Legal

Privacy is For Sissies

Thalia.

Posted to Legal on Wed Feb 07, 2007 at 10:07:10 AM EST (promoted by port1080). RSS.

The 7th Circuit recently held (9 page PDF) that using GPS devices to track cars does not have any 4th Amendment (search & seizure) implications.  There hasn't been much media reporting, although some blogs have addressed the implications.

In this case, a GPS device was attached to a suspect's car, and the car tracking data was used in large part to convict him of methamphetamine manufacturing.  He appealed, suggesting that the attachment of the GPS device violated his 4th Amendment right against search & seizure.

The 7th Circuit dismissed his appeal, stating that not only was this not a search, the police don't even need "reasonable suspicion" to plant such devices.  This is because the use of such devices is no different than a policeman following a suspect in another car, except it's more efficient.  In other words, according to the 7th Circuit, tagging all cars with GPS trackers would be acceptable.  Judge Posner does address this as well.  He notes that "one can even imagine a law requiring all new cars to come equipped with the device so that the government can keep track of all vehicular movement in the United States," and notes that "this may raise 4th Amendment issues," but then declines to address those issues.

Time to start checking your cars for GPS transmitters.

Tags: written by Thalia, edited by Port1080, GPS, privacy, first ammendment, surveillance, government, law, constitution, Supreme Court (all tags)

This story: 28 comments (4 from subqueue)
Post a Comment
15

Re: Privacy is For Sissies

thefadd.

Wed Feb 07, 2007 at 03:16:59 PM EST

5.00

I agree. For the police to put a tracking device on an individual's car without a warrant seems wholy wrong on the face of it. I have a question, though. Is it illegal to work around warrant-approved wire tapping and tracking devices placed by law enforcement? I assume it would be in the case of phone lines and other means of public business. However, it seems difficult to contemplate that an individual would not have the right to modify their own car in any manner that is consistent with typical standards of safety. I.e...you should be allowed to remove the device.

escalators never fail; they just become stairs

16

^ 15

Re: Privacy is For Sissies

MayorBob.

Wed Feb 07, 2007 at 03:23:43 PM EST

5.00

The police can surveil you without a warrant, as far as I know.  A friend of mine who is a county detective said they did just that to follow someone they suspected of having offed his wife.  Even thought hubby tried to take the police to court to get them to stop, no court would hear the case as issuing an injunction against the police would constitute interference in a valid police activity.  This is just a more high tech version of tailing a suspect IMHO.

I think the key here is that the GPS doesn't have the same characteristics as a phone tap or a bugging device in that it's simply showing where someone is physically going and not recording any conversations, etc.  I believe, however, you're right in your final question; as there is no court order involved, if a suspect finds a GPS device on their vehicle, they have the right to remove it.

Illegitimi non carborundum.

18

^ 16

Re: Privacy is For Sissies

Thalia.

Wed Feb 07, 2007 at 03:41:06 PM EST

none

Or more effectively, placing it on someone else's vehicle.

The issue I have, and the reason this is different from having the individual just followed is because it provides full & complete data of everywhere the person went, how long he stayed at each location, etc.  That's a whole lot of data that requires no human effort.  I find it disconcerting that the police can just get weeks of my travel data (not to mention data of everyone else who drives my car), without even a reasonable suspicion.  One assumes that a live cop wouldn't follow around Joe Random, but GPS devices are under $100.  They could easily tag every car in their jurisdiction for less than it would cost to follow one individual full-time.

Thalia

20

^ 18

Re: Privacy is For Sissies

profwhat.

Wed Feb 07, 2007 at 03:49:01 PM EST

none

Is your concern that the police can do this for only $100, or that they can do it without reasonable suspicion?  The former is new; the latter is not.

23

^ 20

Re: Privacy is For Sissies

Thalia.

Wed Feb 07, 2007 at 05:20:00 PM EST

none

Both, really.  I knew they could use a human to follow my car with no basis.  But I would analogize the GPS transmitter to a wiretap.  Yes, the conversation leaves my house on a public wire, but that is still private data.  And if you can tape all that data, my rights are differently affected than if you have a guy with very good hearing stand outside my house & try to listen in.  Same with GPS devices continuously transmitting v. a guy in a car following me.  The first is a much more significant infringement of my rights than the latter.  Plus, as I said, much cheaper too.

The fact that technology makes this following not only much cheaper but much more efficient is a bad thing.  You end up wth less and less privacy, as total surveillance becomes truly affordable.  It's almost certainly coming.

Thalia

19

^ 16

Re: Privacy is For Sissies

thefadd.

Wed Feb 07, 2007 at 03:46:57 PM EST

none

Too bad the founding fathers didn't have the foresight to say something explicit like, you shall have the right not to have the government tie a piece of string to your horse for purposes of drawing a line in the dirt so they can come around later and see where you travelled. Would have saved a lot of legal fees at some point. In fact, I that's a pretty good analogy. If you don't think it's okay for cops to tie string to your horse for purposes of tracking you, then you can't think it's okay for cops to attach gps to someone's car. It's pretty much the same thing.

escalators never fail; they just become stairs

24

Inevitable?

uncarved block.

Wed Feb 07, 2007 at 07:51:38 PM EST

4.00

   I'm not much of a civil libertarian, mainly because I believe compromise is essential for civilization to keep going. The government should be able show good reason why a behavior or act is warranted, but the bar for me isn't as high as it seems to be for others. (And I say this having been a huge fan of Robert Anton Wilson for well over a decade.) While this gives me a vague uneasy feeling, upon reflection the technology is widespread enough I can't see how the courts could really come to any other decision. I remember a Supreme Court case that hinged on whether an IR device was common enough to warrant being considered extraordinary enough to violate the 4th Amendment, with the Court eventually deciding it was. Considering folk are putting GPS trackers on their pets, the technology can certainly labeled "common."
   The more interesting question to me is whether or not a universal GPS capability would be greeted with horror or relief. I mean, we're certainly headed that way voluntarily: cars come with them, so you'll (almost) never get lost; hikers are encouraged to carry them, in case they get lost; I found at least three sites via Google that will sell business owners GPS kits to track their own vehicles; and, as always, the kids are having deal with a new level of parental snooping (much to the annoyance of these folks. (Looks like a fun site for anyone looking for Bush-bashing from a (more or less) conservative vantage.) GPS transmitters in every car? I can see them becoming a standard feature in higher end cars soon, and an industry standard in ten-- because of consumer demand, and not any governmental decree.
   Now, I'm not saying this is a good thing, but then I'm a bit tech-phobic anyway, so I see this as another instance where technology enacted irreversible change before any but a savvy few thought to lay down some ground rules that would come in handy later. Meh. With "interconnectedness" being the big buzz word for the last couple years, I can't see how some kind of surveillance society was anything but inevitable.

Ex ignorantia ad sapientiam; e luce ad tenebras

1

Re: Privacy is For Sissies

port1080.

Wed Feb 07, 2007 at 10:20:19 AM EST

none

While I don't agree with the court's logic, I can kind of see where they were coming from. To look at a parallel case - it's legal for the police to put a suspect under surveillance and to sit in an apartment across from his house and watch him at all times. It's also legal to set up a videotape across from said suspect's house and watch him at all times. It's even legal to put up cameras on public streets to watch everyone at all times. We may not like it, but these exceptions have been in the law for a long time. The problem isn't so much with the court's decision as with the law itself. It would be nice to see someone start pushing for a "privacy amendment" to the constitution, that would more firmly limit the governments rights to track, watch, or otherwise bother us without good cause, but in this day and age I suppose it's naive to think that will happen anytime soon.

Ce n'est pas une pipe. C'est une signature.

2

^ 1

Re: Privacy is For Sissies

nmiguy.

Wed Feb 07, 2007 at 10:48:50 AM EST

5.00

It is one thing to watch a location to see what happens.  Another thing entirely to track a person wherever they go.  

6

^ 1

Re: Privacy is For Sissies

rombuu.

Wed Feb 07, 2007 at 12:39:43 PM EST

none

Are you really implying that cars have privacy rights?

7

^ 6

Re: Privacy is For Sissies

port1080.

Wed Feb 07, 2007 at 12:48:27 PM EST

5.00

Are you really implying that cars have privacy rights?

That's a meaningless argument. Telephone wires don't have privacy rights, but it's still illegal for the government to listen to your telephone conversations without a warrant of some sort (excepting, maybe, in cases where national security is involved, if you buy Bush's argument - but even then probably 90% of government wiretaps required a warrant). If we want to protect privacy rights by making it illegal for police to put GPS units on cars, we certainly could. The question is whether people care enough. My pessimistic bet is that most people don't.

Ce n'est pas une pipe. C'est une signature.

11

^ 7

Re: Privacy is For Sissies

nmiguy.

Wed Feb 07, 2007 at 02:29:02 PM EST

5.00 (funny)

And don't get me started on them "spidey-tracers" either.  The Web slinger is violating the privacy rights of guys like Rhino, Kingpin and Doc Ock by placing spidey tracers on their persons.  

10

^ 6

Re: Privacy is For Sissies

nmiguy.

Wed Feb 07, 2007 at 02:27:01 PM EST

5.00

No it isn't about cars having privacy rights.  It is not the observation of some location, it is the tracking of people and their activities.  Cars don't drive themselves.  People have a right to keep their activities private.  That is why police can't go into your house and set up secret cameras and whatnot without a warrant.  Your private activities are sacred.  Same with your transportation in many ways.  When you jump in your car and travel somewhere, nobody has a right to track you without a justifiable need to know.  People should not have to explain why they went to see a doctor or an ex-girlfriend or ex-boyfriend.  People should be able to go and interview for a job and not worry that someone is tracking them.  

13

^ 10

Re: Privacy is For Sissies

rombuu.

Wed Feb 07, 2007 at 02:43:02 PM EST

none

Cars are usually driven on public streets.  I don't really expect to have a right to privacy when I'm in public.  

When you jump in your car and travel somewhere, nobody has a right to track you without a justifiable need to know.

There is no such right, nor any law preventing this sort of thing.  Maybe it's your ideal, but that doesn't make it so.

14

^ 10

Re: Privacy is For Sissies

zyxwvutsr.

Wed Feb 07, 2007 at 02:46:35 PM EST

none

People have a right to keep their activities private
Only your private activities. Driving around on public roads is not a private activity and you have no reasonable expectation of privacy.
When you jump in your car and travel somewhere, nobody has a right to track you without a justifiable need to know
That's not true. It's perfectly legal to secretly follow someone around. There are even companies that you can hire to do it for you - all perfectly legal.

22

^ 14

Expectation via custom

Lou.

Wed Feb 07, 2007 at 04:12:50 PM EST

5.00 (astute)

Only your private activities. Driving around on public roads is not a private activity and you have no reasonable expectation of privacy.

However, what if by practice or custom, it came to believed that driving is a private activity.  It must be, or else why would so many people pick their noses with impunity during the commute?

It's the end of the world as we know it, and I feel fine

27

^ 14

Re: Privacy is For Sissies

nmiguy.

Thu Feb 08, 2007 at 08:43:48 AM EST

none

It may be perfectly legal to follow someone around but a person doesn't have the right to do so.  To track somebody.  I mean, it is harassment.  People get restraining orders all the time to limit the activities of stalkers.  Tracking peoples travels putting GPS on their cars is stalking.  Without a warrant and probable cause, I don't feel comfortable with anyone tracking my car.  

28

^ 27

Re: Privacy is For Sissies

zyxwvutsr.

Thu Feb 08, 2007 at 09:46:10 AM EST

none

People get restraining orders all the time to limit the activities of stalkers
Stalking is another matter entirely. Anti-stalking statutes are generally written to encompass threatening behavior. If someone is following you secretly they are not conveying a threat.
Tracking peoples travels putting GPS on their cars is stalking
No it is not stalking. It may well be vandalism, and some states have laws against "tampering with a motor vehicle," but, again, stalking must have a component of conveying a threat.
Without a warrant and probable cause, I don't feel comfortable with anyone tracking my car
I don't feel comfortable even if they have a warrant. But as the story points out the police don't need a warrant to justify following you around.

25

^ 6

Re: Privacy is For Sissies

rEvolution inAction.

Wed Feb 07, 2007 at 08:34:30 PM EST

4.00

Forget about privacy rights.. it's vandalism.

Tipping Sacred Cows

3

Opportunities

Lou.

Wed Feb 07, 2007 at 11:19:34 AM EST

none

While this is a sucky thing, I can't help but think that a whole cottage industry will crop up that will help people defeat these things.  And of course, that brings up a whole set of other issues.

Science fiction writer and physicist David Brin wrote an interesting article about watching the watchers in a "surveillance society".  

It's the end of the world as we know it, and I feel fine

4

Quis custodiet ipsos custodes?

wetkarma.

Wed Feb 07, 2007 at 12:28:11 PM EST

none

Back in the days of the Greeks, Plato wrote the above subject in the Republic...it roughly means who will watch the watchers or who will protects us from the protectors?

Memory is a strange bell, jubilee and knell.

5

Re: Privacy is For Sissies

thefadd.

Wed Feb 07, 2007 at 12:32:35 PM EST

none

The write-up doesn't specify how the gps device ended up on the suspects car and I can't open pdf documents because this computer at work is exceptionally lame. Can anyone tell me?

escalators never fail; they just become stairs

9

^ 5

Re: Privacy is For Sissies

snidleywhiplash.

Wed Feb 07, 2007 at 01:51:05 PM EST

4.00 (interesting)

From the rather poorly-written decision:

From someone else the police learned that the defendant was driving a borrowed Ford Tempo. They went looking for it and found it parked on a public street near where the defendant was staying. The police placed a GPS (global positioning system) "memory tracking unit" underneath the rear bumper of the Ford. ... So when the police later retrieved the device (presumably when the car was parked on a public street, as the defendant does not argue that the retrieval involved a trespass), they were able to learn the car's travel history since the installation of the device.

The decision cites United States v. Knotts as proof that "the mere tracking of a vehicle on public streets by means of a similar though less sophisticated device (a beeper) is not a search." and goes on "But the Court left open the question whether installing the device in the vehicle converted the subsequent tracking into a search." In Knotts the police secreted a tracking device in a container of chloroform sold to a friend of the suspect, then given to suspect and followed by car and helicopter.

The Supremes decision specifically points out that the case does not decide whether the warrantless installation of the beeper was legal, "we have not before and do not now pass on the issue". Brennan and Marshall go on to say "I think this would've been a much more difficult case if the respondent had challenged ... its original installation". The Garcia decision brushes away any concern about the installation because "The device did not affect the car's driving qualities, did not draw power from the car's engine or battery, did not take up room that might otherwise have been occupied by passengers or packages, did not even alter the car's appearance, and in short did not 'seize' the car in any intelligible sense of the word." Seems weasely to me.

12

^ 9

Re: Privacy is For Sissies

nmiguy.

Wed Feb 07, 2007 at 02:35:25 PM EST

none

Brennan and Marshall go on to say "I think this would've been a much more difficult case if the respondent had challenged ... its original installation".

That is very telling.  It suggests that the wrong question was asked to be decided.  

17

^ 12

Re: Privacy is For Sissies

Thalia.

Wed Feb 07, 2007 at 03:37:42 PM EST

none

Just FYI, here the right question was asked.  Brennan & Marshall's opinion was in the Knotts case.

8

^ 5

Re: Privacy is For Sissies

Thalia.

Wed Feb 07, 2007 at 01:48:57 PM EST

none

The cops put it on there, to track him.  I'm unclear what your question is.

21

^ 8

Re: Privacy is For Sissies

wetkarma.

Wed Feb 07, 2007 at 04:02:06 PM EST

5.00

Well my question would be: didn't the cops commit tresspass (at minimum) by placing a device on his private property?

Memory is a strange bell, jubilee and knell.

26

^ 21

Re: Privacy is For Sissies

dzetetes.

Thu Feb 08, 2007 at 02:21:18 AM EST

none

I wondered about that myself.  When I lived in New Mexico, I didn't have the time or money to get a concealed carry permit, but I wanted to keep a firearm close, as I had some "interesting" neighbors (mentally ill alcoholic gun-toting sex offenders) at the time.

I looked into what I was allowed to do, and it turns out that in New Mexico, unlike most other states, you can have a loaded, concealed firearm in your vehicle*, because your vehicle is considered an extension of your private property (in the sense of your house or land).  I wonder if that treatment of the vehicle-as-private-property would apply in a case like this.

*This was some years ago, so if the law has changed since, don't tell the judge "dzetetes made me do it!" if you get picked up for carrying in NM.

In regione caecorum, rex est luscus.

This story: 28 comments (4 from subqueue)
Post a Comment