[Vision2020] When GPS Tracking Violates Privacy Rights

[Art Deco]

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September 22, 2012
When GPS Tracking Violates Privacy Rights

For the right to personal privacy to survive in America in this digital
age, courts must be meticulous in applying longstanding privacy protections
to new technology. This did not happen in an unfortunate
ruling<http://www.ca6.uscourts.gov/opinions.pdf/12a0262p-06.pdf>last
month by a three-judge panel of the United States Court of Appeals for
the Sixth Circuit.

The case concerned a drug conviction based on information about the
defendant’s location that the government acquired from a cellphone he
carried on a three-day road trip in a motor home. The data, apparently
obtained with a phone company’s help, led to a warrantless search of the
motor home and the seizure of incriminating evidence.

The majority opinion held that there was no constitutional violation of the
defendant’s rights because he “did not have a reasonable expectation of
privacy in the data given off by his voluntarily procured pay-as-you-go
cellphone.”

The panel drew a distinction between its ruling and a ruling by the Supreme
Court last January in United States v. Jones, which held that the placement
of a hidden device on a suspect’s car without a valid warrant violated the
Fourth Amendment. The three-judge panel said that its case, in contrast,
did not involve physical trespass on the suspect’s private property. The
judges also asserted that the tracking in the case before them was not
sufficiently “comprehensive” to be “unreasonable for Fourth Amendment
purposes” and trigger the need for a warrant — even though the police
tracked the defendant’s every move for three days, hardly a negligible time
period.

The Jones case suggests that the Supreme Court’s future direction may be
more protective of privacy in cases involving new and potentially invasive
technologies. In two concurring opinions in that case, a majority of
justices agreed that “longer-term” GPS monitoring impinged on expectations
of privacy.

As Justice Sonia Sotomayor stressed in her concurrence, “GPS monitoring
generates a precise, comprehensive record of a person’s public movements
that reflects a wealth of detail about her familial, political,
professional, religious, and sexual associations.” If anything, tracking
someone using cellphone GPS capabilities is even more invasive than
following someone with a GPS device attached to a car since it allows for
24/7 coverage. Most people carry their phones wherever they go, including
into their homes.

The circuit court panel majority concluded that because the defendant’s
phone emitted information that could be picked up by law enforcement
agents, he had no reasonable expectation of privacy and thus no warrant was
needed to conduct the surveillance. This was at odds with yet another
Supreme Court ruling, in 2001, involving a thermal-imaging device aimed at
a private home from a public street.

Carrying a cellphone should not obliterate privacy rights or the Fourth
Amendment’s warrant requirement. The full Sixth Circuit should grant a
pending request for a rehearing and reverse the panel’s damaging ruling.


-- 
Art Deco (Wayne A. Fox)
art.deco.studios at gmail.com
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