Appeals Court Rules Against Long Term Warrantless GPS Tracking Of Suspect; Sets Up Inevitable Supreme Court Case

from the ah-that-4th-amendment dept

For years, we've been discussing the "Pandora's box" of privacy and 4th Amendment questions about law enforcement using secretly installed GPS devices to track suspects. For more than five years, we've been wondering when the Supreme Court would finally weigh in on the issue. There have been plenty of cases on this topic so far, with various federal courts ruling that it's perfectly legal and various state courts generally ruling in the opposite manner. Well, today the appeals court for the DC Circuit ruled that a long-term use of GPS to track someone without a warrant violates the 4th Amendment. While other courts found that GPS was really no different from just following someone in public, this court found otherwise:

"It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person's hitherto private routine."

Specifically, the court found that the whole of the activity may add up to more than just the sum of the parts. While this makes sense, there are a lot of questions as to whether it goes way beyond what the law allows. Eugene Volokh Orin Kerr notes a key problem:

Much of the problem is knowing when the line is crossed when a bunch of non-searches become a search. The Supreme Court has stressed the need for clear rules that tell the police what they can and cannot do. But how do the police know when a mosaic has been created such that the sum of law enforcement techniques, when aggregated, amount to a search? Are they supposed to carry around a D.H. Ginsburg Aggregatormeter that tells them when it's time to get a warrant? Take the case of Maynard. One-month of surveillance is too long, the court says. But how about 2 weeks? 1 week? 1 day? 1 hour? I have no idea.

Even stranger, the mosaic theory has the bizarre consequence of creating retroactive unconstitutionality. The Maynard opinion indicates that it would have been okay to monitor Jones for a short time. Let's say that would allow monitoring for a few trips over the course of one day. At the end of that one day, the first day of monitoring would be constitutional. If the prosecution wanted to admit that evidence, it would be fine. But by continuing to monitor the GPS device for more time, that first day of monitoring eventually and retroactively becomes unconstitutional. It becomes part of the mosaic, and the key point of Maynard is that the entire mosaic is considered one entity.

I have to admit, I see both sides of this argument. The full on, warrantless GPS tracking certainly does seem to go beyond what's reasonable. But the vague standard could create some problems as well (even if I generally like the idea of looking at the whole of the activity, rather than trying to focus in on the individual pieces). It seems like the good way out of this would be for Congress to protect privacy by requiring a warrant for such tracking, but there's little chance of that happening. Instead, what's likely to happen is that the Supreme Court will be forced to weigh in on this eventually, and my (very premature) guess is that they'll side with law enforcement.

Filed Under: 4th amendment, gps, privacy

It Appears That The Encyclopaedia Britannica Entry On Shaking Down GPS Providers With A Bogus Patent Needs Updating

from the shot-down-again dept

The Encyclopaedia Britannica has not exactly been having a good decade. In the minds of much of the public (though, certainly not all), the usefulness of Britannica has long been surpassed by Wikipedia. A couple years ago, we gave Britannica's president a chance to explain his views on where Britannica is going, but it still seems like an uphill battle. Among the more ridiculous things that Britannica has tried to do is to also turn itself into a bit of a patent troll. Back in 2007, it sued a bunch of GPS companies for patent infringement. Scratching your head over why Britannica holds patents on GPS technology? The answer is even more convoluted than you can imagine.

Through a series of events, Britannica ended up in possession of a rather infamous patent (5,241,671), originally granted to Compton's back in 1993. That patent was initially used to claim control over... well... pretty much all multimedia, including CD-ROMs and certain aspects of computers and software. The story got so much attention that the USPTO's boss stepped up and directly ordered a re-exam of the patent. All of the claims were struck down, but Compton's (and soon Britannica who took over ownership of the patent, being an investor in Comptons) kept trying. After eight long years of fighting back and forth, the patent with narrower claims was granted, which Britannica decided covered GPS technology.

To make matters even more confusing, during all of this Britannica had also filed for two continuations patents (the sneaky process we've discussed a few times recently whereby patents holders try to submarine in later offerings with an earlier priority date). Those patents were at the center of the lawsuit we mentioned in 2007.

At the end of 2008, we noted that that original '671 patent had finally been declared invalid. Last summer, we noted that those two other continuation patents had been dumped as well. Britannica, with nothing to lose, appealed.

Last week it lost that appeal. The actual ruling focuses on a technicality in terms of how Britannica filed for those continuation patents. Basically, it screwed up the filing process and that killed any chance of the patents to actually be considered continuations. Because of that, the patents get tossed out as being considered neither new nor non-obvious as they're anticipated by other patents. Either way, hopefully this really is the end of Encyclopaedia Britannica's short life in the world of patent trolling GPS companies...

Filed Under: cd-roms, gps, multimedia, patents
Companies: britannica

Victim Of Domestic Abuse Sues GPS Company For Helping Her Assailant

from the it's-the-tool dept

Michael Scott points us to the news of a new lawsuit that hopefully doesn't get very far, but which does highlight the frequency with which third parties are sued these days, not because they have any actual liability, but because they have money. In this case, a woman is suing a GPS vehicle tracking service, Foxtrax Vehicle Tracking, because her domestic partner used the service to figure out where she was and to attack her. It sounds as though the guy put the tracking device on the woman's car in order to stalk her. It's difficult to think that anyone could find the company liable here for the actions of the guy. I'm sure it's upsetting that the guy was able to track her, and she has every right to press all sorts of charges against the guy. But the GPS tracking company was merely the technology provider.

However, this is yet another example of what I've called "Steve Dallas lawsuits," after a Bloom County cartoon strip, I remembered from decades ago, where the character Steve Dallas (a lawyer, who gets beaten up by Sean Penn when he tried to take his photograph -- some things never change), explains why after going through all the options on who to sue, he chooses to sue the camera manufacturer, the made-up Nikolta, because it's "a major corporation with gobs of liquid cash...."

Filed Under: domestic abuse, gps, liability, third party liability
Companies: foxtrax vehicle tracking

Netherlands The Latest To Propose Mileage Tax That Requires GPS For Tracking Driving

from the what's-wrong-with-the-gas-tax? dept

Matthew Cruse alerts us to the news that the Netherlands is the latest in a long line of governments that are considering a "mileage tax" that would require drivers to have GPS devices that track how far they drive, and then tax you for every mile driven. Various US states, including Oregon, California and Massachussetts have toyed with such ideas, and while some in Congress have pushed for it on a national scale, the Obama administration has come out against the idea.

There are lots of problems with the idea, including the privacy implications of the government collecting data on your driving habits. Plus, the massive expense of equipping cars with such devices should not be underestimated. But, the biggest question of all is why such a thing is needed at all. We already have taxes on fuel, which approximates the same thing (the more you drive, the more you pay) which doesn't have the same expense or privacy implications and has the added benefit that it helps encourage more fuel efficient driving. The idea to do a GPS-based mileage tax seems like one of those things that politicians come up with because they want more money, and they get infatuated with some new technology, without thinking through the implications (at all).

Filed Under: driving, gps, mileage tax, netherlands

Massachusetts Says Cops Need Warrant To Stick GPS Device On Your Car

from the that-makes-two-states dept

For the past few years, it's become increasingly common for police to put GPS devices on suspects' cars to track where they are. But, that's kicked up a bunch of legal questions concerning whether or not it's legal to do that without a warrant. So far, the courts have not really agreed. Earlier this year, we saw one court (a federal appeals court, 4th circuit) say that police didn't need a warrant, but then, just days later, a court in NY ruled the other way, saying that it was a violation of the 4th Amendment. Now, the state Supreme Court in Massachusetts has weighed in as well, again saying that a warrant is needed to put a GPS device on your car. So that makes NY and Massachusetts as states where police can't randomly stick GPS devices on your car. The other 48 states? Good luck...

Filed Under: gps, massachusetts, police, warrant

New Zealand Says You Can't Use Your Mobile Phone For Navigation While Driving

from the because-that-would-upset-the-GPS-device-makers dept

Brendan was the first of a few to submit the story that New Zealand is telling people that they can't use their mobile phones for navigation purposes, even if that phone is mounted on the dashboard like a regular GPS navigation device. Regular GPS devices are fine... but a mobile phone acting just like one of those devices? That's illegal. Why? No one seems to be saying, but you can bet the standalone GPS makers are happy about this... Update: Well, that was fast. Given public backlash, the gov't has already decided to back down and rewrite the laws to allow mobile phone navigation systems.

Filed Under: driving, gps, navigation, new zealand

Following Your GPS Over A Cliff Is No Excuse For Bad Driving

from the in-case-you-were-wondering... dept

Verve alerts us to the news that one of the many drivers who have been chronicled following their GPS over their own common sense has discovered that "following my GPS" is not an acceptable defense in court. In this case, the guy followed the GPS's commands down a "narrow cliffside path" until the car got stuck against a fence, overlooking a sharp drop. He's now been convicted of "driving without due care and attention." The prosecutor wasn't exactly kind, but apparently the following was convincing to the judges:

The path was not designed for motor vehicles yet Mr Jones slavishly continued to follow the satnav system to the point where his eyes and his brain must have been telling him otherwise to such a degree he was not exercising proper control of the vehicle

For his part, the guy admitted he was an "idiot," but said he was just following instructions:

I might have been an idiot for taking the wrong road or carrying on but I have not driven without due care or attention.

Filed Under: common sense, driving, gps

Encyclopaedia Britannica Loses Patent Battle... Yet Again

from the keep-it-up dept

Last year, we wrote about the incredible story of how Encyclopaedia Britannica had ended up with an infamous patent (5,241,671) and was using it to claim ownership over basic GPS functionality. The patent had originally been granted to Compton's back in 1993, and was insanely broad. Compton's quickly told the world that pretty much any and all multimedia systems out there (such as CD-ROMs) violated the patent. The outcry was so great that the commissioner of the patent office initiated the re-exam of the patent himself, and eventually tossed out the whole thing. But, as things go, there was some back-and-forth, and eventually a few greatly narrowed claims were allowed. EB ended up with the patents as an investor in Compton's, and then not only got some other patents based on the 671 patent, but claimed that they could be asserted against GPS systems. And, just like that, rather than doing something useful, like figuring out how to compete with Wikipedia, Encyclopaedia Britannica started filing bogus patent infringement lawsuits.

We wrote about it last November to note that a court had thrown out the entire 671 patent as invalid. While EB is appealing that ruling, it also pushed ahead with the lawsuits based on the other patents it had received that were built on the 671 patent. However, Slashdot alerts us that the same court that tossed out the 671 patent has now dumped these two patents as well. EB, of course is expected to appeal this as well.

This seems like a subject that could use a decent Wikipedia entry, doesn't it?

Filed Under: gps, multimedia, patents
Companies: encyclopeadia britannica

Couple Taken 400 Miles Off Course By Trusting Their GPS

from the at-some-point,-don't-you-begin-to-question... dept

It really is amazing to see some of the stories about people shutting off their brains (and often their own eyes) in order to believe everything that their GPS device tells them. The latest example involves some Swedish tourists in Italy, who wanted to go to Capri, but mistyped it into the device as Carpi, an industrial town in Northern Italy, 400 miles away from the beautiful isle of Capri. Apparently, it didn't occur to them as they drove (and drove and drove) that perhaps things weren't right. According to tourist officials, after being informed, the couple got back in the car, and turned around to head in the right direction.

Filed Under: capri, carpi, gps, italy