When you are under criminal investigation, it’s best not to start off at a disadvantage. After all, law enforcement has a plethora of tools at their disposal aimed at finding, pinning and incarcerating you. One such tool involves following you as you find your way home.
If you have a GPS system in your car, or if you use a phone with a built-in device with GPS capabilities, police can track the device with little regulatory oversight. As it stands, no legal framework for such surveillance is in place, making it not only difficult to prevent police from tracking you, but from having the right to know whether they’re doing so. Add to that the incentive for communication carriers to cooperate with law enforcement, sans such pesky items as judicially-sanctioned warrants, and it spells a doomsday scenario for suspects seeking every which way to defend their rights to travel freely.
That’s why, during the last Congress, U.S. Senator Ron Wyden (D-OR) and U.S. Rep. Jason Chaffetz (R-UT) introduced a bill forcing law enforcement to obtain a warrant, based on probable cause, prior to using phone tracking and GPS data to monitor a suspect. The bill, called the Geolocation Privacy and Surveillance Act, was aimed at providing a legal framework for the use of increasingly adept geolocation technology, not just to law enforcement, but to commercial entities and private citizens. It failed to garner sufficient support, despite the U.S. Supreme Court ruling in United States v. Jones, which held that placing a GPS tracking device on a suspect’s car was tantamount to a “search” under the Fourth Amendment.
Last week, the bill was reintroduced in Congress. This time, new, prominent supporters of the bill hope it will gain just the right traction to move through the chambers. The ACLU issued a press release in support of the measure, and new congressional sponsors from both sides of the isle – Rep. John Conyers (D-MI), Senator Mark Kirk (R-IL), among others – provide hope that the contours of the law will conform to advancements in technology.
Other sponsors of the bill include the Electronic Frontier Foundation and the Computers and Communications Industry Association.
As well as limiting law enforcement’s actions without a judicial warrant, the bill would also make it illegal for private citizens to use an electronic device to track another person’s location. Related bills have been brought forth this year, ranging from a measure requiring police to obtain a warrant before accessing either mobile locations or online communications, to a bill requiring private companies to obtain a customer’s consent prior to revealing his geolocation data.
All of the bills maintain a “what’s good for the goose, is good for the gander” approach, putting similar restrictions on law enforcement’s invasion of an individual’s privacy as there would be on other private citizens. The pattern that emerges shows lawmakers who acknowledge that police can no longer dance around the Fourth Amendment deferring to silence in the legislature.
“Put simply”, said Chaffetz, “the government and law enforcement should not be able to track somebody indefinitely without their knowledge or consent or without obtaining a probable cause warrant from a judge”.
U.S. Supreme Court Affirms Drug Dog’s Sniff Is Unconstitutional Search
The proposed bill also comes in the midst of other positive Fourth Amendment developments. Just today, the Supreme Court ruled that the use of trained police dogs constitutes a Fourth Amendment “search”. The decision concerned a case where a drug-sniffing dog was sent to roam around a house, absent a warrant, upon a tip that marijuana had been grown inside. The 5-4 decision, with a majority opinion penned by Justice Antonin Scalia, affirmed a Florida Supreme Court decision excluding the dog-sniffing evidence on the grounds that it constituted an illicit, warrant-less search.
With the Supreme Court decision, the myriad legislators drawing attention to the issue, and bi-partisan support at a time when such a concept seems improbable, now is the time to put pressure on your representatives to push the GPS bill through. It is unlikely that any states will enact such broad measures, and even less likely that they would be effectual without federal guidelines for the legality of the practice.
So speak up, write a letter or two, and watch your tracking devices. For now, they’re not safe from police surveillance.
About David Matson