To Track or Not To Track
May 12, 2009 1:26 PM Subscribe
[ConstitutionalRightsFilter] Two state appellate courts have ruled on the legality of tracking suspect vehicles with GPS. Both cases involved suspects for whom no warrants had issued. One state's intermediate appellate court ruled that GPS tracking was okay; the other state's highest court ruled (warning: pdf) that it was impermissible.
Is this legitimate public surveillance of public thoroughfares, or an invalid invasion of privacy and impingement on freedom of association?
Astute readers will note that both states have state-level constitutional rights regarding search and seizure, privacy, and freedom of association. These decisions do not necessarily implicate the U.S. Constitution.
Is this legitimate public surveillance of public thoroughfares, or an invalid invasion of privacy and impingement on freedom of association?
Astute readers will note that both states have state-level constitutional rights regarding search and seizure, privacy, and freedom of association. These decisions do not necessarily implicate the U.S. Constitution.
This post was deleted for the following reason: you either need to move this to your own blog, or to AskMe, this is really not what MeFi is for and could have been a decent post without the tagline. Please remember what the site is for and how it works, thanks. -- jessamyn
Perhaps this belongs on Ask Metafilter?
posted by Blazecock Pileon at 1:31 PM on May 12, 2009
posted by Blazecock Pileon at 1:31 PM on May 12, 2009
Perhaps this belongs on Ask Metafilter.
posted by Blazecock Pileon at 1:31 PM on May 12, 2009
posted by Blazecock Pileon at 1:31 PM on May 12, 2009
Perhaps this belongs on Ask Metafilter;
posted by dersins at 1:34 PM on May 12, 2009 [1 favorite]
posted by dersins at 1:34 PM on May 12, 2009 [1 favorite]
I can see the use in utilizing GPS technology to track criminals, but wouldn't it make more sense to implant them with computer chips? <-- (sarcastic)
But seriously people how is this concept any different than computer chip implantation? A few months from now some a**-hole will figure out it costs less to track them via chip when compared to GPS.
This is invasion of privacy and typical "big brother" keeping a watchful eye on who ever they want.
posted by eiro0701 at 1:34 PM on May 12, 2009 [1 favorite]
But seriously people how is this concept any different than computer chip implantation? A few months from now some a**-hole will figure out it costs less to track them via chip when compared to GPS.
This is invasion of privacy and typical "big brother" keeping a watchful eye on who ever they want.
posted by eiro0701 at 1:34 PM on May 12, 2009 [1 favorite]
It's a rhetorical question, BP. It's meant to spur discussion. I'm not actually looking for a legal answer (since the laws of different states are independent of one another, they are in fact both right, or at least not demonstrably wrong). Just a fun policy discussion.
posted by jock@law at 1:35 PM on May 12, 2009
posted by jock@law at 1:35 PM on May 12, 2009
From the Wisconsin case: "As part of their investigation, police sought and received a warrant authorizing them to covertly attach a GPS device to Sveum’s car in order to track it."
So, I don't quite get the 'for whom no warrants had issued' part of your post, at least in that case. Sveum's argument was mainly that the use of the GPS device, especially the data for locations other than public roads, constituted a search within the meaning of the Fourth Amendment to the US Constitution, a search that the warrant did not authorize.
Along those lines, Sveum's argument and the court's decision were definitely couched within Fourth Amendment terms rather than Wisconsin state constitutional terms.
posted by jedicus at 1:35 PM on May 12, 2009
So, I don't quite get the 'for whom no warrants had issued' part of your post, at least in that case. Sveum's argument was mainly that the use of the GPS device, especially the data for locations other than public roads, constituted a search within the meaning of the Fourth Amendment to the US Constitution, a search that the warrant did not authorize.
Along those lines, Sveum's argument and the court's decision were definitely couched within Fourth Amendment terms rather than Wisconsin state constitutional terms.
posted by jedicus at 1:35 PM on May 12, 2009
Oh and obviously: different states can have different standards for this kind of thing, which is why gay marriage is legal in Iowa and not Nebraska (insert your own 'cornhole' joke here)
posted by delmoi at 1:36 PM on May 12, 2009
posted by delmoi at 1:36 PM on May 12, 2009
I guess I'm just dense, but I don't see what the problem is.
Presumably, these people are voluntarily operating their vehicles on public roadways, in plain sight of other people.
So, how would GPS tracking of these vehicles be substantially different than simply following them - something for which the police do not need a warrant ?
I just don't see that there is a fundamental right to privacy regarding your location and travels while operating a motor vehicle on public roadways.
posted by Pogo_Fuzzybutt at 1:47 PM on May 12, 2009
Presumably, these people are voluntarily operating their vehicles on public roadways, in plain sight of other people.
So, how would GPS tracking of these vehicles be substantially different than simply following them - something for which the police do not need a warrant ?
I just don't see that there is a fundamental right to privacy regarding your location and travels while operating a motor vehicle on public roadways.
posted by Pogo_Fuzzybutt at 1:47 PM on May 12, 2009
Presumably, these people are voluntarily operating their vehicles on public roadways, in plain sight of other people.
So, how would GPS tracking of these vehicles be substantially different than simply following them - something for which the police do not need a warrant ?
By that same argument, one could say that a warrant isn't needed for a phone tap or bug if the phone is ever used in public, since the same information could be gathered simply by being near the speaker and listening carefully.
posted by FatherDagon at 1:51 PM on May 12, 2009
So, how would GPS tracking of these vehicles be substantially different than simply following them - something for which the police do not need a warrant ?
By that same argument, one could say that a warrant isn't needed for a phone tap or bug if the phone is ever used in public, since the same information could be gathered simply by being near the speaker and listening carefully.
posted by FatherDagon at 1:51 PM on May 12, 2009
And here we go, from the New York case: "While there may and, likely will, be exigent situations in which the requirement of a warrant issued upon probable cause authorizing the use of GPS devices for the purpose of official criminal investigation will be excused, this is not one of them."
So had the facts of the Wisconsin case come before the New York court it might have ruled differently. The New York court did ultimately rest its decision on state law, though: "In light of the unsettled state of federal law on the issue, we premise our ruling on our State Constitution alone."
Pogo_Fuzzybutt: That's precisely the theory employed by the Wisconsin court, which cited US Supreme Court decisions that developed that line of thinking. The US Supreme Court cases were not about GPS tracking, but older, simpler tracking technology, which led the New York court to decide that GPS is qualitatively different enough to demand a different standard. It practically invited the US Supreme Court to take up the issue.
For its part, the Wisconsin court urged the state legislature to regulate the use of GPS tracking technology by the police.
posted by jedicus at 1:52 PM on May 12, 2009
So had the facts of the Wisconsin case come before the New York court it might have ruled differently. The New York court did ultimately rest its decision on state law, though: "In light of the unsettled state of federal law on the issue, we premise our ruling on our State Constitution alone."
Pogo_Fuzzybutt: That's precisely the theory employed by the Wisconsin court, which cited US Supreme Court decisions that developed that line of thinking. The US Supreme Court cases were not about GPS tracking, but older, simpler tracking technology, which led the New York court to decide that GPS is qualitatively different enough to demand a different standard. It practically invited the US Supreme Court to take up the issue.
For its part, the Wisconsin court urged the state legislature to regulate the use of GPS tracking technology by the police.
posted by jedicus at 1:52 PM on May 12, 2009
jedicus, you're right. The underlying case did involve a warrant. My understanding is that the court ruled, however, that no warrant was required by the 4th Amendment because "no Fourth Amendment search or seizure occurs when police attach a GPS device to the outside of a vehicle." ¶19 The court reasoned that it can't be an unreasonable search or seizure if it's not a search or seizure at all.
The court discusses the Fourth Amendment a lot, that's true. There are three possible reasons I can think of for this. Maybe the court is just wrong; it is an intermediate appellate court and doesn't necessarily have the best judges. Alternatively, maybe Wisconsin law holds that its own provision (Wisc. Const. Art I § 11) was abrogated by the incorporation of the Fourth Amendment.
The third option seems most likely, though. States can give more, but not fewer, rights than federal law requires. States therefore have discretion to rule in favor of rights under the state constitution that the federal government is almost powerless to overrule. However, when ruling against those rights, the state court can be overturned if federal law dictates otherwise. Therefore, for a state court that doesn't want to be overturned, it makes sense to argue why the denial of a right makes sense under federal law.
posted by jock@law at 1:52 PM on May 12, 2009
The court discusses the Fourth Amendment a lot, that's true. There are three possible reasons I can think of for this. Maybe the court is just wrong; it is an intermediate appellate court and doesn't necessarily have the best judges. Alternatively, maybe Wisconsin law holds that its own provision (Wisc. Const. Art I § 11) was abrogated by the incorporation of the Fourth Amendment.
The third option seems most likely, though. States can give more, but not fewer, rights than federal law requires. States therefore have discretion to rule in favor of rights under the state constitution that the federal government is almost powerless to overrule. However, when ruling against those rights, the state court can be overturned if federal law dictates otherwise. Therefore, for a state court that doesn't want to be overturned, it makes sense to argue why the denial of a right makes sense under federal law.
posted by jock@law at 1:52 PM on May 12, 2009
Perhaps this belongs on Ask Metafilter:
posted by kirkaracha at 1:54 PM on May 12, 2009 [1 favorite]
posted by kirkaracha at 1:54 PM on May 12, 2009 [1 favorite]
Pogo, would you feel differently if the police put a tracker in someone's wallet or purse?
How about if the government required that auto manufacturers install trackers in all new vehicles, and then created a sophisticated computer algorithm that tracked driving patterns and identified suspicious cars for further investigation?
Once you exclude something like this from the coverage of the Fourth Amendment (or its state equivalents), you open the door for the government to do some very dangerous stuff.
posted by brain_drain at 1:55 PM on May 12, 2009 [2 favorites]
How about if the government required that auto manufacturers install trackers in all new vehicles, and then created a sophisticated computer algorithm that tracked driving patterns and identified suspicious cars for further investigation?
Once you exclude something like this from the coverage of the Fourth Amendment (or its state equivalents), you open the door for the government to do some very dangerous stuff.
posted by brain_drain at 1:55 PM on May 12, 2009 [2 favorites]
Please stop mixing up the descriptions of this case people.
New York Court of Appeals is its highest court - its equivalent of the supreme court in every other state. The summary here does not make sense: "Two state appellate courts have ruled on . . . . One state's intermediate appellate court ruled that GPS tracking was okay; the other state's highest court ruled (warning: pdf) that it was impermissible." Appellate Court is not a Highest Court. However, New York has shuffled the names around. The starting phrase should be "Wisconsin's appellate court and New York's Court of Appeals (its highest court) have ruled on..." There is a major difference in precedent to other states based on that.
posted by Maztec at 1:56 PM on May 12, 2009
New York Court of Appeals is its highest court - its equivalent of the supreme court in every other state. The summary here does not make sense: "Two state appellate courts have ruled on . . . . One state's intermediate appellate court ruled that GPS tracking was okay; the other state's highest court ruled (warning: pdf) that it was impermissible." Appellate Court is not a Highest Court. However, New York has shuffled the names around. The starting phrase should be "Wisconsin's appellate court and New York's Court of Appeals (its highest court) have ruled on..." There is a major difference in precedent to other states based on that.
posted by Maztec at 1:56 PM on May 12, 2009
Maztec, that's incorrect. A "highest court" such as the U.S. Supreme Court or the N.Y. Court of Appeals is indeed an appellate court. Google "appellate court" and you'll find countless citations. The description in the post is accurate.
posted by brain_drain at 1:59 PM on May 12, 2009
posted by brain_drain at 1:59 PM on May 12, 2009
Perhaps this belongs on Ask Metafilter.
posted by box at 1:59 PM on May 12, 2009 [1 favorite]
posted by box at 1:59 PM on May 12, 2009 [1 favorite]
It kind of goes without saying, but I'll say it anyway. The bigger question is, "do you trust the cops?" or more to the point, "how far do you trust the cops?" and/or "how much power to you want the cops to have?"
I remember being in Germany a few years back and discovering they had all kinds of checks and balances built into how coordinated their various local and regional police agencies were allowed to be? On the face of it, it didn't make sense to not let these various agencies freely share information about alleged criminals etc. And then it was pointed out to me. The last time Germany had a unified national police force, it was called the Gestapo.
posted by philip-random at 2:00 PM on May 12, 2009 [1 favorite]
I remember being in Germany a few years back and discovering they had all kinds of checks and balances built into how coordinated their various local and regional police agencies were allowed to be? On the face of it, it didn't make sense to not let these various agencies freely share information about alleged criminals etc. And then it was pointed out to me. The last time Germany had a unified national police force, it was called the Gestapo.
posted by philip-random at 2:00 PM on May 12, 2009 [1 favorite]
Maztec, I don't believe the New York state system distinguishes between appeal and certiorari; if not, then calling the Court of Appeals an appellate court is emphatically appropriate. It was certainly acting under its appellate (not original) jurisdiction. If I'm wrong please cite.
posted by jock@law at 2:00 PM on May 12, 2009
posted by jock@law at 2:00 PM on May 12, 2009
how would GPS tracking of these vehicles be substantially different than simply following them
Because the GPS trackers are physically attached to the car, which is someone's private property. Does driving on public streets mean that anyone can make modifications to your car? Does it imply consent to have the police attach surveillance devices?
Also, where are the cars when the GPS trackers are being attached? Are the police encroaching on private property to attach the devices?
posted by kirkaracha at 2:03 PM on May 12, 2009
By that same argument, one could say that a warrant isn't needed for a phone tap or bug if the phone is ever used in public, since the same information could be gathered simply by being near the speaker and listening carefully.
Two things: first, there's a difference between a tap and listening carefully as one provides both halves of the conversation and the other generally only provides the one. A warrantless tap of a publicly used phone would not pass muster because of the privacy right of the person on the other end, who may be in a private place.
Second, the modern court would likely be fine with using a parabolic microphone or other device to listen to only the public half of a conversation. In Katz v. US the Supreme Court held that a device placed on the outside of a public phone booth that intercepted half of the conversation was unconstitutional when used without a warrant. 389 US 347 (1967). Why? Because the booth provided a reasonable expectation of privacy as to the contents of the conversation. The same is not true, however, of a cell phone used in the open air or a public phone outside a booth.
posted by jedicus at 2:06 PM on May 12, 2009 [1 favorite]
Two things: first, there's a difference between a tap and listening carefully as one provides both halves of the conversation and the other generally only provides the one. A warrantless tap of a publicly used phone would not pass muster because of the privacy right of the person on the other end, who may be in a private place.
Second, the modern court would likely be fine with using a parabolic microphone or other device to listen to only the public half of a conversation. In Katz v. US the Supreme Court held that a device placed on the outside of a public phone booth that intercepted half of the conversation was unconstitutional when used without a warrant. 389 US 347 (1967). Why? Because the booth provided a reasonable expectation of privacy as to the contents of the conversation. The same is not true, however, of a cell phone used in the open air or a public phone outside a booth.
posted by jedicus at 2:06 PM on May 12, 2009 [1 favorite]
Also, where are the cars when the GPS trackers are being attached? Are the police encroaching on private property to attach the devices?
Wisconsin case: parked in the defendant's driveway (but the police had a warrant to attach it)
New York case: parked on the street
posted by jedicus at 2:08 PM on May 12, 2009
Wisconsin case: parked in the defendant's driveway (but the police had a warrant to attach it)
New York case: parked on the street
posted by jedicus at 2:08 PM on May 12, 2009
My belief is that, lacking knowledge of the technological progress two centuries might make, "on property owned by the government" (public) and "on property owned by you" (private) were a kind of Constitutional shorthand to describe conditions under which the government may or may not gather various kinds of data about a person for purposes including prosecution. I've made this particular argument before.
GPS is not something the founding fathers imagined, nor drug tests, etc. Imagine, if you will, molecular samplers (sniffers) on highways, busily detecting molecules of THC or various derived aromatics. We can call this a "pot sniffer." Could we install a pot sniffer device along major highways, then institute searches of clusters of cars, based on a positive result?
I have a test I apply for these kinds of cases. If this technology or right were in the hands of the British, would we have had a successful revolution? Would the founding fathers have found this intrusive and objectionable? In these cases, I believe that GPS tracking in the manner described tests as "less likely" and "yes," respectively. As long as we equate the concept of privacy to what you get when you are inside a structure on a patch of land you own and are out of line-of-sight, technological innovation will continue to erode that privacy.
posted by adipocere at 2:08 PM on May 12, 2009 [2 favorites]
GPS is not something the founding fathers imagined, nor drug tests, etc. Imagine, if you will, molecular samplers (sniffers) on highways, busily detecting molecules of THC or various derived aromatics. We can call this a "pot sniffer." Could we install a pot sniffer device along major highways, then institute searches of clusters of cars, based on a positive result?
I have a test I apply for these kinds of cases. If this technology or right were in the hands of the British, would we have had a successful revolution? Would the founding fathers have found this intrusive and objectionable? In these cases, I believe that GPS tracking in the manner described tests as "less likely" and "yes," respectively. As long as we equate the concept of privacy to what you get when you are inside a structure on a patch of land you own and are out of line-of-sight, technological innovation will continue to erode that privacy.
posted by adipocere at 2:08 PM on May 12, 2009 [2 favorites]
Are the police encroaching on private property to attach the devices?
I reminded of the Loretto cable TV case, though I'm not sure it would be of much use to a criminal defendant.
posted by exogenous at 2:09 PM on May 12, 2009
I reminded of the Loretto cable TV case, though I'm not sure it would be of much use to a criminal defendant.
posted by exogenous at 2:09 PM on May 12, 2009
If I found the tracking device and removed it, would I be arrested? Probably.
posted by absalom at 2:09 PM on May 12, 2009
posted by absalom at 2:09 PM on May 12, 2009
Prediction: nothing will happen about this until a Wisconsin cop is caught tracking women for personal reasons (thinks his wife/gf is cheating, is stalking a certain woman, etc.), and then there will be enough outrage for the legislature to do something. - Balloon Juice
posted by Joe Beese at 2:13 PM on May 12, 2009
posted by Joe Beese at 2:13 PM on May 12, 2009
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You do not have permission to track me. My vote has been cast.
Signed,
Malice
posted by Malice at 1:27 PM on May 12, 2009 [1 favorite]