Open-Season Surveillance: GPS Under the Hood

September 13th, 2010. By Hunter West

How far is too far?

The capacity for a police department to surreptitiously affix a GPS (Global Positioning Satellite) unit under a suspect’s car and track the hapless individual for weeks at a time without his knowledge (and without a warrant) is not only raising the hackles of human rights activists—it’s also fostering disagreements amongst judges.

Either way, the Fourth Amendment needs an overhaul in this day of high-tech, advanced technology.

I suppose there were complaints about this same thing in a bygone era, when telephones were all the rage (land phones, not cell phones) and police figured out that if they tapped into someone’s phone line, they could recover secrets and private conversations (read: evidence) they would otherwise not have access to.

But they needed a warrant for that. And a warrant for searching someone’s premises. Approaching the court and seeking permission to invade the privacy of a suspect for the purpose of an investigation—assuming the police could provide adequate grounds for the request—added a welcome buffer into the mix.

But should the police require a warrant to put a GPS tracking device under someone’s car?

The courts are divided on the differences between long-term, and short-term surveillance.

Traditionally, the Fourth Amendment is held by the courts as not covering the trailing of a suspect due to the fact individuals have no expectation of privacy for actions exposed to public view.

But in July an appeals court overturned a drug trafficking conviction because the police used a GPS tracking device, hidden under the suspect’s SUV and so affixed without a warrant, to gather the evidence used to initially convict him.

And there is a difference, said the Court, between limited surveillance and prolonged surveillance—and how that impacts an individual’s rights for their overall movements to be private.

“Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble,” wrote Judge Douglas Ginsburg, in a summary of his ruling published earlier this summer in The New York Times.

“A person who knows all of another’s travels can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individual or political groups—and not just one such fact about a person, but all such facts.”

That decision, coming from the United States Court of Appeals for the District of Columbia, will likely be appealed to the Supreme Court. However, that’s just one case. There’ll be thousands of similar cases that will fall within this grey area, and legal scholars are calling for a fundamental re-think of how to apply the Fourth Amendment in today’s technologically advanced world.

It’s a valid point. On one hand, we have to feel somewhat relieved that the police have such capacities to root out criminals with the use of GPS devices, for example. Anything to make our streets and communities safer.

However—and as sad as this is—not every police officer, or force for that matter, is on the up-and-up. They’re human, and have sometimes been found to pursue someone or something for the wrong reasons.

That’s what the courts are for, to provide a safety for the subjective trigger that is a cop deciding on his own and perhaps without provocation, to search someone’s home and slide a GPS device under a car.

Maybe that’s YOUR car. Maybe you haven’t done anything wrong. But for some reason, someone in uniform decides that your movements need to be watched.

Some third party, such as a judge in a court of law, needs to be involved. Unless it’s a matter of life or death, don’t be putting a GPS under my car unless you have a warrant to do so.

We need to start that debate on the Fourth Amendment in the 21^st Century, and pronto…

Tags: Fourth Amendment, GPS, Invasion of Privacy, Police, Surveillance

This was posted on Monday, September 13th, 2010 at 8:27 am and is filed under Emerging Issues, Human/Civil Rights . Feel free to respond, or trackback. Read our comments policy.