Protecting Anonymity and GPS Tracking

There was an excellent op-ed in the New York Times this week about a case I've detailed on this blog for a long time now. The case involved the police covertly tracking a suspect’s car using a GPS device for an extended period of time without getting a warrant. 

A ruling in the D.C. Court (by Judge Ginsburg) of Appeals overturned the conviction of this 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. 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.

The problem was that two federal appellate courts had first upheld the use of GPS devices without warrants on the grounds that we have no expectation of privacy when we are in public places and that tracking technology merely makes public surveillance easier and more effective.

Now this case heads to the Supreme Court - and this was the topic of the op-ed by Jeffrey Rosen, a law professor at George Washington University. Rosen writes: 

Judge Ginsburg realized that ubiquitous surveillance for a month is impossible, in practice, without technological enhancements like a GPS device, and that it is therefore qualitatively different than the more limited technologically enhanced public surveillance that the Supreme Court has upheld in the past (like using a beeper to help the police follow a car for a 100-mile trip).

The Supreme Court case is an appeal of Judge Ginsburg’s decision. If the court rejects his logic and sides with those who maintain that we have no expectation of privacy in our public movements, surveillance is likely to expand, radically transforming our experience of both public and virtual spaces. 

For what’s at stake in the Supreme Court case is more than just the future of GPS tracking: there’s also online surveillance. Facebook, for example, announced in June that it was implementing face-recognition technology that scans all the photos in its database and automatically suggests identifying tags that match images of a user’s friends with their names. (After a public outcry, Facebook said that users could opt out of the tagging system.) With the help of this kind of photo tagging, law enforcement officials could post on Facebook a photo of, say, an anonymous antiwar protester and identify him. 

…

To preserve our right to some degree of anonymity in public, we can’t rely on the courts alone. Fortunately, 15 states have enacted laws imposing criminal and civil penalties for the use of electronic tracking devices in various forms and restricting their use without a warrant. And in June, Senator Ron Wyden, Democrat of Oregon, and Representative Jason Chaffetz, Republican of Utah, introduced the Geolocation Privacy and Surveillance Act, which would provide federal protection against public surveillance. 

Their act would require the government to get a warrant before acquiring the geolocational information of an American citizen or legal alien; create criminal penalties for secretly using an electronic device to track someone’s movements; and prohibit commercial service providers from sharing customers’ geolocational information without their consent — a necessary restriction at a time of increasing cellphone tracking by private companies. 

Click here to read more.

The Electronic Frontier Foundation and the ACLU have 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 has 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." 

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 previously 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."

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."

In striking down the drug conviction of Antoine Jones, Ginsburg also wrote "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...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, also illustrated just how important this case is in its 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.

Let's remember, back in 2009 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 headed to the Supreme Court (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!). 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. 

The ACLU’s Catherine Crump recently hit the nail 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."

All eyes now turn to the Supreme Court (always an ominous proposition these days) this November...