Supreme Court Considers Constitutionality Of Having People Tracked By GPS All The Time
from the expectations-of-privacy dept
Last year, we wrote about a (somewhat surprising, given similar rulings elsewhere) ruling by the appeals court for DC, saying that, while law enforcement could use a GPS device to track where you go on a trip, doing long-term, always-on monitoring went beyond the “reasonable expectation” of privacy, and was a 4th Amendment violation. This week, the Supreme Court heard the appeal on that case, and wondered whether or not such 24/7 monitoring was reasonable. The government’s argument is simply that when you’re traveling in public, it’s public, and so there’s no expectation of privacy. But, it sounds like the Justices recognize a rather problematic slippery slope developing around this argument:
This argument seemed to alarm several of the justices. “If you win this case then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States,” Justice Breyer said. “And no one, at least very rarely, sends human beings to follow people 24 hours a day. That occasionally happens. But with the machines, you can. So if you win, you suddenly produce what sounds like 1984.”
“This case does not involve 24-hour surveillance of every citizen of the United States,” Dreeben countered. “It involves following one suspected drug dealer as to whom there was very strong suspicion.” But he wasn’t able to explain how pervasive surveillance would have to get before it became constitutionally problematic.
Chief Justice Roberts asked if the government’s theory would allow the police to install tracking devices on the cars of the members of the Supreme Court. Dreeben said it would. He suggested that legislatures might want to place limits on such surveillance, but argued that it didn’t raise any constitutional concerns.
Justice Kennedy asked whether the government’s theory would allow the installation of a GPS tracking device on a suspect’s overcoat. Again, Dreeben argued that it would, provided that it only report information about the suspect’s movements in public places.
I also have to agree with Tim Lee, who wrote the Ars Technica post linked and quoted above, in noting that the lawyer for the guy who was surveilled, Antoine Jones, seemed to focus on a rather weak point in his argument. Rather than focusing on the problem that the appeals court noted — this “mosaic theory” that the sum total of this 24/7 surveillance violated the 4th Amendment — Jones’ lawyer focused on the question of trespassing in installing the GPS device, something that seems kind of meaningless when you consider that most such tracking can now be done remotely via mobile phones/satellites, without a direct device attached to a car.
Filed Under: 4th amendment, gps, mosaic theory, privacy
Comments on “Supreme Court Considers Constitutionality Of Having People Tracked By GPS All The Time”
The defendant’s lawyer is just trying to get his client off.
The justices can make any ruling they want whether it is based legislation or reality or not (see citizens united ruling). I really hope that the entire warrantless GPS tracking practice is struck down. Maybe then we can stop hearing about the secret interpretation of the patriot act.
Or, maybe the government will just keep it up and never introduce its evidence in a public court so it doesn’t get a hearing.
Chief Justice Roberts asked if the government’s theory would allow the police to install tracking devices on the cars of the members of the Supreme Court. Dreeben said it would. He suggested that legislatures might want to place limits on such surveillance, but argued that it didn’t raise any constitutional concerns.
Lemme guess, limits on placing these on members of the Supreme Court. Screw J.Q Public. Typical.
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That’s exactly how I read that too.
What happens when your vehicle travels onto private property? Not just your own but the private property of any one else. It is the same as the slipping a device into a coat or onto a person. If I own 350 acres in the hills there would be no way that an investigator could track my movements without trespassing.
The problem with GPS == tailing
A person tracking you has the ability to determine the limit of their jurisdiction, such that they cannot follow you into a gated community or onto a military base; they will stop tracking you when they are not allowed to follow. A person does not have to come into any contact with any of your private property. A person that’s following you can also be “made”; you can see them and confront them about what they are doing. There is also a cost that makes tracking everyone all the time impractical, thus mitigating the need for a warrant because the authorities will arguably focus their limited surveillance abilities on actual targets.
GPS trackers are totally different. They cannot make a decision about whether they are about to leave the limits of their jurisdiction, and instead they will record all details and then require analysts to review the data later and trust that they will go through the extra effort of discarding illegally captured information. A GPS tracker requires that it come into contact with private property. A GPS tracker cannot be “made”, so even if you find it you have no recourse at all. A GPS tracker is also relatively cheap compared to human surveillance, which thus enables a sort of dragnet surveillance that was not previously practical. It is also a tiny step for the government to use a ruling in their favor as precedent that the GPS info that the phone company has on you can be obtained without warrants.
Re: The problem with GPS == tailing
well said…
Re: The problem with GPS == tailing
That was my thought as well – how is it possible to make a GPS chip that will only track you in public places.
Your own home, and other people’s homes are private. Your office is likely a private building. Hell, even chunks of outside are private, such as estates and even some office and university campuses.
Also I don’t think it’s as easy as getting someone to delete the data which the GPS shouldn’t have recorded. As Google found out when they had picked up bits of information from people’s unsecured wifi they had to go through all sorts of loops to be allowed to delete it.
Re: Re: The problem with GPS == tailing
You have to remember that “private” from a legal sense isn’t as private as you think. You can park your car in your private driveway, but if it is visible from the street, it still isn’t truly private.
Further, if you enter a parking a garage, example, and then exit the parking garage a certain time later, your presence in the parking garage can be implied without having to look… so the GPS here really isn’t an issue either.
About the only places I can see it being an issue is on private lands, but even then… if they could fly a helicopter over you and watch where you go (visible from a public place) it is hard to say they don’t have the right to know. If it can be legally done with current police methods (cars, planes, helicopters, etc), then the GPS doesn’t really add or remove anything, it just does the job way more efficiently, with higher accuracy and less risk of causing someone to change their patterns because they think they are being followed.
Re: Re: Re: The problem with GPS == tailing
The problem that I have with this is that GPS tracking makes abuse of the system very possible.
It would be quite difficult to pull an EPA Agent Keith Phillips with traditional tailing methods. All of the bureaucracy and cost involved in getting real human beings to do tailing 24/7 for days at a time, or to acquire a helicopter for surveillance, ensure that abuse of such tools will be quite difficult. It acts as a pseudo-warrant to prevent the authorities from becoming unreasonable.
GPS tracking can be done by a single person, without raising the suspicion of superiors or others in the bureaucracy or the attention of the accounting department. It will enable abuse which was not possible before.
Warrants exist to prevent the authorities from abusing the citizens. The potential for abuse with GPS trackers is great. Therefore, they should be subject to warrants.
Re: Re: Re: The problem with GPS == tailing
Further, if you enter a parking a garage, example, and then exit the parking garage a certain time later, your presence in the parking garage can be implied without having to look… so the GPS here really isn’t an issue either.
Granted, but without the GPS all they could infer was that you were in the building. With GPS they can show that in fact you went up to the fourth floor where the body was found.
I appreciate the point about visible on private land =/= private though
Re: Re: Re: The problem with GPS == tailing
So because in theory the government ‘could’ monitor anyone of us at anytime in any location via satellite, and even when underground or in buildings (via appropriate infrared/thermal scanning technology, or the new back-scatter drive-by van ‘you must be a terrorist’ scanning….), we should expect NO PRIVACY at all?
Just because something ‘could’ be done with enough resources, technology, or ingenuity doesn’t mean that it should be legal. If something being possible means that it should be legal, then we would all be free to share our favorite movies and music with friends and family without fear of being sued into bankruptcy by corrupt corporations who have purchased laws saying it’s illegal to share….
If you really want to push the ‘because it can be done, it should be legal’ argument, lets see you apply it to the concept of sharing movies and music and explain why ‘it’s different this time’.
Re: The problem with GPS == tailing
A GPS tracker cannot be “made”, so even if you find it you have no recourse at all.
My hammer disagrees with you.
Block that Kick!!
Anyone up for a GPS blocker?
Invest in the stock of the company that makes the blockers.
Re: Block that Kick!!
There are tons of GPS jammers readily available on the internet. They are illegal in the US, but you can get them. Also, GPS signals are incredibly easy to jam — it’s trivial to build your own for about $5 with a minimal knowledge of electronics.
I have to laugh reading this story and the Techdirt spin on it, because it is one of those deals where you have to throw out everything you believe in otherwise to say it’s a bad idea.
If the technology exists, people will use it. You cannot “unlearn” the ability. Just like piracy, it’s going to happen. It can be done, so it will be done. In fact, it is an inevitable end result of the technology. If you can do it with someone (or group of someones) following the person at all times, there is little reason to say that the technology should not be used. After all, the technology is just making the possible more efficient. Think of it as “infinite policing”.
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The question isn’t if they can, the question is whether if it’s legal.
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the question of if something is legal or not cannot be asked about something that cannot be done.
The questions IS if it can, but once that is established, then its legality of use is the questions.
Can a gun shoot a bullet, yes, was it legal to shoot that gun yes or no ??
Can a stick shoot a bullet, is it legal to shoot that bullet ? if sticks dont shoot bullets the legal questions of if the stick shooting a bullet is impossible.
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We also have the technology to easily wipe out every last person on the earth, but I don’t hear anyone clamoring to use it.
It’s not a question of technical ability. It’s a question of incentives and consequences.
The incentive for law enforcement to warrantlessly track you 24/7 it is reduced if you can sue their asses for doing it. The consequences of making it illegal are increased judicial over site of the executive and greater privacy rights for all involved.
I believe it is a net good and hope it is soon outlawed.
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Just to clarify, I believe finding it unconstitutional is a net good
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@Anonymous Coward: “If the technology exists, people will use it.”
Nuclear weapon technology exists. Should we adopt a similar cavalier attitude about that?
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Right, let the police track someone that’s on a military base because he has a cell phone. That will go over real well with your theory of allowing all sorts of GPS tracking without a warrant.
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You have no idea what you’re babbling about, do you?
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yes, it is funny the world according to Masnick,!!
If a technology exists you can,,, nay MUST use it, with a total regard to the law or to any moral or ethical values
The progress of mankind is not a results of ‘technology’ it is a result of the appropriate, moral and effective use of the technology, and the choice NOT to use it if that is necessary.
the technology exists that can vaporise millions of people in a blink of an eye, mankind has chosen (mostly) on moral and ethical grounds NOT to employ that technology that way.
We (mankind) developed weapons, morals, ethics and the laws based on those morals and ethics ensures that technology is not employed for purposes that are not moral, ethical or legal.
The laws and constitutions you live under are a reflection of your societies moral and ethical values.
Not a reflection of your technological progress, technology has little to do with morals or ethics.
If it is immoral to kill someone, it is equally immoral to do it with a gun, or a stick, or a nuclear bomb, or a energy ray gun.
I would love to see Masnick in court saying to the judge “the technology made me do it !!!!”…
Re: Re: Re:
That’s not a bad troll.
However, as I stated previously, it’s about incentives and consequences, not your personal sense of morality.
The incentives for human beings to do things more efficiently and get things at a lower cost will not go away. No amount lobbying, wishing and trolling will make that basic drive go away.
You could try to destroy the tools, but the consequences of that are worse than the problem, at least from a rational citizens point of view.
We would give up a platform for efficient innovation, free speech, anonymity, and whatever else people get from the internet in exchange for paying higher prices and giving up a greater amount of personal freedom.
It won’t happen, at least not in a democracy at our technology level, and luckily for us trying to inspire moral panic probably won’t work at the expense of free speech in this society.
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GPS tracking has the incentives of being more effecient, you replace a significant number of undercover police officers with a single device. You up the accuracy and save a bunch of money, while obtaining the same information that is clearly available now if you are willing to put enough manpower on the job.
This is a case where technology takes your current “public place” standing and pushing it to it’s limits, but not beyond. It is an amazingly good application of technology, doing a job much more efficiently, simply, and without risk to human life.
It’s logical, it’s the future. Get use to it.
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“It’s logical, it’s the future. Get use to it.”
I know exactly what your saying. Who cares if it’s legal, if it makes things easier, and it’s logical, then it’s the future and we should get used to it. Take file sharing for example……
/sarc
Re: Re: Re:2 Re:
I’m sorry, are you confused?
No one is arguing that GPS surveillance in and of itself is illegal. What is being argued is that GPS surveillance without a warrant is illegal.
Re: Re: Re:2 Re:
We’ll see who the Supreme Court agrees with. I agree with your technical arguments. It is definitely efficient.
However, the public place policy is a matter of precedent by a court. It is not a matter of legislation and is therefore given less weight than say the founding document of our democracy by a group of public servants.
The SCOTUS can decide which ever way they want. Luckily, in the government world, you only need to convince 5 of 9 guys to agree with you.
In the rest of the world, there are a lot more people to convince.
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Just because you cannot enforce a blanket ban on piracy or illicit tracking, doesn’t mean you cannot enforce said policy on FREAKING PUBLIC EMPLOYEES.
Saying that a public officer cannot take bribes is not the same as a BLANKET BAN ON EVERYONE IN THE COUNTRY to accept money gifts.
Re: Guns and Brains
Just because I legally own a gun does not mean I can walk around and threaten/bully people with it.
Just because the Govt has the biggest guns does not mean they can legally threaten/bully people with them,
It happens illegally, but it is still illegal.
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But if ‘infinite sharing’ is illegal due to some outdated laws related to saving the printing presses, why should ‘infinite policing’ be legal when there are clearly laws (and constitutional amendments) that prohibit it (under the public interpretation, obviously we don’t know the super secret classified interpretation of the law that says this is all totally legal and the public can just to piss up a rope….)
Trespass or what ??
Jones’ lawyer focused on the question of trespassing in installing the GPS device, something that seems kind of meaningless when you consider that most such tracking can now be done remotely via mobile phones/satellites, without a direct device attached to a car.
The trespassing arguments is probably his strongest argument, and stands a much better chance than to claim the 4th amendment.
As they noted, if not for trespassing these is nothing stopping to Government from assigning 40 agents to monitor this person 24 hours a day. WITHOUT Trespassing or violating his rights.
What the argument is that trespassing is trespassing no matter how you consider it.
Trespassing is placing a GPS unit in a persons car, or entering a persons property.
Trespassing is also done if you trespass on the persons computer, or mobile equipment, it is still trespass if you access their mobile phone and read it’s GPS chip.
It is just as much trespass as if you were standing in his living room.
It is NOT trespassing if an agent is parked on the street outside your house watching when you come and go.
You cannot trespass in a public place like on the roads, and you cannot trespass on a private car even if that car is in a public place.
Re: Trespass or what ??
“You cannot trespass in a public place like on the roads, and you cannot trespass on a private car even if that car is in a public place.”
You may want to inform Orlando.
Re: Trespass or what ??
You got it darryl.
When the car is in the public place, it is not a trespass in any legal sense to touch the car, nor would it be a trespass to, as an example, put a flyer under the wiper. It is not a trespass for a parking enforcement person to mark your tire with chalk so they can come back in an hour to see if you overstayed your parking.
Attaching a device to the car, while it is in a public area, that does not damage the car, does not change the way it operates, etc… it’s borderline in some respects, but it is hard to imagine it being a specific trespass. They don’t have to enter the car to do it. They don’t have to violate rights to do it. At best, the claim could be made if the car was parked in private parking, that it might have been a trespass onto private property to reach the car. But beyond that, well… it’s a hard sell.
Re: Re: Trespass or what ??
When I am in a public place can you assault me?
No, and you better keep your hands off of my possessions as well.
According to DUI laws, if the keys are on me, I am in care and control, so keep your hands off of my property.
If your song is in a public place, like the internet say, can I do what I want with it?
Re: Re: Trespass or what ??
It is also not trespass for the mail man to place mail in your letter box.
But it would be trespass if your mailman opened and read your letter before he placed it in your letter box.
And it would be trespass if he retrieved the letter after it was in your mail box and took it away.
Your right it is not trespass to put a parking fine on the window of your car.
It IS trespass to place a tracking device IN YOUR car…
and gether information using that device.
It has to do with “intent”.
When someone places an add on your windscreen his intent is clear.
When someone installs a GPS tracker and transmitter in your car, that “intent” is not so clear.
no expectation of privacy.
It seems to me law enforcement and government have twisted the meaning of ‘no expectation to privacy’ into, ‘expect your privacy to be deliberately and continually broken’.
To me, no expectation of privacy means, if i’m walking down the street I might be inadvertantly caught by a tourist taking a photo/home video. Or if I’m having a conversation passersby may overhear. Or I’m having sex in the back seat of the car a passerby (or if I’m unlucky a cop, or even worset a family member) might catch me and take appropriate action. And so on.
Whereas the government (and often the courts!) seem to think it means expect to be followed, evasedropped on and all actions that you do or things that you say be collected, stored, correlated and data-mined.
Well, to me that is the opposite of privacy, not the lack of or ‘no expectation’ thereof.
Obama did say he was going to “fundamentally transform” the USA. It takes a massive set of titanium spheres to tell the Supreme Court that your position is that you could secretly install GPS tracking devices on all the members of the Court and on the entire U.S. population’s cars and coats and it wouldn’t raise any constitutional concerns.
Then again, it could be stupidity. It’s often confused for reproductive organs.
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Wrong president, the tracking happened on Bush’s watch.
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And continues under Obama. Whats your point?
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Of course, Dreeben is still employed by Obama and making the case for the government. If Obama was opposed to the tracking then he would have asked to drop the case…or at least the argument.
Stakeouts
The problem here is the word reasonable. What is reasonable to one may not be considered so by another, you cannot, unfortunately, measure reasonable, it’s subjective. If there was a 1-10 scale of resonable, this would be a lot easier, anything over ‘5’ goes (or whatever number is decided upon).
“The reasonable expectation of privacy”, if a convicted criminal is release on probation, during that probation, is it reasonable to know where he/she is all of the time? My personal views aside, you’ll find that there are strong arguments for both.
Going slightly off subject, when police ‘stakeout’ a suspect, is that not infringing on the suspects right to a reasonable level of privacy? Could the GPS tracking be used as a virtual stakeout?
From wiki:
A stakeout is the coordinated hidden surveillance of a location or person for the purpose of gathering evidence, especially in regard to criminal activity.
Lets install a tracker on every police car, they should have no expectation of privacy when in public.
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Agreed. I think they’re already doing that in some places.
Warrants
I would support 24/7 tracking only after a court signed a warrant to allow the tracking. Put some limit on the use of these devices so the gub’ment has to show cause why they need the information.
Soon SCOTUS will be deciding whether it is legal to require all citizens to wear a gps device at all times and whether said citizens are responsible for ensuring the device is operational.
Eventually, they will want to outfit everyone with shock collars – you know – just in case you are a terrorist or something. This is not tinfoil hat tomfoolery, it has already been suggested wrt airline passengers.
http://www.washingtontimes.com/weblogs/aviation-security/2008/Jul/01/want-some-torture-with-your-peanuts/
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You really need to get out of the house more. I know it is scary outside, but I am sure you can do it.
Your flights of fantasy are amusing, but such bullshit and you know it.
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The justices raised similar questions (i.e. if this is OK, Is it OK to put a GPS on someone’s clothes? If you don’t need a warrant, what’s to stop every American’s position from being tracked 24/7?). If abc gum is crazy, he’s in good company.
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Not sure why the standard response, when you don’t have one, is imply that your addressee is afraid of leaving the house – or even better afraid to leave mother’s basement. This could be a good subject for a research paper.
You did not read the provided link, huh. If the story is BS then surely you could find at least one source which refutes it. Given today’s political atmosphere, the story is entirely within the realm of possibility.
It not what honest government will
I think the question to ask is how can government abuse this. For the most part we have an ethical government, but in making rules for government conduct we have to ask what abuses are likely to occure.
So a police officer want to track his girlfriend?
Persons in government selling report on activity?
If it is legal for the government then it is legal for me (I vote therefor I am part of government).
Can I track and report on police (not that I ever would).
Why not use this for political spying?
Maybe a cult wants to track movements of its members, why not?
Why not require everyone to wear a tracking device and make that material always available to everyone?
Re: It not what honest government will
For the most part we have an ethical government. Aww thats so cute.
If they rule that it’s legal, not an invasion of privacy, and doesn’t require a warrant, does that mean your average Joe can slap a GPS tracker on anything found in public? Or does law enforcement get a special exception where the rest of us could be arrested for stalking?
What good does it actually do? You can prove where the object that had the GPS stuck to it was, but can you prove who was in possession of the object at the time?
Maybe they will make it like the red light cameras! If your car runs the red light, and you own the car, then you are responsible no matter who’s was driving!
“I also have to agree with Tim Lee, who wrote the Ars Technica post linked and quoted above, in noting that the lawyer for the guy who was surveilled, Antoine Jones, seemed to focus on a rather weak point in his argument. Rather than focusing on the problem that the appeals court noted — this “mosaic theory” that the sum total of this 24/7 surveillance violated the 4th Amendment — Jones’ lawyer focused on the question of trespassing in installing the GPS device, something that seems kind of meaningless when you consider that most such tracking can now be done remotely via mobile phones/satellites, without a direct device attached to a car.”
Maybe “most such tracking” can be done without a direct device, but the lawyer isn’t fighting a case against “most such tracking”. He’s fighting a case for his client, and his client was tracked with a device attached to his car. Boo-hoo for Tim Lee that the lawyer is focused on his client rather than being a white knight for some completely different cause.
Generally speaking, police require a warrant in situations where their actions would be, one way or another, illegal for a private citizen. Forced entry, searching/seizing property, massive invasion of privacy, accessing files shielded by privacy laws, etc. Not every act that requires a warrant correlates this way, but most do.
If the police are asserting that attaching a GPS device to a vehicle does not require a warrant, then it might well not be illegal for a private citizen to do the same. If doing so IS illegal and the law criminalizing it has no law enforcement exemption (or requires a warrant to qualify for an exemption) then you might be able to put anyone asking for the GPS device you found back under citizen’s arrest.
But ultimately, if it’s not illegal to attach GPS devices to property, I wonder how the police would react to finding a few on their patrol cars?
As Justice Scalia has pointed out, not everything that is bad is unconstitutional. If people do not support warrantless GPS car tracking, then they should influence their representatives or vote by referendum to pass laws banning it. For example, SCOTUS allowed broad eminent domain seizures in its Kelo decision, but Mississippi voters just yesterday passed Measure 31 which restricts them.
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Justice Scalia is an idiot.
My Congressman Ron Wyden once again proves he gets the bigger pictur.
To Breifly Quote:
Until relatively recently, law enforcement’s ability to determine an individual’s location and track their movements was largely limited to natural human powers of observation. These limitations meant that law enforcement was unlikely to dedicate the time, energy and resources necessary to follow you around twenty-four hours a day, unless they had a good reason to do so.
But technological advances have made round-the-clock tracking of large numbers of people increasingly easy. Police departments no longer have to pay overtime or divert resources from other projects to find out where an individual goes — all they have to do is place a tracking device on someone’s car or ask a cell phone company for that individual’s location history and the technology does the work for them.
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“all they have to do is place a tracking device on someone’s car or ask a cell phone company for that individual’s location history and the technology does the work for them.”
And they don’t feel the need to provide justification for such surveillance, although I’m sure they will have some sort of privacy disclosure statement that you supposedly agreed to. The next obvious step would to monetize the whereabouts of … well, nearly everyone. Advertisers and market research folks would love to have access to such information, but as always there is most likely a list of those who are exempt from such invasions of their private lives. Two sets of rules indeed.