NPR this morning ran a story about the GPS tracking issue. The story highlighted the case of the college student who discovered an FBI GPS tracking device on his car. I originally wrote about this story here. NPR did another story, but there is no transcript, yet. Audio is here.
I have been posting a lot about this issue recently, as it seems to have caught on in the media. See here and here on the blog, for example. For more details, see here for a draft of an article I am publishing on the topic this winter.
For those who are new to the topic, here is my simplified legal analysis in a nutshell.
Prior Supreme Court cases that allowed the warrantless use of tracking devices were based on the technological limitations of the devices available to at the time. In particular, the devices could only be used to supplement and aid traditional visual surveillance, and were unable to record data on a vehicles movement without human intervention. In this respect, the devices were really only useful to aid investigations into particular suspicions of criminal conduct.
However, GPS devices permit law enforcement to conduct surveillance beyond a targeted investigation into a certain crime. In particular, the devices could permit law enforcement to undertake surveillance of a particular individual over an extended period of time in the hope of piecing together evidence of illegal conduct that was not suspected prior to the surveillance.
The protections provided by the Fourth Amendment, as the Supreme Court has often recognized, must change to meet new technology. Especially where the cases involve sustained and long-term surveillance of a targeted individual unrelated to any particular criminal action, no reasonable person would expect to be the target of such a massive police surveillance operation. Accordingly, because the use of these devices infringes on a legitimate expectation of privacy, the use of these devices constitutes a search which, absent the present of another exception, requires a warrant.