Courts divided on police use of GPS tracking

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

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

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.)

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."

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