Tuesday, August 16, 2011

Federal Court Judge: Police Can't GPS Track Without Warrant

Before I get to the good news that a Maryland U.S. District Judge recently refused to issue a warrant sought by federal authorities to find a suspect through his cellphone's GPS data, let me provide some backdrop on why this is so important.

Due to technological advancements that allow for nearly ubiquitous tracking of American citizens, combined with the passage (and renewal) of the Patriot Act, the fourth amendment has become an endangered species (if not already gone).

As such, the privacy battleground as related to the tracking of cell phones by police has primarily been in the courts - namely whether probable cause, and a warrant, is necessary for law enforcement to track suspects whereabouts. As one might guess, sadly, the Obama Administration  challenged a recent appellate court ruling over what the proper legal standard should be - as in their should be none.

Perhaps there's good reason for the federal government becoming so adamantly opposed to the fourth amendment: 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.

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. 

As the ACLU has pointed out, "it's about protecting criminals. It's about protecting innocent people from unjustified violations of their privacy."

Thankfully, this was the argument, generally speaking, made by this federal judge. The Baltimore Sun reports:

Nearly three dozen ACLU affiliates around the country filed public information requests this month with local police agencies seeking statistics on how often GPS data is sought, how it's used and how it's stored. Congress, meanwhile, has held hearings on cellphone technology and privacy, acknowledging that existing law hasn't kept up with issues raised by the proliferation of smartphones and other devices capable of keeping real-time tabs on their owners.


So far courts have come to conflicting conclusions. A federal appeals court overturned a conviction of a Washington man based on a warrantless GPS search, while appellate courts in California and Oregon upheld convictions in their states. The U.S Supreme Court is scheduled to take up the issue in its next term — addressing whether police can place GPS devices on cars to track suspects without obtaining warrants.


The American Civil Liberties Union questions how the GPS data is being used by police. The group said last week that police in Michigan sought information for every mobile phone near a planned labor protest, and that Sprint, in just over a year, received 8 million requests from police for global positioning data. The Maryland ACLU chapter is not among those filing information requests. 


Federal prosecutors thought it would lead to a quick arrest. But what seemed to authorities a reasonable request was to a judge an intrusion into the suspect's privacy. Gauvey wrote that turning down the government's request "does not frustrate or impede law enforcement's important efforts, but rather places them within the Constitutional and statutory framework which balances citizens' rights of privacy against government's protection of society." The judge wrote, however, that her ruling "does place the precise location information out of the government's casual reach."


This is where existing laws have failed to keep pace with technology. Typically, search warrants target documents that already exist, called "stored information," according to the legal brief. In seeking GPS data, prosecutors are seeking documents that have not yet been created — where a person will be in the future.

Let's be clear...we're talking about something (i.e. GPS tracking) that has been consistently abused and is becoming more and more common. Documents discovered 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, has shown that law enforcement violated individual privacy in states across the country.

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.

As the article alluded to, this will have to be decided by the Supreme Court - which is itself a frightening thought. What I'll be hoping is that the court will understand 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 have 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 has tried to make the case that no such distinction existed.

Let's not forget too...the FBI has been using 'dragnet'-style warrantless cell phone tracking...and this could very likely be the "secret patriot act provision" that has garnered attention, and consternation among some Senators in Congress. You can read more about this in a recent article I wrote about the Patriot Act's renewal, but I think Juan Cole might have said it best, writing:

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."

...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..

With all of that said....it looks like a whole lot of this will decided by the Supreme Court...let's just hope that 1 of the 5 right wing pseudo fascist member will stand up for the Constitutional rights they so often claim to be dedicated to protecting...

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