrant. The ruling in the D.C. Court of Appeals overturned the conviction of a suspected cocaine dealer, saying that the use of a secret GPS tracking device on the man’s vehicle for two months violated the Fourth Amendment’s protection against unreasonable searches and seizures.

Electronic Frontier Foundation and the ACLU had rightly argued that it's one thing to note someones car location and another to keep hourly data on every single stop you make along a specific route for days or months on end. The government tried to make the case that no such distinction existed.

The appeals court disagreed. "Society recognizes Jones‘ expectation of privacy in his movements over the course of a month as reasonable, and the use of the GPS device to monitor those movements defeated that reasonable expectation," wrote the court.

Thus the court clearly drew the important distinction between short term monitoring that’s not much different from a police tail and ongoing, secret and ubiquitous tracking.

As laid out in the article in Wired Magazine, "Repeated visits to a church, a gym, a bar, or a bookie tell a story not told by any single visit, as does one’s not visiting any of these places over the course of a month. The sequence of a person’s movements can reveal still more; a single trip to a gynecologist’s office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story.

EFF Civil Liberties Director Jennifer Granick welcomed the decision, and hoped the reasoning would spread to similar issues with the mobile phones most of us carry in our pockets.

“This same logic applies in cases of cell phone tracking,” Granick said in a press release. “We hope that this decision will be followed by courts that are currently grappling with the question of
whether the government must obtain a warrant before using your cell phone as a tracking device.”

However, Friday’s ruling is binding only in the D.C. Circuit. Other circuit courts have found such tracking to be legal, including the 9th (covering many Western states) and 7th (Illinois, Wisconsin and Indiana). The split makes it the issue ripe for the Supreme Court to decide the issue, but it’s not clear if the government will appeal this ruling, given that a loss at the Supreme Court would affect the entire country.

ACLU-NCA Legal Director Arthur Spitzer also makes an important point, stating: "GPS tracking enables the police to know when you visit your doctor, your lawyer, your church, or your lover. And if many people are tracked, GPS data will show when and where they cross paths. Judicial supervision of this powerful technology is essential if we are to preserve individual liberty. Today's decision helps brings the Fourth Amendment into the 21st Century."

The Washington Post has more:

In striking down the drug conviction of Antoine Jones, former co-owner of a District nightclub called Levels, the D.C. court said the FBI and District police overstepped their authority by tracking his movements round-the-clock for four weeks, placing a GPS monitoring device on his Jeep after an initial warrant had expired.

U.S. Circuit Judge Douglas H. Ginsburg, writing for a unanimous and ideologically diverse panel that included judges David S. Tatel and Thomas B. Griffith, said such surveillance technology represents a leap forward in potential government intrusion that violates constitutional protections against unreasonable searches.

"A single trip to a gynecologist's office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story," Ginsburg wrote.

He added, "A person who knows all of another's travels can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups -- and not just one such fact about a person, but all such facts."


Kevin Bankston, senior staff attorney for the Electronic Frontier Foundation, said the case has important implications for cellphone GPS tracking. The federal government has mandated that U.S. cellphone carriers make nearly all their phones trackable for help in 911 emergencies. However, companies say that the federal law that allows them to turn over data to law enforcement without subpoenas is prone to abuse.

Although federal magistrate judges typically require warrants for GPS-enabled cellphone tracking, the issue is before a federal circuit court for the first time in Philadelphia, Bankston said.

Click here for more.

Let's remember, last December we learned that Sprint received 8 million law enforcement requests for GPS location data in just one year. While that issue is slightly different than the one decided Friday (it was based on putting a GPS tracking device in the suspects car, rather than tracking the cell phone), the general concerns are applicable: Tracking citizens without a warrant (or even probably cause!) seem unconstitutional on its face. We know these GPS chips can locate a person to within about 30 feet. They're also able to gather less exact location data by tracing mobile phone signals as they ping off cell towers.

In a recent Inquirer Op-ed, the ACLU’s Catherine Crump hit it on the head:

"What’s at stake in the case is not whether it’s OK for the government to track the locations of cell phones; we agree that cell-phone tracking is lawful and appropriate in certain situations. The question is whether the government should first have to show that it has good reason to think such tracking will turn up evidence of a crime. We believe it should. This case is not about protecting criminals. It’s about protecting innocent people from unjustified violations of their privacy."

In other words, next to look for is whether this decision effects similar legal arguments being made regarding cell phone tracking...stay tuned...

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