Friday, November 12, 2010

What others Are Saying About GPS Tracking – Part II

There has been a lot on this blog about GPS tracking, so I thought I would look at what others have been saying. 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.

Professor Hutchins published last spring a nice article on this issue in the Richmond Law Review. I regret that I only stumbled upon it now.

This article was written before the DC Circuit opinion in Maynard. Professor Hutchins suggests "intrusiveness" should be "the benchmark for assessing and defining the existence of a search under the Fourth Amendment." More: " intrusiveness should be clearly defined to require an examination of two factors: the functionality of a challenged form of surveillance and the potential for disclosure created by the device."

A key to this analysis is that Professor Hutchins would divide electronic surveillance devices into "sense-augmenting" devices and "extrasensory" devices. This approach is intriguing, and deals with the aggregation of data problem by suggesting that a court should examine "the extent of information potentially revealed by the surveillance device."

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