Tuesday, April 26, 2011

The Fourth Amendment and GPS Tracking

As I've written in excruciating detail about on this blog, the Obama Administration has been a complete disappointment on issues related to privacy and civil liberties. To be sure, I never expected his actions as President to fully match his words as a candidate - this is rarely EVER the case, particularly when it comes to issues related to national security - but the two seem to have diverged to such a degree that they now represent diametrically opposed worldviews.

As I have also said, with the passage (and renewal) of the Patriot Act, and the technological advancement in things like RFID tags and GPS tracking capabilities, the 4th Amendment is an endangered species. Now, we find that the Obama Administration is challenging an appellate court ruling over what the proper legal standard should be when law enforcement decides to track a suspects whereabouts? The court ruled there must be probable cause, now, the Obama Administration is arguing the opposite.

Before I get to some choice clips from Truthdig's Juan Cole, let me provide a little case history first: Back in 2009, the Washington Post reported that while serving as a U.S. attorney during the Bush administration, Christopher Christie tracked the whereabouts of citizens through their cell phones without warrants. The ACLU obtained these documents from the Justice Department in an ongoing lawsuit over cell phone tracking. While the documents reveal 79 such cases on or after Sept. 12, 2001, they do not specify how many of the applications were made during Christie's tenure.

Tracking without a warrant disregards
an internal U.S. Justice Department recommendation that prosecutors obtain probable cause warrants before gathering location data from cell phones. Of the cases in which probable cause wasn't established, documents showed 19 allowed the most precise tracking available. Those cases occurred after the November 2007 Justice Department recommendation that prosecutors seek warrants.

And if that wasn't enough, there was the 2009 revelation that Sprint received 8 million law enforcement requests for GPS location data in just one year.

The government has been arguing, consistently now, that federal law requires judges to approve their applications for location information from cell phone companies - even if the police don't have probable cause to obtain this sensitive information. Courts have the right under statute - and the duty under the Constitution - to demand that the government obtain a search warrant before seizing this private location data.

Mobile phone providers store data about where customers make and receive calls, based on the cell towers the customers' phones used. And that's why the government has been attempting to collect past mobile-phone tracking information. That way they can go back in the past for as long as the cell phone companies keep records.

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.

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 last year the police can’t covertly track a suspect’s car using a GPS device for an extended period of time without getting a warrant. This ruling by 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. 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.
Electronic Frontier Foundation and the ACLU had rightly argued that it's one thing to note someone’s 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.

Now, Obama and Holder want to overturn this CRITICAL ruling protecting the fourth amendment...and worse, we are now at the mercy of a Supreme Court filled with a Federalist Society majority.

But while that case, in the meantime anyway, represented a victory, let's remember that the FBI was found to have illegally collected more than 2,000 U.S. telephone call records between 2002 and 2006 by invoking terrorism emergencies that did not exist or simply by persuading phone companies to provide records.

E-mails obtained by The Washington Post have detailed how counter terrorism officials inside FBI headquarters did not follow their own procedures that were put in place to protect civil liberties. The stream of urgent requests for phone records also overwhelmed the FBI communications analysis unit with work that ultimately was not connected to imminent threats.

I addition, we know that the FBI uses 'dragnet'-style warrantless cell phone tracking

Among the many elements of the Obama administration that have disappointed civil libertarians is its interest in spying on Americans. The Bush administration had instituted massive warrantless wiretapping and gathering of telephone records, with the complicity of most telecom corporations. Those who care about the Bill of Rights had hoped that Eric Holder’s Department of Justice would take a stand for the Fourth Amendment, which should be on the endangered species list along with the golden tree frog and the St. Helena dragonet.

It should be remembered that it is perfectly possible for the police to make a mistake or act maliciously and to monitor someone who is innocent. The ACLU charges that these practices are increasingly common. If police and other security personnel are allowed to engage in domestic surveillance of this sort without a court warrant, they can start following large numbers of innocent people and learn details of their private lives. Just this year, Tacoma, Wash., police engaged in unconstitutional surveillance of anti-war activists, using an employee at a military base, which is even more troubling. Blanket permission for law enforcement to conduct warrantless GPS tracking of activists could reveal their private peccadilloes, which in turn could be used to blackmail them.


Part of what defines public and private is a reasonable citizen’s expectations. You wouldn’t expect all your movements for a month to be public, even if they were in an automobile. It is that understandable expectation of privacy that brings the Fourth Amendment into play. Ginsburg continued, “A reasonable person does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination, and each place he stops and how long he stays there; rather, he expects each of those movements to remain disconnected and anonymous.” The full court of nine judges upheld the three-judge panel’s decision to throw out the case, which was against nightclub owner Antoine Jones.

The federal rulings so far on GPS tracking have been all over the map, so to speak, and that the Fourth Amendment will meaningfully survive the almost cosmic electronic surveillance capabilities of our burgeoning national security state is not at all clear. So far many of our eminent federal judges seem perfectly content with having police officers sneak around in our driveways, with allowing them to attach tracking devices to our private property, and with permitting them then to monitor everywhere we go and everyone we visit, without a warrant, for months at a time. Judge Ginsburg and two colleagues are so far all that stand in the way of this dystopian future becoming our present reality. Unfortunately, because Obama and Holder disagree with Ginsburg, his principled arguments will prevail only if they are permitted to do so by the likes of Antonin Scalia and Clarence Thomas. Welcome to Starship Amerika.

I'd also point you to a piece in Computerworld by Darlene Storm. She writes: 

If people can be tagged with a GPS-enabled dart in about a blink, and have no idea their movements on public streets are being tracked, then it seems reasonable that the warrantless surveillance violates the Fourth Amendment. In fact, it sounds a bit like stalking; if permitted to be done without a warrant, then it could easily be done on a large scale and without true suspicion.
Despite three other courts of appeal ruling that law enforcement does not need a warrant to use GPS tracking on a vehicle, the D.C. appellate court did not agree. Inside GNSS reported that the D.C. court of appeal wrote, "Continuous human surveillance for a week would require all the time and expense of several police officers, while comparable photographic surveillance would require a net of video cameras so dense and so widespread as to catch a person's every movement, plus the manpower to piece the photographs together...A reasonable person does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination, and each place he stops and how long he stays there."


I'm certainly not an attorney, but it seems reasonable to expect the Supreme Court to uphold our Constitution and Fourth Amendment rights, including the right not to worry about warrantless surveillance in the form of GPS tracking when there is not even probable cause. Just because the technology exists does not mean it should be used against the people to invade their privacy as if everyone is a criminal. The next thing you know, the authorities will want warrantless wiretaps to search our email. Oh wait..

What's at stake here is whether it's okay for the government to track the locations of cell phone users without having to demonstrate there's good reason to do so. If we've learned anything post Patriot Act, its that law enforcement and the government do abuse unchecked power, even if only in a small minority of the situations. But to me, that's enough of a reason to require a warrant, period.

As the ACLU points out, "This case is not about protecting criminals. It's about protecting innocent people from unjustified violations of their privacy."


Hilary said...

Well explained & descriptive post. GPS Vehicle-Tracking allows us to know where our vehicle is, what it is doing & where it has been.

Vehicle Tracking

Anonymous said...

I notice the article mention 2002 how far do cell phone records actually go back? How would I go by obtaining them, if I need them for a case I will being filing with the courts? Is there a website that gives you information of the time firm depending on the cell provider?