Federal Judge Calls Geolocation Tracking Orwellian

Thursday, August 25, 2011



U.S. District Judge Nicholas Garaufis has ruled that law enforcement must obtain a full-fledged search warrant based on probable cause in order to access the geolocation data of a suspect during the course of an investigation.

Federal law enforcement authorities had sought to obtain the data from the suspect's mobile service provider under the less stringent standard that the information was "relevant" to the investigation.

“While the government’s monitoring of our thoughts may be the archetypical Orwellian intrusion, the government’s surveillance of our movements over a considerable time period through new technologies, such as the collection of cell-site-location records, without the protections of the Fourth Amendment, puts our country far closer to Oceania than our Constitution permits,” (.pdf) Judge Garaufis wrote.

“It is time that the courts begin to address whether revolutionary changes in technology require changes to existing Fourth Amendment doctrine. Here, the court concludes only that existing Fourth Amendment doctrine must be interpreted so as to afford constitutional protection to the cumulative cell-site-location records requested here," the judge also wrote.

The decision by Judge Garaufis is illustrative of the growing legal debate over the circumstances in which law enforcement should be allowed to access tracking data, with decisions from various courts falling on either side of the Fourth Amendment issue.

Three prior rulings by circuit courts of appeal have upheld the practice of GPS tracking by law enforcement without requiring a warrant or court order.

The crux of the current matter under consideration is whether or not a 1983 Supreme Court ruling that allowed the use of a location beacon to track the movement of chemicals that did not require a warrant applies to GPS monitoring of suspects in an investigation. 

In one case, the District of Columbia court of appeals ruled that the 1983 decision does not apply to GPS tracking of persons, stating that a person “who knows all of another’s travels can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.”

The court ruled that the case “illustrates how the sequence of a person’s movements may reveal more than the individual movements of which it is composed."

Meanwhile, Senate Judiciary Committee Chairman Patrick Leahy (D-Vermont) has drafted legislation that would allow law enforcement to access the data without probable cause if the data can be shown to have resided on a third-party storage system for more than 180 days.

Leahy's bill, though, would require a court order for accessing geolocation data in real time for the purose of tracking a target's current location and future movements.

In contrast, Senator Ron Wyden (D-Oregon) began drafting legislation last spring that would require law enforcement officials to obtain a court-ordered search warrant before conducting electronic tracking operations on cars and cell phones.

The proposed legislation, called the Geolocational Privacy and Surveillance Act (GPS Act) pits service providers, would secure U.S. citizen's privacy in regards to the use of GPS and wireless device location monitoring in the course of investigations.

The Justice Department has previously argued that citizens have no reasonable expectation of privacy concerning stored records detailing the location of their cell phones, and other law enforcement officials have speculated that requiring warrants for mobile surveillance will hinder investigations.

In April of this year, the Supreme Court indicated that they will consider arguments regarding the freedom of movement, privacy, and whether warrants are required for GPS tracking by law enforcement.

The Department of Justice (DOJ) is urging the Supreme Court to reverse a lower court's decision that overturned a conviction that was based partly on evidence collected by way of a GPS tracking device that had been planted on a suspect's vehicle without a warrant or court order.

The DOJ argues that “a person has no reasonable expectation of privacy in his movements (.pdf) from one place to another," and that requiring a warrant for placement of GPS tracking devices would seriously hamper criminal investigations.

Privacy advocates insist that geolocation monitoring and records should be considered in the same light as the wiretapping of citizen's communications, arguing that protections would not prevent tracking or access to stored records by law enforcement, but would simply require they make a case for due cause before a judge and obtain a warrant first.

“Regardless of what the courts decide, the right answer when it comes to the Fourth Amendment does not preclude Congress as a policy matter that it should protect location data more strongly," said staff attorney with the Electronic Frontier Foundation, Kevin Bankston.


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