Warrantless GPS Tracking Heads to the Supreme Court

Imagine you’re going about your daily business when suddenly you notice some strange wire sticking out of the back of your vehicle. After a little investigating you discover it’s attached to a strange piece of equipment stuck behind the exhaust with a magnet. What is it? Maybe a bomb? No way to know. After some digging around on the Internet you identify it as a GPS tracking device which sells exclusively to army and law enforcement. Before you know it there’s FBI at your door demanding the return of their expensive equipment.

Sound far fetched? Well this is becoming a common experience for an increasing number of Americans as law enforcement officers readily ask forgiveness rather than permission to intrude on people’s privacy without warrants. The Justice Department has said that it’s agents use GPS tracking devices with “great frequency,” and GPS manufacturers have reported that they’ve sold thousands of such devices to the Federal Government.

Recently a 25-year-old in California who asked to be identified only as Greg found not one but two different devices on his SUV. He found the first one about three weeks ago while visiting his mother in Modesto. On November 1st Wired.com photographer Jon Snyder went out to photograph the device, which was about the size of a mobile phone. The next day, after the first device was removed, Greg discovered that it had been replaced with a different model. In addition a witness reported seeing a strange man poking around underneath his girlfriend’s car, suggesting they may have been tracking her as well. The man jump out of an unmarked Crown Victoria (a common model for police cruisers) with tinted windows and sped off when he was finished. When Wired.com went out to photograph the second tracker three police cars appeared at the scene to silently observe the interview. Greg insists he can think of no reason why law enforcement would take an interest in him except that he purchased the SUV from his cousin in Mexico.

Cases like these raise concerns about the erosion of privacy protections. FBI Special Agent Joseph Schadler said, “court decisions have consistently upheld that there is no warrant necessary for GPS tracking of a vehicle.” but that’s not entirely true.

This issue in full of legal vagaries and there are contradictory rulings from the Ninth Circuit Court of Appeals and the District of Columbia (DC) Court of Appeals.

In January, the Ninth Circuit Court ruled in US v. Pineda-Moreno, making it legal for federal agents to plant a GPS tracking device on your vehicle without a warrant. DEA agents used a device to connect Juan Pineda-Moreno to an illegal marijuana grow operation. Pineda-Moreno’s attorney argued that entering his property to plant the tracking unit violated his privacy, but the court disagreed.

The case concerned a legal precedent known as the ”open fields doctrine” which holds that you have no reasonable expectation of privacy on private property that is not fenced in. Because your driveway is accessible to mail carriers and neighbors, there is no assurance that federal agents will not plant surveillance equipment on your vehicle without a warrant. Where fences do exist on driveways, there is still no expectation of privacy in public parking lots. Beyond that, the court held that so long as you are on a public road, tracking you is legally no different than following you in an unmarked car, which does not require a warrant.

Chief Judge Alex Kozinski warned in his dissenting opinion, ”We are taking a giant leap into the unknown, and the consequences for ourselves and our children may be dire and irreversible. Some day, soon, we may wake up and find we’re living in Oceania,” referring to George Orwell’s dystopian classic 1984, where an authoritarian state monitors a subjugated citizenry 24 hours a day, criminalizing thought itself.

In August 2010, in US v. Jones, the DC Court ruled the exact opposite of the Ninth Circuit Court decision, that law enforcement does need a warrant when tracking your car by GPS. In this case the issue was not an expectation of privacy in the driveway where the device was planted, but rather the degree of privacy expected on public roads.

The prosecution argued that radio transmitters have been used to track vehicles without a warrant since the early 80s. In the past, the Supreme Court has held that police can follow a vehicle assisted by a radio transmitter because that movement is already observable with the naked eye.

The difference between tracking with a radio transmitter and a GPS unit, according to this ruling, is that the transmitter requires the attention of an officer following the vehicle in real time, but a GPS unit can record movements for months at a time. Thus, eliminating the need for an observing officer. It’s the ability to aggregate the information that makes the difference. The movement of individual cars may be observable to the naked eye, but seeing the movement of one car for months at a time could tell agents where the driver prays, what associations they are members of, what their purchasing habits are. It could even reveal if they are having an extramarital affair, all of which are not observable with the naked eye. In other words, while there is no expectation of privacy on public roads, it is reasonable to expect a general anonymity.

George Washington University Law Professor Orin Kerr asks, ”When is the line crossed?” The distinction in this decision is not the type of surveillance, but it’s duration. According to Kerr, this means somewhere between one day and one month of tracking, a warrant suddenly becomes necessary. But determining when that line is crossed is functionally at the discretion of the officer. Kerr worries that, ”the tool (GPS) is just that much more dangerous because even though the information that is obtained is the same, there’s just a greater risk of abuse.”

This week oral arguments in US v. Jones are being heard by the US Supreme Court which could decide this question once and for all. The Obama administration aims to overturn the DC Court ruling that required a warrant to GPS track your car using the “open fields doctrime” argued in US v. Pineda-Moreno. If successful law enforcement will be able to use covert, 24-hour surveillance against anyone who drives on public roads in on-going warrantless fishing expeditions. Welcome to the land of the free.

Numerous civil rights organizations have submitted amicus curiae (friend of the court) briefs including Downsize DC, The Electronic Frontier Foundation, the ACLU and CAIR asking the Supreme Court to unambiguously reject this practice and uphold the DC Court’s decision that warrantless GPS tracking violates the Fourth Amendment.

“It’s extremely problematic,” says Zahra Billoo, an attorney in Yasir Afifi’s suit against Attorney General Eric Holder and FBI Director Robert Mueller. “They are invading people’s privacy, not only without warrants, but without reasonable suspicion.” Afifi, a 20-year-old business marketing student, discovered a GPS device on his vehicle last year. The only dirt they had on him was, “an anonymous tip” which is cop-speak for, “we’re making stuff up.” Afifi’s only crime was traveling to Egypt to visit family. Even the agent that confronted him to retrieve the device after it was discovered told him, “You’re boring.”

Echoing Pastor Martin Niemoller, Zahra Billoo added, “For a lot of us it’s like, Well I’m not selling cocaine, so let them put a tracking device on the car of someone who is suspected of selling cocaine. And I’m not a terrorist, so let them put the device on someone suspected of being a terrorist. But it shouldn’t be unchecked authority on the part of police officers. If law enforcement doesn’t care to have their authority checked, then we’re in a lot of trouble.”

Afifi’s case is on hold pending the Supreme Court decision, and if the court rules like we all hope they will Greg and many others may be filing similar suits. But if it doesn’t it’s about to get a little more Big Brother around here.

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