“This is the kind of thing we like to throw lawyers at,” the ACLU told Yasir Affi, according to a Wired article from October 2010. Affi, a US citizen since birth, had just days before found a GPS tracking device planted on his car. FBI agents reclaimed the device, offering no explanation as to why Affi had been targeted for GPS tracking in the first place.
The ACLU, as well as many others, sees warrantless GPS tracking as a violation of our Fourth Amendment Right to be protected against unreasonable searches and seizures. This fall the Supreme Court will consider the issue when it hears US v. Jones, a case involving a man’s conviction of conspiracy to distribute cocaine, a conviction that was based in part on four weeks of GPS data collected surreptitiously by the police.
Specific Issues with Warrantless GPS Tracking
Many organizations have filed amicus briefs with the Supreme Court, arguing why tracing a person’s movements using GPS without a warrant is a violation of Fourth Amendment Rights. The Yale Law School Information Society Scholars brief, for example, portrays GPS tracking as “superhuman,” giving law enforcement monitoring capabilities that are so beyond what they could otherwise accomplish as to effectively make them omniscient. This omniscience, the brief says, is a violation of privacy.
As Orin Kerr writes on SCOTUSblog, figuring out whether we can reasonably expect privacy from GPS tracking on public land (like roads) is complicated by an Inside/Outside standard that has arisen out of Fourth Amendment cases like Katz, Kyllo and Place. That is, “A search occurs when the government intrudes upon a private person, house, paper, or effect, but does not occur when the government merely observes something in a public space or in a space where the government is otherwise entitled to be.” Kerr dislikes the idea of doing away with the inside/outside dichotomy, which leads him to conclude that the court should permit warrantless GPS tracking.
Many people would disagree with Kerr, if only because the idea of the police being able to track your every movement on a whim is an extremely unsettling prospect. Kerr formulates his thoughts in order to answer the question when and where can we expect privacy? And there are few public situations in which you can reasonably expect privacy, a closed phone booth being one of them, but likely not the open road.
In order to try to figure out where our unease with GPS tracking comes from, I changed how I was looking at the issue from one of identifying where people can expect privacy, to trying to figure out what kind of privacy we fear losing to warrantless GPS searches.
If you’re driving on public roads you can hardly expect that your location is secret or deserving of secrecy. However, the people that see you driving in one area of town don’t know where you are going or where you have come from. Similarly, when you arrive in a new part of town the people who might see you there have no idea where you had been driving before. My point is that at any given moment your location is probably known to strangers because of the public nature of driving, but those same strangers don’t know where you have come from and will likely not know where you go after leaving the vicinity. Thus, I believe it is reasonable to expect that most of your driving history remains private from any particular individual, despite the fact that at any moment in time your location is not private. Where I drive reflects a lot about who I am through indicating where I spend my time and what activities I do. Even though strangers may see me at distinct moments during the day, no one person gains a complete understanding of how my driving creates patterns that reflect who I am.
I am not contending that, contrary to US v. White, I can expect others to keep confidential the locations at which they see me. Rather, it is wholly unrealistic to expect that the thousands of people who see me each day would work together to sort out my entire day’s driving history. With this kind of expectation of privacy—that my whole driving history is private from any one individual—GPS does start to seem like a “superhuman” tool. It allows one particular agent, law enforcement, to become omniscient regarding my driving behavior—a level of knowledge that on a day-to-day basis we expect others to find impossible to attain. For law enforcement to obtain so much information about my driving habits, other available tools like putting a tail on me would probably become intrusive enough to cause me to alter my driving. GPS allows them to monitor me “in my natural habitat”, so to speak. So, I argue that we should start thinking not only about where we can reasonably expect privacy, but also from whom we can reasonably expect to keep which data about our lives private.
Smartphones and the Private Sector
If we assume that law enforcement should need a warrant to track individuals using GPS, then another issue is raised. Why are we so relatively OK with our smartphones tracking us in a much more personal way than the police do? Last year it was discovered that iPhones track their users’ whereabouts using GPS coordinates. I don’t know whether all smartphone providers do track users’ locations, but the devices certainly have the capability to do so. To my knowledge, companies such as Google and Apple don’t currently sell identifiable data, but it ‘s not so hard to imagine that someday smartphone makers and/or service providers would be interested in collecting person-specific location data with the intent to sell it. Then, the police would be able to simply purchase the data for which they otherwise need a warrant to collect themselves. Such a situation would serve to nullify whatever protections the public has against warrantless GPS tracking. However, if we were to prevent law enforcement from purchasing data like these, that would put law enforcement in the awkward position of not having access to the same information that the general public could purchase.
Geolocation Privacy and Surveillance Act
Today, Senators Wyden (D-OR) and Chaffetz (R-UT) are co-sponsoring the Geolocation Privacy and Surveillance Act. The legislation is supposed to protect citizens through requiring warrants for GPS tracking and reduce the burden on law enforcement through reducing litigation associated with warrantless GPS tracking. The bill is a good step forward, but what will eventually happen regarding the massive amount of geolocation data gathered and to-be-gathered by the private sector is unclear. In order to stay on top of protecting our Fourth Amendment right to protection from unreasonable searches we need to start looking past government and begin speculating how private sector data collection has the potential to change how we control our private information in the future.
Yale Law Tech 