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Courts divided on police use of GPS tracking

Two recent, divergent court rulings on warrantless tracking suggest new technologies are straining old privacy standards.

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The federal courts have been divided on this issue, although in 2007, the Seventh Circuit Court of Appeals issued a ruling similar to Wisconsin's. On the state front, Washington and Oregon courts have mandated that police obtain warrants first, citing their state constitutions – as did New York this week. (This effectively settles the issue for residents of these states.)

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A similar case is pending before the Massachusetts state supreme court.

In both of this month's rulings, the courts cited a 1983 Supreme Court case in which federal agents placed a tracking beeper (a radio transmitter) in a barrel of chloroform that was transported by a suspect. The high court ruled that the defendant had no expectation of privacy while driving on public roads.

In the Wisconsin case, police did obtain a warrant before putting a tracking device on a stalking suspect's car. But the officers could have proceeded without one, because GPS tracking does not constitute a search, Judge Paul Lundsten wrote.

However, the Wisconsin Court of Appeals also said it was "more than a little troubled" by its own conclusion and asked the state legislature to regulate GPS use to protect individuals and prevent abuse by law enforcement.

The New York Court of Appeals, on the other hand, found that a beeper and a GPS device were not created equal, technologically speaking. "The whole of a person's progress through the world, into both public and private spatial spheres, can be charted and recorded over lengthy periods possibly limited only by the need to change the transmitting unit's batteries," wrote Chief Judge Jonathan Lippman for the majority. "Disclosed in the data ... will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club ... the mosque, synagogue or church, the gay bar and on and on.

"What the technology yields and records with breathtaking quality and quantity," the judge continued, "is a highly detailed profile, not simply of where we go, but by easy inference, of our associations – political, religious, amicable and amorous, to name only a few – and of the pattern of our professional and avocational pursuits."

In that case, police did not obtain a warrant before affixing a GPS device to a suspect's vehicle and tracking his movements for 65 days. He was subsequently tried for two burglaries and convicted of one.

Privacy vs. security

Both Burkoff and Scott argue that privacy concerns need to be weighed against legitimate security issues. "We sometimes get fixated on constitutional questions which are tremendously important, but forget to ask what kind of [real-world effects are out there]," says Scott, who used to be with the St. Louis Police Department. Stalking cases are one example of the usefulness of GPS tracking. "Police often lack the resources to tail a known stalker for a considerable period of time. They have to rely on the victim calling the police – and sometimes that's too late."

In that context, GPS tracking can help deter people from going to places they're not supposed to be, he says.

While Congress or state legislatures may need to adapt privacy protections to certain new forms of technology, "[the GPS issue] is something that I actually think courts can deal with," says ACLU's Mr. Dupuis. "The question is: Do you need a warrant to do this kind of thing? And that's an old question."

The Supreme Court is likely to weigh in at some point on security concerns over the use of new technologies, experts say. "One of these high-tech cases will get there soon, and it will be interesting to see who's on the court then. As we know … they are not the most technically adept group of American citizens," says Burkoff.

"Hopefully, President Obama will nominate somebody who knows how to use a BlackBerry."