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

New iPhone Leads to Fourth Amendment Violations???

So . . .  Apple released a new iPhone.

The most interesting aspect of the Apple story is the measures it takes to protect its intellectual property. In an effort to protect the new iPhone, Apple may have run up against the Fourth Amendment.

CNET reported  that Apple security personnel enlisted the help of the San Francisco police in locating a lost iPhone prototype. The iPhone was allegedly lost by an Apple employee at a bar in late July. The iPhone was tracked to a home. Apple security personnel and the police officers then went to the home. With the police standing by, the Apple security personnel searched the home, as well as a car and computer. 

The homeowner told reporters that the people who came to his house looking for the phone identified themselves as police (not Apple employees). He claimed that he never would have allowed Apple employees to conduct a searched.

The San Francisco Police are reported to have stated that “four SFPD Officers accompanied Apple employees to the . . . home. The two Apple employees met with the resident and then went into the house to look for the lost item. The Apple employees did not find the lost item and left the house.”

Of course, a lawsuit has now been threatened. Does it have a chance? Assuming that the consent for a search was invalid because of deception (a big assumption, perhaps), then the Fourth Amendment could have been violated. The general rule is that the Fourth Amendment” is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official. United States v. Jacobsen,  466 U.S. 109, 113 (1984).  However, the Court has also held that a person may be deemed a “state actor” when he has acted together with or has obtained significant aid from state officials. Lugar v. Edmondson Oil Co.,  457 U.S. 922, 937 (1982).

In this case, there is certainly a good argument that the Apple employee were acting as state agents in conducting the search. This would make them liable under the civil rights laws for any violations of the Fourth Amendment rights of the homeowner.

Finally: to add intrigue and a whiff of conspiracy to the story:  the video surveillance tape of the bar has been erased.  

This post originally appeared on the EDD Update blog.

Image: Apple