Courts divided on police use of GPS tracking

If a police officer puts a GPS tracking device on your car, should he or she have to get a warrant first?

It's a simple question, but one, so far, without a clear legal answer. In an example of how unsettled the issue is, in just the past week, appeals courts in two different states delivered completely opposite rulings.

At the heart of the matter is whether tracking someone with a global-positioning system device constitutes a search, which is covered by the Fourth Amendment of the US Constitution. A Wisconsin court of appeals ruled last week that no, it doesn't. On Tuesday, the New York Court of Appeals ruled that yes, it does.

"It brings us back to the fundamental question as to whether GPS tracking is synonymous with visual surveillance," says Hillary Farber, a professor of law and criminal justice at Northeastern University's College of Criminal Justice in Boston. "This is an evolving area of law.... It's a hot issue."

The difference of legal opinion highlights the shifting expectation of privacy in a world where cameras are everywhere and travelers know they may be viewed naked at the security screening in the airport, as well as the difficulty courts have in weighing in on rapid advances in technology.

The decisions come at a time when an increasing number of police departments are using GPS in their investigations.

"It does take time to reconcile new technology with legal principle," says Michael Scott, a clinical associate professor at the University of Wisconsin law school in Madison who specializes in research on the police. "We saw this with wiretapping in the 1960s. At one time, it was unthinkable: How could someone listen in on a private phone conversation? We had to rethink our expectation of privacy."

Shifting privacy standards?

The US standard on searches and seizures considers whether there is "a reasonable expectation of privacy." Typically, the Supreme Court has taken a "rather ungenerous view" of that expectation, says John Burkoff, a professor at the University of Pittsburgh's School of Law. "But those rulings came from a period of time when we didn't have the kind of technology that we have today."

More recently, the court has distinguished between devices in common use and those that aren't. If a device is readily available, then there isn't a reasonable expectation of privacy, Professor Burkoff says.

Unfortunately, he adds, GPS devices are commonly used today.

"All tracking technology is a double-edged sword," says Professor Scott, pointing out that people have already voluntarily given up some privacy rights. "If you buy Onstar [a car security service], you allow the company to monitor your car. You give it up when you buy electronic passes to go through the tolls.... You've got people putting GPS [devices] in their children's backpacks. Those trends, I think, will influence the courts."

That may be so, but citizens don't generally equate using technology to keep from getting lost with allowing the government track their movements. "If you asked almost anyone on the street if it's reasonable that the police can put a GPS device on anybody's car without any warrant, without probable cause, I think you would get an overwhelming number of people who would say no," says Larry Dupuis, legal director of the Wisconsin American Civil Liberties Union.

Old rules, new technology

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