The constitutional matter until now has been left to district courts around the country to decide, resulting in a patchwork of conflicting rulings. The use of GPS vehicle tracking devices is poised to become one of the most contentious privacy issues before the Supreme Court, if it agrees to hear an appeal filed by the Obama administration last month. The administration is seeking to overturn a ruling by a lower court that law enforcement officials must obtain a warrant before using a tracker.
According to Wired Magazine, GPS vehicle trackers, based on technology first used by the military for navigation, have become a popular law-enforcement tool for tracking people. Cruder than other forms of surveillance — they report only where a suspect’s car goes, not who is in the car or what occupants do when they arrive at a location — they’re nonetheless frequently used for supplementary surveillance. That’s because in most jurisdictions, investigators don’t need court approval to slap a tracking device on a driver’s car, and because the devices provide a stealthier and more cost-effective approach to surveillance than a team of cops trailing a suspect around the clock.
The devices, however, have become one of the most divisive Fourth Amendment issues facing courts around the country. The 9th U.S. Circuit Court of Appeals in California ruled last year that using a GPS tracker was no different than physically trailing a suspect in public, and that such surveillance was not protected by the Fourth Amendment, even if agents placed the device on a suspect’s car while it was parked in his driveway.
But Judge Alex Kosinski, in the dissenting opinion, called the use of GPS trackers without a court order “straight out of George Orwell’s novel 1984” and said they give government “the power to track the movements of every one of us, every day of our lives.”
A federal appeals court in Washington, D.C., agreed with him when it ruled in a different case last year that collecting data from a GPS device planted on the Jeep of drug suspect Antoine Jones amounted to a search, and therefore required a warrant. Prosecutors argued that the device only collected the same information anyone on a public street could glean from following the suspect. But Judge Douglas Ginsburg wrote in his ruling that the persistent, nonstop surveillance afforded by a GPS tracker was much different from physically tracking a suspect on a single trip.
“Unlike one’s movements during a single journey, the whole of one’s movement over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil,” he wrote. What’s more, the bulk of data gleaned by such a device over time could help deduce a lot about a person, such as whether he associated with political groups, was a heavy drinker or weekly churchgoer, was an unfaithful husband or an outpatient receiving regular medical treatment.
The Obama administration called the ruling “vague and unworkable,” and filed a writ in April asking the U.S. Supreme Court to review the case. A decision on whether the high court will hear the case is pending.
It’s not known how many people are tracked with GPS devices every year, but the devices don’t always go undetected. An elderly Arab-American in the San Francisco Bay Area reportedly discovered a vehicle tracker on his car in 2009, while he attended a free auto-repair workshop and let the instructor demonstrate an oil change on his vehicle.
Then last year, Yasir Afifi, a 20-year-old Arab-American college student in California discovered a device attached to his car when he took the vehicle into an auto shop for an oil change. After a friend posted photos of it on Reddit.com, and readers identified it as a GPS tracker, the FBI showed up at Afifi’s apartment demanding he return the device. He’s since filed a lawsuit (.pdf) over the tracking.
Although the Justice Department has said the devices are used by investigators “with great frequency,” neither the department nor local law enforcement agencies are required to compile or disclose statistics about their use in the way the Justice Department is required to report annually to Congress on the use of national security letters issued to ISPs and other businesses for customer records.