Supreme Court Will Weigh In On Warrantless GPS Tracking

from the finally dept

Wed, Jun 29th 2011 10:05pm — Mike Masnick

We've been covering for a while now the rather mixed results from courts concerning the legality of police sticking a GPS transmitter on a car without a warrant in order to track a suspect. While some state courts have said such tracking is illegal, most federal courts have gone the other direction, saying that it's fine. Last summer, we noted that the DC Circuit court made a somewhat surprising ruling, saying that when the GPS tracking was "long-term," it suddenly switched from being legal to illegal. This odd standard (how long the tracking goes on for) seemed somewhat arbitrary. But, more importantly, the fact that different federal circuits disagreed with the legality of such things set up what we felt was an inevitable Supreme Court case.

And now it's here. Earlier this week, the Supreme Court announced that it would hear the appeal on that DC circuit case, United States v. Jones. This means, of course, that the issue will be settled once and for all, assuming the Court gives a clear ruling (something it doesn't always do). I do worry that it will merely cement what the other appeals courts have said, and basically diminish the Fourth Amendment even further. The feds have made it clear that they'd like to ignore the Fourth Amendment in such cases, and it would be nice if the Court tells them they cannot do that.

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Filed Under: 4th amendment, gps, privacy, supreme court, warrant

26 Comments

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Coises (profile), 29 Jun 2011 @ 10:37pm

SCOTUS’ copy of the constitution has a fourth amendment?
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Adrian Lopez, 30 Jun 2011 @ 12:06am

Even if no warrant were required to attach such a device to a suspect's car, retrieving the device or any of the data collected by said device should definitely require a search warrant.
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Jake, 30 Jun 2011 @ 12:15am

The "long term" part isn't quite as illogical as it sounds. A warrant isn't necessary for officers in a patrol car to covertly follow a vehicle they suspect might be involved in some kind of criminal activity, so presumably an officer on foot slapping a tracer on a car so another unit can be routed to tail it would be covered under the same precedent. A tracker that's logging data that will be recorded and used as criminal evidence would be another matter.
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Nicedoggy, 30 Jun 2011 @ 2:47am

So can I attach a gps device that shows where the cops are going and keep them on their toes?
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- Gill Bates, 30 Jun 2011 @ 5:21am
  
  Re: GPS on cops
  Sure, but don't you already know where the doughnut shops are?
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  - Nicedoggy, 30 Jun 2011 @ 3:46pm
    
    Re: Re: GPS on cops
    Not all of them :)
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Nicedoggy, 30 Jun 2011 @ 2:49am

Could we attach GPS to government cars to make sure they are not being use to visit the local brothel?
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- jd2112 (profile), 30 Jun 2011 @ 6:31am
  
  Re:
  Or strip clubs?
  
  On the other hand, one thing that the movies teach us is that no crime is ever solved until after the detective visits a strip club, So perhaps cops visiting strip clubs should be encouraged.
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  - Nicedoggy, 30 Jun 2011 @ 3:48pm
    
    Re: Re:
    Do other public servants are included on that reasoning as well?
    
    If yes then perhaps we should encourage and monitor if they are going to those places frequently.
    
    Congressman, firefighters, TSA agents and all other public servants.
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FM Hilton, 30 Jun 2011 @ 4:18am

In what way does GPS tracking not differ from wiretapping?

Where does the line get crossed that a suspect can be tracked using a device with a warrant to one that does not require it?

That's the dangerous part of this entire issue: that you don't need a compelling and legal reason for using a GPS tracking device except that the authorities "want to", and that is why this is going to the SC.

Oh, I can see all kinds of possibilities for abuse and misuse of this if the SC does not rule against it.

The CIA, FBI and the other government agencies would jump at the chance to track people without probable cause and warrants.
I won't even mention the NSA, or the Patriot Act, which would undoubtedly be 'updated' to reflect this, should it become law.

But I'm terrified of what the Court will do in this case-their past history in the last few years has not given me confidence (with good cause) that they even recognize the 4th Amendment as a given right.

We're sliding down that slippery slope at breakneck speed.
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Thomas (profile), 30 Jun 2011 @ 5:44am

Even if..
the SCOTUS rules that the warrantless tracking is illegal, that won't stop the federal spooks from doing it anyway. The federal spooks fully believe they are above the law and that the end justifies the means.
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- Anonymous Coward, 30 Jun 2011 @ 6:30am
  
  Re: Even if..
  From a law enforcement point of view, the ends always justify the means.
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  - Someantimalwareguy, 30 Jun 2011 @ 8:16am
    
    Re: Re: Even if..
    From a law enforcement point of view, the ends always justify the means.
    Which is why they need to be reminded of their limitations on a regular basis - otherwise they start feeling entitled to do anything they wish...
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abc gum, 30 Jun 2011 @ 5:47am

Based upon recent SCOTUS rulings, I'm guessing their GPS ruling will state that GPS devices are people and have first amendment rights. Disclosing your whereabouts is simply the GPS devices right to free speech. In addition, if the vehicle owner removes said device, it is a violation of the devices first amendment rights.
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Aardvark, 30 Jun 2011 @ 5:49am

News Flash!
@abc gum: I would not be too sure about that. This latest batch of rulings leads me to believe the SCOTUS will allow it.
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- abc gum, 30 Jun 2011 @ 6:46am
  
  Re: News Flash!
  "@abc gum: I would not be too sure about that. This latest batch of rulings leads me to believe the SCOTUS will allow it."
  
  Do you have examples of the latest batch for which you refer?
  And allow what - weakening of the 4th amendment? How does this disagree with the post to which you responded?
  
  Eventually, automobile manufacturers will be required to install GPS devices in all vehicles. This has already been debated as a means for road use taxation. The premise is rather stupid, but then so are its authors. I suppose that disabling the device would then be punishable under the tax code.
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DannyB (profile), 30 Jun 2011 @ 6:03am

Does the wireless GPS device need to be returned?
Suppose they cannot find the GPS device they attached to my car?

Whose fault is it?

Who has to eat the cost of that device?

What GPS device? I didn't know you attached a device to my car. I didn't take it and give it to my electronic geek friend in another city.
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Anonymous Coward, 30 Jun 2011 @ 6:36am

I am guessing that at least part of the argument will be that the cars are on public roads, and as such, could be monitored by other means legally (such as cameras or police surveillance) without requiring a warrant, so why would this sort of device be much different?

I am suspecting a ruling that permits this sort of thing, but places some restrictions (like not being able to use data from when the car is not on public roads, example as the basis for a warrant). It wouldn't be granting officers any rights that they do not already have, considering that the data the could get could also be obtained by hiring enough officers to follow all the cars that are of interest to them.
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- abc gum, 30 Jun 2011 @ 6:49am
  
  Re:
  I thought stalking is a felony
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  - Anonymous Coward, 30 Jun 2011 @ 7:58am
    
    Re: Re:
    Police can (and do) perform surveillance work now without a warrant. They do not need to have a court grant them the right to see what they can see with their own eyes. There is also no specific law against CCTV cameras, and in fact many cities have them on major roads and such. Some toll roads have cameras that track every plate the enters and exits the road in order to charge for usage.
    
    Imagine the police put, at every corner, a device that reads every license plate going by and databases it. Would that be illegal? Would it be illegal if the device was replaced with 100 officers all taking notes?
    
    The streets are public, and the expectation of privacy is very, very low. You are driving around in a car with plenty of windows and a government mandated ID tag on it in plain view. There isn't much privacy.
    
    The GPS devices replace the officer's eyes. They don't record conversations or violate privacy.
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    - AJ, 30 Jun 2011 @ 8:59am
      
      Re: Re: Re:
      "The streets are public, and the expectation of privacy is very, very low. You are driving around in a car with plenty of windows and a government mandated ID tag on it in plain view. There isn't much privacy."
      
      How about on my 1000 acre ranch? Should i be tracked on my private property without a warrant as I drive around? How about in a private parking garage?
      
      "Would it be illegal if the device was replaced with 100 officers all taking notes?"
      
      If they wanted to put a 100 officers all taking notes on my property, they damn well better have a warrant!
      
      "The streets are public"
      
      Your talking about the city, there are thousands of miles of private roads that are traveled daily in the rural areas. Would the GPS turn off when you hit a private road?
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      - Anonymous Coward, 30 Jun 2011 @ 9:20am
        
        Re: Re: Re: Re:
        My feeling is that SCOTUS will put a restriction, stating that information gleaned from GPS that involves "non-public areas" would not be allowed to be used as evidence, or used as the basis of a warrant.
        
        As for your property, the police could put 100 people on your property line and have them record all of your visible activities. What they can see with the naked eye is very much within the scope of the law.
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Brian Schroth (profile), 30 Jun 2011 @ 7:34am

While the 4th Amendment concerns on this are legitimate, this particular thing (GPS devices being attached to cars) should not be allowed for a much more straightforward reason.

My car is my property. You do not have the right to affix things to my property. Because it's my property, not yours. Only I have the right to make modifications to my own property, and that includes attaching devices. If someone else modifies my property, that's vandalism.
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- Ron Rezendes (profile), 30 Jun 2011 @ 8:06am
  
  Coming soon, Sony Smart Cars w/GPS embedded and no stereo!
  Sony says you do NOT own that car, or any other device you THOUGHT you purchased.
  
  You only licensed it, and as a licensee you are subject to a revision of the capabilities of your device at their whim, invasion of privacy into your life which you gave up when you "licensed" said product, and Sony will sue you if you try to do anything to THEIR device, which you only licensed.
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- Nicedoggy, 30 Jun 2011 @ 3:56pm
  
  Re:
  Are you sure you own it?
  
  Can you go to any mechanic to do any job on the vehicle without having to break the code to read the car self-diagnostic computer?
  
  Right there if you try to break that is probably a DMCA violation.
  
  IP law is getting so expansive that soon you probably won't own anything anymore it will all be licensed to you by someone with less than good intentions.
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Jesse (profile), 30 Jun 2011 @ 5:58pm

Anything...
Anything that a police officer can do without a warrant, by corollary, a citizen should be allowed to do. (Such as the right to videotape police in public. Or in this case, to GPS another individual's vehicle.) The warrant is, supposedly, what gives police the force of law, no?
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