Wednesday, November 2, 2011

Supreme Court to Hear GPS Tracking Case on Tuesday

I've been covering this case here for a long time now....and its finally about to reach its conclusion. Before I get to the USA Today article detailing the case and its Tuesday Supreme Court hearing, let me summarize some of what I've written on it in the past. 

The case in question involved police covertly tracking a suspected cocaine dealer's car using a GPS device for an extended period of time without getting a warrant. Thanks to this tracking, the suspect was initially convicted. But, a ruling by the D.C. Court (by Judge Ginsburg) of Appeals overturned that decision, arguing 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 is scheduled to be heard by the Supreme Court.

Jeffrey Rosen, a law professor at George Washington University, made some important points on this case a few months back I think are worth repeating. He noted, "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)...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 

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."

So with that backdrop, here's the latest on the case and the upcoming hearing:

In a potentially groundbreaking case on high-tech tracking by police, the Supreme Court will decide whether constant surveillance is such an intrusion on people's lives that police need a warrant before attaching a GPS device to a person's car.

The case, to be heard Tuesday, tests law enforcement's use of the latest technology to fight crime as it raises the specter of a "Big Brother" government knowing one's every move. GPS tracking lets police engage in round-the-clock surveillance — without a person's knowledge — over a prolonged period that could seldom be matched by cops on a beat or other traditional observation. 

Global Positioning System receivers, originally developed for military use, rely on a constellation of satellites in fixed orbits. Receivers on the ground use satellite transmissions to calculate the latitude and longitude of a location. Data can be transmitted remotely to police computers and stored.


Solicitor General Verrilli is urging the high court to rely on its 1983 ruling in United States v. Knotts, which said the use of a beeper to track a suspect driving to a drug lab was not a search under the Fourth Amendment. Verrilli says the lower court hearing Jones' appeal wrongly abandoned a longstanding line between private information and information that is "exposed to the public," for example, on roadways.

The lower court said, however, that a month of detailed tracking could not be considered "public" in the usual sense because it was unlikely anyone would actually have observed all of Jones' travels. Verrilli counters that information does not become "less public" simply because it is collected with in a more sophisticated technology. 

The high court will also be looking at whether just the installation of the device violated Jones' rights. Justice Department lawyers say installing the GPS device was permitted because it didn't interfere with Jones' driving or take up any space inside the vehicle.

Stephen Leckar, representing Jones, tells the justices in his brief that unrestrained GPS monitoring has become "a grave threat to expressive and political association, as well as to the personal privacy and security of every individual in the country."

Its important to consider this case in the larger context of an increasingly unjust economic system (AND Judicial system) that's leading people, literally, to the streets in protest. We must, at all costs, now more than ever, stand firm against the ever encroaching and watchful eye of both government and corporate interests.

But don't just take my word for it, check out a recent post I did on the fact that $150 million of taxpayer money has gone to funding a government facility in lower Manhattan where Wall Street firm representatives have joined the New York Police Department to spy on  law-abiding citizens simply taking advantage of their First Amendment rights.

As Pam Martens wrote, "According to newly unearthed documents, the planning for this high tech facility on lower Broadway dates back six years. In correspondence from 2005 that rests quietly in the Securities and Exchange Commission’s archives, NYPD Commissioner Raymond Kelly promised Edward Forst, a  Goldman Sachs’ Executive Vice President at the time, that the NYPD “is committed to the development and implementation of a comprehensive security plan for Lower Manhattan . . . One component of the plan will be a centralized coordination center that will provide space for full-time, on site representation from Goldman Sachs and other stakeholders.”

And then there's Naomi Wolfe, who was recently arrested for peacefully protesting herself, making another critical point, writing, "America is waking up to what was built while it slept: Private companies have hired away its police (JPMorgan Chase gave $4.6m to the New York City Police Foundation); the federal Department of Homeland Security has given small municipal police forces military-grade weapons systems; citizens' rights to freedom of speech and assembly have been stealthily undermined by opaque permit requirements."

Clearly, this dispute, particularly because it deals with technology that is becoming increasingly ubiquitous (i.e. smartphones, vehicles), will have an enormous impact on future fights over police tactics and our 4th Amendment rights. 

Perhaps most persuasive was Judge Ginsburg herself in her decision to overrule the appellate court decision, stating,  "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."

Let's also 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 provided one more argument for why the government should not win this case, stating, "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."

And now we await the decision from a Supreme Court that consistently rules in favor of corporations and a more powerful national security state...and nearly always against the interests of the public good. As usual, all eyes will be on Anthony Kennedy.

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