[News] DOJ Asks Supreme Court to Rule Cops Can Track Suspect by GPS Without a Warrant

[Anti-Imperialist News]

DOJ Asks Supreme Court to Rule Cops Can Track Suspect by GPS Without a Warrant

Posted Apr 25, 2011 10:55 AM CDT
By <http://www.abajournal.com/authors/4/>Debra Cassens Weiss

http://www.abajournal.com/news/article/doj_asks_supreme_court_to_rule_cops_can_track_suspect_by_gps_without_a_warr/

The U.S. Justice Department is asking the U.S. Supreme Court to 
overturn a federal appeals court decision requiring police to get a 
warrant before attaching a global positioning device to a suspect's car.

Acting Solicitor General Neal Katyal urged the Supreme Court to grant 
cert to resolve a circuit split, according to stories by the 
<http://www.washingtonpost.com/politics/court-asked-to-balance-information-age-advances-with-constitutional-protections/2011/04/22/AF2Q9IdE_story.html>Washington 
Post, Wired's 
<http://www.wired.com/threatlevel/2011/04/scotus-gps-monitoring/>Threat 
Level blog and 
<http://legaltimes.typepad.com/blt/2011/04/doj-pitches-gps-surveillance-case-to-supreme-court.html>The 
BLT: The Blog of Legal Times. At issue is whether use of the device 
is a "search" under the Fourth Amendment and whether a person has an 
expectation of privacy for his travel in public, The BLT says.

The police used a GPS device to record the movements of accused 
cocaine dealer Antoine Jones, including his trips to a stash house 
where police found cocaine and $850,000 in cash. The U.S. Court of 
Appeals for the D.C. Circuit overturned Jones' conviction because 
police did not get a warrant.

The government contends the GPS device can be installed under a 1983 
Supreme Court case, United States v. Knotts, which allowed police to 
install a beeper device in a can of chemical used to make drugs. 
There is no reasonable expectation of privacy in a person's movements 
from one place to another, the government argues in its 
<http://www.wired.com/images_blogs/threatlevel/2011/04/gpspetition.pdf>brief 
(PDF posted by Threat Level). The D.C. Circuit said the case did not 
apply because it involved tracking from one place to another, while 
the GPS was used to track a person's movements "24 hours a day for 28 days."

Washington, D.C., lawyer Daniel Prywes calls United States v. Jones 
"the seminal privacy case of the 21st Century," the Post says. He 
wrote a brief in the case for the American Civil Liberties Union and 
the Electronic Frontier Foundation.
******************************************************

Justice Department Pushes Warrantless GPS Surveillance



Analysis: A Supreme Court case is considering whether cops need a 
warrant before attaching a GPS device to a suspect's vehicle to 
covertly track its movement.

By <http://www.pcworld.com/author/Darlene-Storm>Darlene Storm, 
<http://www.computerworld.com/>Computerworld    Apr 25, 2011 9:36 am
http://www.pcworld.com/article/226177/justice_department_pushes_warrantless_gps_surveillance.html

In a court of law, the word "reasonable" is all important, what a 
reasonable person would do, or feel, or expect, or how a reasonable 
person would react to a situation. If it's not reasonable, then 
expect to lose. Is it reasonable to expect law enforcement, with no 
warrant, to 
<http://www.pcworld.com/businesscenter/article/199039/employee_monitoring_when_it_is_asked_to_spy.html?tk=rel_news>shoot 
a GPS tracking dart at your vehicle to better monitor your movements?

The Obama administration has asked the Supreme Court to resolve a 
conflict among federal appellate courts over the need for a warrant 
before attaching a GPS device to a suspect's vehicle to 
<http://www.pcworld.com/article/183607/sprint_downplays_report_it_shared_gps_data_with_feds.html?tk=rel_news>covertly 
track a person. In fact, the Justice Department said that a person 
traveling on public roads has "no reasonable expectation of privacy" 
in his movements, even if 'scientific enhancements' are used to help 
law enforcement with the tracking.

Last year, the U.S. Court of Appeals for the D.C. Circuit reversed 
the conviction of a drug dealer, Antoine Jones, since the government 
had violated Jones' privacy by covertly tracking his movements by 
GPS, and then using that data for search warrants of those locations 
to find drugs. The Justice Department said that the government 
surveillance by GPS in the Jones' case "raises no concerns about 
mass, suspicionless GPS monitoring."

Also in the 121-page 
<http://legaltimes.typepad.com/files/doj_gps_cert.pdf>DOJ petition 
(PDF), one of the arguments the Justice Department used was cost, as 
in the cost to install a GPS device being insignificant because "the 
Los Angeles Police Department can now affix a GPS device to a passing 
car simply by launching a GPS-enabled dart." The sources of this 
information included this statement, "The darts consist of a 
miniaturized GPS receiver, radio transmitter, and battery embedded in 
a sticky compound material. When fired at a vehicle, the compound 
adheres to the target, and thereafter permits remote real- time 
tracking of the target from police headquarters."

Let's hold it right there, on those two different thoughts of raising 
no concerns about suspicionless GPS tracking and the ability for 
authorities to "just tag the suspect vehicle, then fall back and 
wait." In 2006, the LAPD got excited about GPS-enabled darts by 
<http://www.starchase.com/>StarChase. In a 2010 article, 
<http://www.starchase.com/news-section/an-alternative-to-vehicle-pursuits.html>StarChase 
claimed that law enforcement using their product could target the 
adjustable laser dot from the aimer, launch the dart to the suspect 
vehicle, and immediately get GPS data. Furthermore, quoting the 
Arizona Highway Patrol, "The crooks haven't been aware they've been 
tagged. Even if they do discover it, it takes some real effort to 
remove the projectile."

If people can be tagged with a GPS-enabled dart in about a blink, and 
have no idea their movements on public streets are being tracked, 
then it seems reasonable that the warrantless surveillance violates 
the Fourth Amendment. In fact, it sounds a bit like stalking; if 
permitted to be done without a warrant, then it could easily be done 
on a large scale and without true suspicion.

Despite three other courts of appeal ruling that law enforcement does 
not need a warrant to use GPS tracking on a vehicle, the D.C. 
appellate court did not agree. 
<http://www.insidegnss.com/node/2565>Inside GNSS reported that the 
D.C. court of appeal wrote, "Continuous human surveillance for a week 
would require all the time and expense of several police officers, 
while comparable photographic surveillance would require a net of 
video cameras so dense and so widespread as to catch a person's every 
movement, plus the manpower to piece the photographs together...A 
reasonable person does not expect anyone to monitor and retain a 
record of every time he drives his car, including his origin, route, 
destination, and each place he stops and how long he stays there."

But the Justice Department said the appellate ruling "would prevent a 
widespread police practice of GPS-aided surveillance." The legal 
brief states, "Prompt resolution of this conflict is critically 
important to law enforcement efforts throughout the United States. 
The court of appeals' decision seriously impedes the government's use 
of GPS devices at the beginning stages of an investigation when 
officers are gathering evidence to establish probable cause and 
provides no guidance on the circumstances under which officers must 
obtain a warrant before placing a GPS device on a vehicle."

<http://legaltimes.typepad.com/blt/2011/04/doj-pitches-gps-surveillance-case-to-supreme-court.html>The 
Blog of LegalTimes quoted Jones' appellate lawyer as saying, it's 
"regrettable the Obama administration, which touted itself as a 
breath of fresh air, seems to be resistant when it comes to advancing 
the Fourth Amendment's interest in protecting a citizen's right to privacy."

I'm certainly not an attorney, but it seems reasonable to expect the 
Supreme Court to uphold our Constitution and Fourth Amendment rights, 
including the right not to worry about warrantless surveillance in 
the form of GPS tracking when there is not even probable cause. Just 
because the technology exists does not mean it should be used against 
the people to invade their privacy as if everyone is a criminal. The 
next thing you know, the authorities will want warrantless wiretaps 
to search our email. Oh, wait...





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