Fellows from the Information Society Project at Yale Law School have just published an article on the upcoming GPS tracking case before the Supreme Court.

Fellows from the Information Society Project at Yale Law School have just published an article on the upcoming GPS tracking case before the Supreme Court.

Priscilla Smith, Nabiha Syed, David Thaw and Albert Wong are the authors of "When Machines Are Watching: How Warrantless Use of GPS Surveillance Technology Violates the Fourth Amendment Right Against Unreasonable Searches," 121 Yale. J. Online 177 (2011).  I highly recommend it.

The authors argue that “the use of GPS surveillance for prolonged monitoring without a warrant cannot pass muster under the Fourth Amendment.” They suggest that in evaluating new technologies, “wherever a new technology carries the potential for police abuse, the Court has allowed its use only as guarded by the warrant requirement, placing a check on the unlimited discretion otherwise afforded officers.” 

In particular, the authors suggest that the Supreme Court distinguished between technologies that merely enhance human senses (such as binoculars) and technologies that operate independently of humans (such as heat sensors).

This analysis would seem to suggest that GPS tracking of a vehicle is permissible without a warrant – after all, the GPS tracker merely does what a officer conducting traditional surveillance could do – not the location of a vehicle on public streets.

However, the authors suggest that there “is a vast technical valley between old technologies used by police officers, which merely assist in tailing suspects, and modern GPS surveillance technology, which automates tracking and surveillance.”

They point to two unique aspects of GPS tracking: 

(1) “Once the GPS tracking device is installed, it can operate autonomously over a prolonged period of time without human involvement, independently determining and remotely transmitting positional data twenty-four hours a day.” 

(2) “The electronic storage of gathered location data allows the data to be stored forever and considered at any time in the future alongside data collected from other citizens.”

I generally agree with this argument, and wrote last spring that “people have a reasonable expectation of privacy in the totality of their movements over the course of a period of time. . .  [and Courts]  are likely to conclude that the use of a GPS tracking device on a vehicle constitutes a search within the meaning of the Fourth Amendment.

The authors add a unique perspective on this case, suggesting that while there is no evidence of mass surveillance using GPS tracking yet, “circumstances might trigger” law enforcement to conduct such activities, pointing to a possible “terrorist attack by enemies (either foreign or domestic) whose ethnicity, religious affiliation, political persuasion, or other characteristics catalyze fear of or animus toward a particular minority group.”

Originally posted on EDD Update