Tuesday, November 8, 2011

GPS Tracking: Does It Need a Warrant?

Antoine Jones is a bad guy.  I don't think anyone will contest that fact.  He got nailed with over 200lbs of cocaine and over $800,000 a while back.  But the case got tossed out because the way the police observed him isn't entirely legal.

They put a tracking device on his car.

Full disclosure: I've done this.  At the request of a supervisor, I placed a tracking device inside a company vehicle, and retrieved the device at the end of each day to download where it had gone.  As it turned out, nothing untoward was going on and the suspicion was unwarranted.  As a representative of the agency to whom the vehicle belonged and at the behest of the supervisor to whom the driver reported, I placed a tracker and reported its findings to the supervisor.  I did not retain the findings and since they disclosed nothing of interest, I destroyed them.  The issue was one of workplace discipline, not discovering illegal activity.

But it appears that the US government is a little dodgy about whether it's legal for law enforcement officials, either local or federal, to place such a device on a car.  Especially whether it's legal to do so without a warrant.

Jones' car was monitored by such a device, one that transmitted his vehicle's location every second in real time.  Mine couldn't do that, but you can find them that do.  The thing is, Jones' car was equipped with a monitor but not with the authority of a warrant.  Cops just stuck it on his car and watched where he went.

That Jones was caught with the cocaine is beyond debate.  That he was caught with a suspiciously large amount of money isn't in question.  What's really beyond the pale is, the cops should not have been able to do that.

When investigating a crime, cops can either react to what they see with their own eyes, or they can explain what they suspect - and support that with evidence - to a judge, who will then either declare it worth further investigating and provide a warrant, or not.  There has to be this chain of authority, or else the police force will have to be considered a law unto themselves.  We all know just how bad "laws unto themselves" are.  That's how Libya wound up with Gaddhafi, look at how that turned out.

At the heart of this case in particular is the warrant.  According to law enforcement, GPS data is how they gather enough information to convince a judge that a warrant is, for lack of a better term, warranted.  But what about that initial GPS device?

It's nothing to say that anyone can watch you driving around.  Can't help it, you're out there in the open.  And if a policeman sees you, that's fine.  He sees everybody else around him too.  But suppose there's a GPS device affixed to your car that you didn't know about, constantly updating the policeman on exactly where you are, what direction you're headed at what speed, and where you stop?

It's a little offputting, isn't it?  What if he can ticket you for speeding because he has a GPS record of your exact speed?  It feels like he's cheating, doesn't it?  I've been pulled over for speeding once or twice (all verbal warnings so far!) and I didn't really mind being pulled over that much.  Yeah, I was going too fast.  Sure enough, and you caught me.  Busted, fair and square.

But what if the speeding ticket came in the mail?  "YOU WERE DETECTED IN A ______SPEED ZONE MOVING AT _____ MILES PER HOUR YOUR FINE IS $_____.  HAVE A NICE DAY."

With the cop, you can offer mitigating circumstances: "Either let me keep driving at the speed I was going or she's going to have the baby right here."  You can explain to the judge, "The throttle was stuck wide open.  Why else would I do 105mph in a 35 zone?  Yes sir, of course it's fixed.  Here's the receipt for the new parts."  With the GPS, there's just cold data.  Binary code, zeros and ones.  You're speeding or you're not.

In his Known Space-situated stories, Larry Niven describes a device for faster-than-light communication that makes it possible to detect when a traveler gets too close to a star, but because it requires a mind to work it, it cannot be left to an autopilot.  It has to be observed and interpreted.

GPS data is like that.  And of course the LEOs (that's Law Enforcement Officials) are indeed parsing out the meaningful data since we're nowhere near as advanced as Niven's Puppeteer-riddled future.  But what gets me is the fact of the infiltration on the LEO's part to get the data.

You can't control the light bouncing off you.  Going out, you know you can be observed.  But the GPS system requires a LEO place a device on your car and monitor that.

The monitoring isn't bad.  Going after bad guys is good and getting them fair and square is great.  If warranted GPS monitoring makes that happen, more the better.  But to place the device without a warrant, that's something else entirely.  That's an awful lot like an illegal search - your private property is altered without your knowledge.

Think of the "nanny cam."  It's totally okay in my mind, and in the mind of courts everywhere if I'm right, to place a monitoring device that watches how the nanny handles your child.  But put the nanny cam in the nanny's bedroom and you're in a completely different place: illegal search, wiretapping, etc.  Because what she does on her time with no kid around is completely up to her, unless she's lighting up a big doobie on your property.  You'd still have a tough time introducing evidence like that in court, if the room was designated the nanny's private residential space.

The question is one of privacy, and whether you have a right to an expectation of privacy.  That you are completely observable is beside the point, the point is that your private property has been illegally tampered with for the specific purpose of gathering evidence against you.  The same way LEOs cannot break into your home and install monitoring devices without a warrant, they shouldn't be able to do that kind of thing to your car.

If I ever find such a device attached to my car, I'm going to attach it to the next parked police cruiser I see.  Such unrestricted monitoring cannot be legal unless it is applied to all citizens equally.  Placing one presupposes a level of guilt and then dispassionately amasses a huge volume of data, whether that data is relevant to the case at hand or not.  How then if the data points up an illegal activity that was not part of the initial investigation?  If the placement of the GPS was under a warrant, but the warrant did not specify that crime, can that be considered a permissable search?

This is one of the many intersections where law and technology collide and grind.  As we generate more and more information about ourselves and continue to place more and more of ourselves into an open forum accessible by the world in general, what we retain for privacy must be protected even more carefully.

Catch me fair and square.

1 comment:

  1. I removed "maneesh's" comment because it smacked too much of unsolicited advertising.

    You may not have noticed, but while I currently have no advertisers, I do permit some advertising. I am, however, extremely picky about what I permit to be advertised alongside what I say. So I removed your message, maneesh. If that doesn't sit well with you, my apologies for your emotional distress, but not for the removal. You should have expected no less.