GPS tracking device (Creative Commons-licensed photo taken by Elona B. Shukron, Account Manager for TrackTec, Ltd.)

A federal appeals court is hearing argument over whether the government should have to obtain a warrant before using GPS tracking. The American Civil Liberties Union (ACLU) is in court to argue against warrantless GPS tracking.

The case is US v. Katzin. As ACLU staff attorney Catherine Crump describes:

In 2010, hoping to confirm their suspicion that the Katzins had robbed a number of Rite-Aid pharmacies, FBI agents attached a GPS tracker to Harry Katzin’s car to track its movements. The agents did not seek a warrant from a judge before attaching the GPS device. They used the tracker to follow the Katzins as they drove to and from another Rite-Aid, and then arrested them shortly afterwards.

Crump notes, “The Supreme Court unanimously decided [in US v. Jones] that attaching a GPS device to a vehicle and tracking it constitutes a ‘search’ under the Fourth Amendment, but the Court did not address whether law enforcement needs a warrant before conducting GPS tracking.”

The government, in their brief to the Third Circuit Court of Appeals, maintains a warrant should not be needed if law enforcement have “probable cause to believe” that a vehicle is “involved in criminal activity.” US attorneys argue “reasonable suspicion supported the installation and use of the GPS device.” They add, “Jones held that the installation of a GPS unit on a vehicle is a Fourth Amendment search. However, not every Fourth Amendment intrusion requires a warrant or probable cause.” A general test of “reasonableness” must be applied.

Warrantless GPS tracking, the government further argues, is permissible on public roads:

…Installing a tracking device like the one used in this case requires only a minimal intrusion on a vehicle. The device, which is referred to as a “slap-on,” is held to the exterior of the vehicle by magnets. No part of the vehicle is penetrated, damaged or removed. The device requires no wiring, and runs on its own battery power. Installation takes a matter of moments, and is much less intrusive than the typical stop and frisk of a person, which the Supreme Court has held may be performed without a warrant, on a showing of reasonable suspicion.

With respect to the monitoring, the effect on a privacy interest is minimal. In this case, unlike Jones, the period of time for which the GPS device was monitored was limited. The device was installed during the early hours of December 14, 2012, and was monitored until the van was stopped at approximately 2:30 am on December 16, 2012, a period of approximately 48 hours. The nature of the monitoring—that is, the information that was made available through use of a GPS device—was also very limited. A GPS tracking device conducts neither a visual nor an aural search of the item to which it is attached. The device, by itself, does not reveal who is in the car as driver or passenger, what the occupants are doing or what they do when they arrive at their destination. Unless combined with other information, it provides information only about the vehicle’s location. The information that the tracking device reveals about the vehicle’s location could also be obtained (albeit less efficiently) by means of visual surveillance. The Supreme Court “has recognized significant differences between motor vehicles and other property which permit warrantless searches of automobiles in circumstances which warrantless searches would not be reasonable in other contexts.”… [emphasis added]

The government diminishes the nature of the information being gleaned to make warrantless GPS tracking seem more innocent. The tracking allows law enforcement to discern patterns of life, which the target is engaged, so law enforcement can predict where that person will be next. It would be possible to figure out who was getting in and out of the vehicle and who was driving because the vehicle would stop at locations where these individuals worked or lived (presumably). Nobody is suggesting it gives off audio or video, however, it is a powerful tool for law enforcement to use to spy on individuals they wish to follow or actually suspect have committed a crime.

Fascinatingly, the government actually thinks warrantless GPS tracking is permissible because it is much less intrusive than “stop and frisks.” This practice by the New York Police Department is currently the subject of a class action lawsuit in New York.

The government asserts, “Requiring a warrant and probable cause before officers may attach a GPS device to a vehicle, which is inherently mobile and may no longer be at the location observed when the warrant is obtained, would seriously impede the government’s ability to investigate drug trafficking, terrorism, and other crimes. Law enforcement officers could not use GPS devices to gather information to establish probable cause, which is often the most productive use of such devices.” Nowhere in this statement does it explain what would be impeded.

The reality is that the government is willing to engage in warrantless surveillance on the mere faith that something may present itself and justify the surveillance. It has an exceptionally broad view of “reasonable suspicion”—the same broad view it relies upon when defending the right to conduct searches of laptops and electronic devices at US borders.

The ACLU argues in their amicus brief to the Third Circuit, “The safeguard provided by the warrant requirement is particularly important in the GPS tracking context because of that surveillance technique’s low cost and high degree of intrusion.” Justice Sonia Sotomayor acknowledged in her concurring opinion in Jones that GPS tracking is “cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously.” What Sotomayor meant was, “If GPS tracking is not subject to a warrant requirement, it can “evade[] the ordinary checks that constrain abusive law enforcement practices: ‘limited police resources and community hostility.’”

It goes on to suggest, “GPS tracking does not facilitate a brief and contemporaneous investigation of suspected criminal activity that is presently ‘afoot.’” Tracking is “an ongoing and open-ended investigation of future activity.” And add, “GPS searches do not intrude upon expectations of privacy about cars; they intrude upon expectations of privacy about their drivers’ and passengers’ locations over time.”

Also, the argument in support of warrantless tracking because it only occurred for a short period is rejected by the ACLU:

…[L]inking the warrant requirement to the duration of the GPS tracking would prove unworkable. Because the Court’s holding in Jones rested on a trespass theory based on the initial attachment of the device, the Court has not yet given guidance on how “prolonged” GPS tracking would have to be to implicate a target’s reasonable expectation of privacy. More saliently, at the time the FBI agents attached the GPS device in this case, they did not know, and could not have known, whether the tracking would last for two days or 28, or perhaps even longer. A rule that imposes different constitutional restraints based on factors wholly outside of law enforcement’s control would be a recipe for chaos. It would require law enforcement to make guesses about the duration of tracking and to link those guesses to their own assessments of reasonable suspicion and probable cause.  Moreover, it would require courts, in every GPS case, to conduct lengthy post-hoc evidentiary hearings on inevitable suppression motions. The better practice for both law enforcement and the courts is for the police to demonstrate probable cause ex ante to a neutral magistrate, and for the surveillance to take place under judicial supervision. [emphasis added]

It would be very easy for US attorneys to do an about-face and argue that placing a duration constraint was unworkable (as the ACLU does here). In trying to prevent the court from constraining the power of law enforcement to track individuals, it fabricated arguments it would not believe outside of this case.

GPS tracking is convenient to the national security state and cuts back on the amount of work the agency has to do. FBI Director Robert Mueller told a House Appropriations Committee l, according to the Washington Post, that “putting a physical surveillance team out with six, eight, twelve persons is tremendously time intensive” and it “will inhibit our ability to use this in a number of surveillances where it has been tremendously beneficial.”

Also, he claimed:

We have a number of people in the United States who we could not indict, there’s not probable cause to indict them or to arrest them who present a threat of terrorism, articulated maybe up on the Internet, may have purchased a gun, but taken no particular steps to take a terrorist act…And we are stuck in the position of surveilling that person for a substantial period of time.

The “threat” involves speech or a gun purchase. Assuming no actual plot was described in detail on the Internet or that the gun was purchased legally, there is no “threat.” Essentially, Mueller is lamenting the fact that without warrantless GPS tracking he would lose the ability to track people who engage in behaviors that make them seem like people who might want to engage in a “terrorist act.”

As Justice Stephen Breyer said during argument in the Jones case:

…[W]hat is the question that I think people are driving at, at least as I understand it and certainly share the concern, is that if you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States. And — and the difference between the monitoring and what happened in the past is memories are fallible; computers aren’t. And no one, or at least very rarely, sends human beings to follow people 24 hours a day. That occasionally happens. But with the machines, you can. So, if you win, you suddenly produce what sounds like 1984 from their brief. I understand they have an interest in perhaps dramatizing that, but — but maybe overly. But it still sounds like it. And so, what protection is there, if any, once we accept your view of the case, from this slight futuristic scenario that’s just been painted and is done more so in their briefs? [emphasis added]

The government, which argued in favor of dystopian and unconstrained surveillance powers, lost this case.