A Commentary on the Role of Global Positioning System Use by Law Enforcement under the Protections of the Fourth Amendment

The Constitution of the United States was adopted in 1787 and the Bill of Rights was adopted in December of 1791. When the Founding Fathers wrote and ratified these documents, they knew only a world of oil lamps, horse based transportation, and hand-written letters. The only objects in the sky were the sun, the moon, and the stars. They had no idea that electricity would be invented much less computers and mobile phones. In their day, the Founders wrote a document they believed would protect the liberties of the people of the United States. During the ratification of the Constitution, there was a great deal of controversy surrounding the Bill of Rights. Many refused to even sign the Constitution without the guarantee that a Bill of Rights would be put into place.[1] Others, however, argued that the rights of the people should not even be written down so as to ensure that their rights were not limited by words on a page.[2] Nevertheless, the liberties that all Americans cherish: free speech, freedom of religion, the right to keep and bear arms, the right to a trial by jury, among others were enshrined in the foundational law of the new nation. Of these, the Fourth Amendment was designed to protect the privacy of the individual and their home. This privacy was of such great magnitude that the Founders found placed it in the original ten declarations of rights that the people retained.

Today, the advance of modern technology stands at the threshold of violating the privacy enshrined in the founding documents of the United States. In a recent Supreme Court case, Kyllo v. United States, Justice Antonin Scalia commented that “It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology…The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy.”[3] The 21^st century has brought in regular use, technology that has the capacity to undermine the privacy guaranteed by the Fourth Amendment. Today, mobile phones are equipped with individual Global Positioning System (GPS) technology that allows users to use their phones as a mobile navigational device. Cars are outfitted with navigational units that help drivers travel without needing to use an atlas or other maps. The use of these devices by law enforcement in the goal of curtailing crime must be carefully checked to ensure that the Fourth Amendment is not violated. The real question is this: should “probable cause” be required for the law enforcement use of any GPS based device? This paper will evaluate the advancement of GPS device technology, its use by law enforcement, current Supreme Court precedent in light of the Fourth Amendment, and it will conclude with a commentary on Supreme Court precedent and recommendations for law enforcement use of GPS.

The Technology of the Global Positioning System (GPS)

The Global Positioning System (GPS) is a network of satellites that transmit location data to personal receivers on earth. The system was originally developed for the military for use in munitions targeting and unit locating during combat operations.[4] It is managed by the United States Air Force Space Command and has a total of twenty-four satellites in use with several backups that can be activated if needed.[5] These satellites orbit on six “equally-spaced orbital planes surrounding the Earth” at 11,000 miles above the surface of the Earth.[6] Each satellite transmits the position and orbital velocity of each satellite in a broadcast manner that can be received by an unlimited number of devices.[7] In this broadcast of data, there are two separate streams of locational information.[8] The first is military and the second is civilian.[9] Up until May of 2000, the United States Government intentionally riddled the civilian stream with random errors for national security reasons.[10] Receivers on the earth (mobile phone, automobile, or hand-held units, etc.) “listen” to the closest four GPS satellites and use the data provided by each satellite to quadrangulate the location of the receiver device, thus giving the user an exact location in the world.[11] The information provided is within one meter of accuracy.[12]

The GPS itself does not transmit an individual’s location. A recent commentary on GPS use notes that “unless the receiver is also outfitted with a wireless transmitter or recording device, only the receiver can calculate its latitude, longitude, altitude, direction, and speed.”[13] However, a receiver that is equipped with transmitting capabilities does track, record, and transmit an individual’s location. For example, a simple GPS hand-held receiver that merely provided an individual with their GPS coordinates would transmit no data outside of itself. However, mobile phones equipped with GPS overlay the GPS information with map data and use that data to provide users with advertisements and other services. So, the GPS itself does not ever transmit a user’s locational data; however, a receiver equipped with such capabilities does.

Today, GPS units are used almost every aspect of the modern technical and mobile world. GPS receivers are located in almost every new automobile in some shape or form. Vehicles made by General Motors come equipped with OnStar, a roadside assistance unit that uses GPS information to find drivers stranded on the road.[14] Drivers can also install services such as LoJack in their car that use GPS to prevent auto theft.[15] Both drivers and those not using a car can purchase GPS based navigational systems made by companies such as Garmin or TomTom. These units use the GPS information combined with map software to guide and direct users to specified locations.[16] Even mobile phones have GPS devices built into them. Phones such as the iPhone or the HTC Droid, among many others, use GPS for personal navigation, location services, or lost phone tracking.[17]^, [18]^, [19] GPS has fully pervaded American life. Individuals use GPS data on a daily basis for everything from navigation to finding the closest coffee shop. GPS use however, is not limited to individuals.

Law enforcement uses GPS on an extensive basis to enhance their abilities to catch criminals and curtail crime. Police officers have used GPS devices to track suspects and used that data to end criminal acts. In Fairfax County, Virginia in 2008, an individual was attacking women by “grabbing them from behind and sometimes punching and molesting them before running away.”[20] From prior criminal records, police knew that a felon that had served 17 years in prison for rape was living in the area of the attacks.[21] The officers placed a GPS device onto the man’s vehicle and tracked his movements. Officers caught him dragging a woman into the woods in Falls Church, Virginia and after his arrest, the attacks ended.[22] In another example of GPS tracking, New York police used a GPS receiver/transmitter to track an individual’s movements and used that evidence to charge the man with two burglaries.[23] Police in Los Angeles, California have even begun using GPS enabled darts to reduce the hazards associated with high-speed car chases.[24]^{, [25]} A dart is shot from specially designed gun at cars that are beginning a high-speed chase. Officers then remotely track the car until it runs out of gas. For the officers and the people of Los Angeles, it is a lot safer to use GPS devices to track a chase than have multiple cars traveling at high speeds through the city. There is no argument that the use of GPS devices can truly aid the effectiveness of the police in their work. However, the question at hand is not whether the police should be allowed to enhance their abilities using technology. Because of the ease, accuracy, and pervasive nature of GPS technology, the question lies in the realm of what legal constraints and checks law enforcement should be required to perform or prove prior to the use of such technology.

The prevalence of GPS today, as spread across the entire purview of digital devices, raises the possible law enforcement use of locational data provided by GPS receivers for tracking. This tracking raises Fourth Amendment concerns in both how the tracking is done and in the nature of the data itself. Tracking can be done in two major ways. First law enforcement can place a GPS receiver/transmitter on a personal vehicle and track the device itself. Officers would covertly install a receiver on a vehicle and then monitor the device’s transmissions of its location. Second, police could possibly gain third-party access to GPS enabled devices (phones, car navigation, etc.) and then use those personally owned devices to track personal or vehicular movement. If such access were granted, a company such as Verizon Wireless would give the police access that allowed them to simply follow where a specific phone traveled. As demonstrated above, the first is already in use.

The nature of GPS data and its constant coverage raises questions regarding the use of the data without a warrant. GPS data is accurate to within 1 meter of an individual’s actual location. The technology of the receivers has reduced in size to the point that a receiver/transmitter unit can be hidden in the undercarriage of a personal car with ease. Some receivers are as small as “2.56 by 1.7 by 1.1 inches” and weigh a mere 3.1 ounces.[26] They provide “24 hour per day global coverage. And is unaffected by “rain, snow, fog, or sand storms.”[27] The use of GPS tracking devices is the equivalent of having dozens of agents surrounding an individual to know their precise movements.

These two factors, access and the nature of the data, are the primary concerns in ensuring that proper Fourth Amendment privacy is protected when this technology is used by law enforcement. A detailed analysis of current Supreme Court precedent in regards to the Fourth Amendment will shed some light in this area.

Background of the Fourth Amendment

The Fourth Amendment was put into place to protect Americans from unreasonable searches and seizures. The specific text reads:

The right of the people to be secure in their persons, house, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[28]

 

The amendment puts into place “both a particularity and probable cause requirement upon all warrants that issue.”[29]^, [30] Under Supreme Court precedent in Johnson v. United States, the Court held that searches without a warrant are considered to be presumptively unconstitutional.[31] [32] The Court commented that:

The point of the Fourth Amendment which often is not grasped by zealous officers is not that it denies law enforcement the support of the usual inference which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate, instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity, and leave the people’s homes secure only in the discretion of police officers…When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policemen or government enforcement agent.[33]

 

Since any search made without a prior warrant is considered to be unconstitutional on its face, it is therefore necessary to determine what a “search” is. If a police officer’s actions are considered a “search” (such as affix a GPS tracking device to a vehicle) his actions are unconstitutional and the evidence gained from the device is inadmissible in a court of law. If it is not a “search” then the protections of the Fourth Amendment do not apply.

The fundamental definition of what is considered a “search” was laid down in 1967 in the seminal Fourth Amendment case of Katz v. United States.[34] Alison Smith, of the Congressional Research Service, comments: “At one time, the purpose of the Fourth Amendment was seen as a protection of people’s property rights against unlawful physical trespasses. However, it gradually came to be seen as a protection of something more…It translated into protecting an individual’s privacy not his personal property per se.”[35] In Katz, Katz was a gambler who was regularly making bets from a certain, public payphone. Federal Bureau of Investigation (FBI) agents attached a small listening device outside the phone booth and recorded six conversations. Using those recordings, Katz was convicted for public gambling on horse races. He appealed the decision. When the case reached the Supreme Court, the Court radically deterred from the prior decisions of Olmstead v. United States and Goldman v. United States.[36] The Court emphatically decided that the Fourth Amendment protected “people, not places.”[37] This decision was affirmed in subsequent Fourth Amendment cases and fully enshrined as Fourth Amendment doctrine.[38]

No longer was a “search” made only when something had been physically violated. Rather, a “search” was made when it violated a personal expectation of privacy from government intrusion. The Fourth Amendment protects “individual privacy against certain kinds of governmental intrusion.”[39] The Court’s opinion states: “what [an individual] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”[40] The decision was further clarified in Justice John Harlan’s concurring opinion.[41] Justice Harlan setup a two-part test to determine if an individual had a reasonable expectation of privacy and therefore should fall under Fourth Amendment protection.

The two-part test requires that for an individual to have a reasonable expectation of privacy he must have both a subjective and an objective expectation of privacy. Justice Harlan stated:

As the Court’s opinion states, “the Fourth Amendment protects people, not places.” The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a “place.” My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as “reasonable.”[42]

 

For a search to have been made, law enforcement officers must violate what the individual considers to be barriers he has personally erected to protect his privacy (subjective) and those barriers must be viewed by society as reasonable (objective).

A subjective expectation of privacy is simply an individual seeking to protect his actions, statements, papers, etc. from someone else. If an individual seeks to keep something private, then they meet the threshold of the subjective expectation. In United States v. Taborda, the 2^nd Circuit Court stated the phrase as where an individual “acted in such a way that it would have been reasonable for him to expect that he would not be observed.”[43] The first aspect of the test is easy to meet. It is the objective expectation of privacy that really determines what is private and what is not.

An objective expectation of privacy is an action that society willingly accepts as being something considered to be private. In her commentary on the Fourth Amendment, Renee Hutchins comments that “while the Court has devoted a larger share of its analysis to the second prong of the test, it has never explicitly defined the precise factors that render a subjective expectation objectively reasonable.”[44] An individual may stand in the middle of ten people in close proximity and attempt to hide his conversation by speaking with his hand over his mouth. But, if the people still hear what he is saying due to their close proximity, he does not have an objective expectation of privacy. The Court included this reasoning to ensure that anyone seeking to have evidence suppressed in court could not say “I intended my conversation to be private” and win. On the other hand, in Katz, the Court concluded that Katz’s closing of the door of the phone booth was something society was willing to accept as a reasonable expectation of privacy. The goal was to create a standard that would adapt as society and technology changed over time.

In further defining the Fourth Amendment, the Supreme Court’s decision in United States v. Knotts (1983) was the initial ruling dealing with a form of remote tracking by law enforcement.[45] In Knotts, with the consent of the seller, a beeper signal was installed inside a five-gallon can of chloroform. After Knotts purchased the chloroform, the police then tracked the vehicle he was driving using both visual surveillance and the beeper. Upon evasive maneuvers made by Knotts, the police ended the visual tail of the vehicle and relied exclusively upon the beeper to follow the suspect. Upon the arrival of the suspect at a remote cabin, the police used the location of the cabin (obtained by using the beeper) as evidence to get a warrant to search the building.[46] When tried, Knotts attempted to have the evidence gained by use of the beeper suppressed as a violation of his Fourth Amendment rights.[47]

In their decision, the Supreme Court held that the use of the beeper was constitutional. The Court stated:

The governmental surveillance conducted by means of the beeper in this case amounted principally to the following of an automobile on public streets and highways. We have commented more that once on the diminished expectation of privacy in an automobile: “One has a lesser expectation of privacy in a motor vehicle because its function is transportation, and it seldom serves as one’s residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view (internal quotations omitted).[48]

 

The Court’s primary reasoning rested on the reasoning that 1) a car is not a person’s home or a “repository of personal effects” and 2) “Nothing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them in this case…We have never equated police efficiency with unconstitutionality, and we decline to do so now.”[49] The police officers had used the beeper technology to gain access to information they would have been able to access on public roads and with their own naked eyes.

Second in the Court’s commentary on earlier forms of electronic tracking was the case of United States v. Karo in 1984.[50] Similar to Knotts, a beeper was placed, with the consent of the seller, into a can of ether. Karo purchased the can and the police tracked his movement via the beeper to a cabin. Again, similar to Knotts, the information acquired by the use of the beeper (the location of the cabin) was used to obtain a warrant for search of the building. Karo sued to have the information suppressed on the grounds that the police had used the beeper and violated his expectation of privacy.[51]

The Court ruled similar to Knotts in saying that no “search” or “seizure” occurred in the installation of a beeper because “the informant’s consent was sufficient to validate the installation. And the transfer of the beeper-laden can to Karo was neither a search nor a seizure, since it conveyed no information that Karo wished to keep private and did not interfere with anyone’s possessory interest in a meaningful way.”[52] However, the Court did rule that certain aspects of use of the beeper were unconstitutional. The beeper was monitored the entire time the individual was on his own private property. The Court concluded that “The monitoring of a beeper in a private residence, a location not opened to visual surveillance, violates the Fourth Amendment rights of those who have a justifiable interest in the privacy of the residence.”[53] The evidence seized while the beeper was inside the home was suppressed but there was still sufficient information to convict Karo based on what was gathered during the time the vehicle was on public roads. The Court drew a very clear line in the sand delineating that third-party access for beeper installation did not violate an expectation of privacy nor was monitoring of the beeper except when it was located on private property.

The final and most recent landmark Fourth Amendment case is the Kyllo v. United States (2001).[54] Police suspected that marijuana was being grown inside the home of Danny Lee Kyllo’s home. Using a thermal imaging device, the police scanned the exterior walls of the home and found a dramatic increase in heat in a particular area of the home. Indoor marijuana production requires intense heat lamps for the plants to grow. Based on a few additional pieces of information, a Federal judge issued a warrant authorizing the police to search the home.[55] Kyllo appealed his conviction and sought to have the evidence obtained through the thermal imaging device (the fact that there were extremely warm areas of the home) struck from evidence claiming that his Fourth Amendment rights had been violated.[56]

In giving the opinion of the Supreme Court, Justice Scalia argued that “visual observation is no “search” at all – perhaps in order to preserve somewhat more intact our doctrine that warrantless searches are presumptively unconstitutional.”[57] Yet, he concludes that the police action was not merely “observation.” He comments:

To withdraw protection of this minimum expectation [from homes] would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes search – at least where (as here) the technology in question is not in general public use.[58]

 

He further comments on the “quality” of data obtained by law enforcement saying “The Fourth Amendment’s protection of the home has never been tied to measurement of the quality or quantity of information obtained.”[59] Justice Scalia ruled that the use of thermal vision constituted the “seeing” into the home and thus an intrusion into the most private areas of life.

In reviewing the evolution of the Supreme Court precedent on the Fourth Amendment as outlined above, a framework of operation can be obtained for law enforcement use of GPS or other “sense-enhancing” devices. The Federal Law Enforcement Training Center’s (FLETC) GPS Tracking in a Post-Maynard World concisely summarizes the law:

Viewed together, Katz, Knotts, and Karo gave clear direction to investigators. Simply put, the installation of a beeper or tracking device on the exterior of a car that does not require a power source from the interior of the vehicle does not implicate the Fourth Amendment. Similarly, the Fourth Amendment does not require a warrant for law enforcement to use such devices to monitor the location of the target vehicle while it is located in a public place. Where, however, the target vehicle moves from a public place into a private place, the information sent by the transmitter to the tracking is subject to the Fourth Amendment’s warrant requirement. Thus, unless that information is acquired with a warrant, it will be subject to suppression.[60]

 

The training center goes on to conclude that the GPS is the modern day equivalent of the “beeper” used in Knotts and Karo. It states that “Though GPS unquestionably provides law enforcement with much more precise information than the old beepers, it is essentially the same type of information: the location of a transmitting device and thereby the location of the vehicle or other host item containing that device.”[61]

These guidelines have been in place as the modern technical world has shifted. Law enforcement has used these guidelines to ensure their actions are within the law. However, the changes in the technology combined with the pervasiveness and ease of use of GPS has challenged the Fourth Amendment doctrine of Knotts and Karo. As commented in the American Bar Review, “None of these [Knotts, Karo, or Kyllo], squarely addresses the multiplicity of facts and potential privacy interest that warrantless GPS-enabled surveillance cases spawn.”[62] At the forefront of this challenge is the recent Supreme Court case of Antoine Jones v. United States (2011).[63]

Case Example

 

Jones v. United States provides a recent example of GPS tracking by law enforcement. The following will examine the respective arguments of both the United States Government and the lawyers representing Antoine Jones. While the case only addresses a physical installation of GPS devices, the following analysis of the argumentation will address the additional instances of GPS tracking via mobile phones or vehicular navigation systems.

In Jones v. United States, Antoine Jones and Lawrence Maynard were convicted of “conspiracy to distribute and to possess with intent to distribute five kilograms or more of cocaine and 50 grams or more of cocaine base, in violation of 21 U.S.C § 841 and §846.”[64] In 2004, a joint task force between the FBI and the D.C. Metropolitan Police Department began to investigate Jones and Maynard for narcotics violations. In September 2005, the police obtained a warrant from a federal judge in D.C. to attach a GPS device to Jones’ Jeep Grand Cherokee for ninety days. The warrant gave the police ten days to install the GPS device and limited their installation to the geographic boundaries of the District of Columbia. The police covertly installed the device eleven days after the warrant was issued and installed the device while the Jeep was parked in Maryland. The device only turned on and transmitted date to the police officers if the vehicle was moving and it only provided information on the location of the vehicle. The GPS device was accurate to within 50 to 100 feet of the vehicle’s actual location. It sent locational data to the law enforcement officers for four weeks.[65] During the initial trial, Jones’ lawyers moved to suppress the data garnered from the GPS device because it constituted a “search” and “seizure.”[66]

Analysis of Argumentation

Jones v. United States provides a good example of the nature of the debate over the proper law enforcement use of GPS devices as a tracking measure. Aside from the law enforcement officer’s misapplication of the warrant, which caused the case in the first place, their actions were within what is considered to be proper Fourth Amendment interpretation by the FLETC. The question that remains to be answered is this: what is the proper law enforcement use of GPS technology?

Since the briefs submitted to the Supreme Court of the United States represent the best legal analysis on a given situation and equally represent both sides of the issue, an analysis of the argumentation given before the Supreme Court will reveal insight into the determination that should be made regarding the case at hand. The following sections will compare the government’s arguments with those of the petitioner, Antoine Jones, and other commentary. In sum, the argumentation will reflect the following positions: 1) that the nature of GPS data is inherently private; 2) that the government’s actions of installing a GPS device on a private vehicle is an act of trespass; and 3) Third-party access is now no longer limited and should require a warrant.

During argumentation, the United States Government presented several main points in defense of the actions of the law enforcement officers. First, that the Court decided in Katz that “the privacy interests safeguarded by the Fourth Amendment do not extend to matters ‘knowingly exposed to the public’” and thus the government argues that police officers do not conduct a “search” when they observe matters conducted in the open which would be seen by anyone.[67] They point out that the data gathered over the month of surveillance was something that officers “could have observed without the use of the beeper.”[68] To apply the “reasoning that there is some sort of threshold where the data garnered is past the “likelihood” limit keyed to hypothetical actions by members of the public” is nonsensical. All “information that has been exposed to public view remains public without regard to the likelihood that any one person would acquire all of the information.”[69] Therefore, the use of a sense-enhancing device on data that is publically available does not transform police actions into a “search” and thus fall under Fourth Amendment protections.[70] These arguments are a summary of the allowances for beeper technology granted in both Knotts and Karo. As detailed earlier, these cases give authorization for monitoring individuals when they are in public.

The lawyers representing Jones counter the government’s initial argument by claiming that GPS data, more particularly its precision, is a type of data that is not exposed to the naked eye like the one-time location of a vehicle. An individual “traveling on public thoroughfares knowingly exposes himself to visual observation, but he does not knowingly offer satellite-calculated GPS data to public viewing.”[71] A police officer viewing a car relies on personal memory, and a photograph captures a moment in time, and a video camera captures a few moments in time. GPS, however, has purview to constant and detailed information that is not possible with human eyes, photography, or video cameras.[72] Additionally, long-term use of GPS, allowing short-term usage, is a type of data that is constitutionally protected under the Fourth Amendment. Data showing movements over a long-term is inherently private.[73] In Knotts, a single journey with the police actively following the individual was accounted as constitutional. But, in this situation, the car was tracked for an entire month and the “likelihood a stranger would observe all those movements is not just remote, it is essentially nil.”[74]

Jones’s counsel is right in this regard. Arguing that beeper technology and GPS technology are equivalent makes the distinction based on the fact that any sort of tracking of movements in public is allowable. This type of distinction refuses to examine the fundamental nature of tracking and the type of data that is received while using a beeper or GPS device to track an individual. Therefore, the distinction for the constitutionality of tracking needs to be made on the basis of what data is garnered and how that data can be used in today’s modern world.

GPS data is accurate to within one meter of an individual or a vehicle’s location. A GPS unit can monitor the movements of whatever it is attached to and then transmits that data to a receiver of some sort. The data is recorded and can be used to create a coordinate chart of the target’s movements. This chart can then be overlaid onto a map (even a three-dimensional map) of the area and thus convey with very detailed precision the complete movements of whatever the GPS device was attached to. In Jones’s appeal to the D.C Circuit Court, the court agreed with the pervasive nature of GPS surveillance stating that “[p]rolonged surveillance, reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and he does ensemble.”[75] In Katz, an individual must have a subjective and objective expectation of privacy. In that case the Court determined that an individual had privacy when they were located behind a mere public telephone booth door. Lenese Herbert, in the American Bar Review comments that “In order to invoke Fourth Amendment standing, there is no requirement that one act in complete and total secrecy.”[76] No individual knowingly releases every detailed movement of their lives to the public domain.[77] They are present in the public domain, but their collective movements over a period of time, be it one day or an entire month, are not something publically released.[78] Indeed, the data garnered by GPS has been classified by some as being extrasensory because it operates as an ultravigilant replacement for human surveillance.[79] The nature of data garnered by GPS is radically different from a beeper and when combined with modern mapping technology it creates a picture of an individual’s life that is so detailed and so invasive that it must fall under Fourth Amendment protection. The amicus filing by the Cato Institution in United States v. Jones aptly summarizes this point by saying that the Court should find “that a ‘search’ has occurred when technological enhancement takes what the government observes far beyond what is ordinarily accessible.”[80] If “seeing” into the home using a thermal imaging device was an invasion of privacy, as seen in Kyllo, the ability to see every movement of an individual must also be an invasion of privacy. A sum totality of movements is the life of a person, not simply their home.

Additionally, in Karo, the information regarding the movements of the beeper while it was within a private home was struck from evidence because it violated the Fourth Amendment. Yet, the officers still knew where the beeper was located. If tracking is allowed only on public roads, when an individual turns into their home, the law enforcement still know where they are located. As a target approaches their home, law enforcement have two choices: 1) send an actual agent watch the home until the suspect leaves to re-activate the monitoring or 2) monitor constantly with the GPS device and simply delete the information later. Regardless of how the privacy is of the home is “protected,” merely “deleting” the information obtained by a GPS while it is on private property or turning it off, creates a “hole” that still determines where an individual was located. Such a “safeguard” is no safeguard of an individual’s privacy at all.

Second, the government argued that law enforcement has

 

…not abused GPS technology. They contend that no evidence exists of widespread, suspicion-less GPS monitoring, and practical considerations make that prospect remote. As this Court has previously indicated, if “dragnet” use of tracking technology occurs in the future, its constitutional implications can be addressed at that time.[81]

 

Since there is no history of misuse, the Government argues that there is no need for the Court to make a blanket statement in regards to the use of GPS technology. Additionally, the government concludes that, even if installing the device was a search or a seizure, the actions taken by the officers were “…reasonable under the Fourth Amendment.”[82] The officers’ actions were used to garner information in order to develop probable cause so a warrant could be obtained. The use of the GPS was the most reasonable and least intrusive manner to conduce surveillance when the officers had only “reasonable suspicion” of the criminal behavior of Jones and Lawrence.[83]

Jones’s counsel does not directly answer this argument. However, there are two answers to the Government’s assertion. First, the lack of widespread use of a technique does not add constitutionality to the act itself. The Government seems to erect a straw-man argument by raising the fact that the Court stated it would address “dragnet” behavior when it is occurring. The Govern is right, police are not using this technology in a “dragnet” type of manner. Yet, the danger posed comes not from the amount of use, but when it is used, even if that use is only once. The case was not about dragnet police behavior. The case is discussing the fundamental nature of the use of GPS as a tracking tool by law enforcement and if that data gained is a “search” of an individual’s private movements.

Second, to conclude that the officer’s actions were valid because of the balance they struck between violating the man’s privacy and furthering the objectives of law enforcement strikes a line that does not ask if alternatives could have been explored in determining if a warrant was needed. The officers originally had a warrant. They had enough information to receive the approval of a third-party magistrate to conduct GPS surveillance. GPS is surely not the “least intrusive manner” and using GPS to develop probable cause is too far over the line in investigation.

Third, the government argued that the attaching of a GPS device to the undercarriage of a vehicle, independent of the tracking issues of constitutionality, was not a violation of the Fourth Amendment. They state that “attaching a tracking device to a vehicle’s exterior is not a search because the attachment reveals no information at all, and certainly no private information.”[84] Since the installation of the GPS device did not draw upon the power of the car, but had its own battery based power, the device did not “seize” anything from the car as well.[85] The government holds that the GPS device merely “…involved a technical trespass on the space occupied by the device, but that is insufficient to amount to a seizure.”[86]

Jones’s counsel responded to the physical installation by leveraging basic property right law in two ways. First, they argue that the government’s installation of the GPS device “physically intruded onto Jones’s private property without his knowledge or consent.”[87] Their argument uses the Supreme Court case Silverman v. United States to argue that the Fourth Amendment protects “property as well as privacy.”[88] In Silverman, the Court established that physical trespass on private property to engage in a search was a violation of the Fourth Amendment.[89] Jones’s lawyers argue that, just as in Silverman, “usurpation of private property is a search” and aides in defining what society would agree is a reasonable expectation of privacy (as found in Katz).[90] In Jones’s situation, law enforcement officers “secretly installed a GPS device onto the underbody of Jones’s car, where he was exceedingly unlikely to detect the intrusion onto, and continuing use of, his property for the government’s own surveillance ends.”[91] Jones’s own private vehicle was used by the government to convey GPS location data to the police. In essence, law enforcement was trespassing on his vehicle to search his vehicle. As support, Jones’s lawyers also argue that the actions of the government would be considered a crime if done by a citizen. They comment that “A private individual’s surreptitious installation of a GPS tracker onto the property of another to monitor the owner’s movements is not only a trespass to chattels, but can form the basis for criminal liability under the laws of various states.”[92] Basic property rights law would bar any other citizen from attaching a GPS device to another citizen or their property.

Second, Jones’s counsel contends that the physical installation of the device constitutes a Fourth Amendment “seizure” that is protected under the Fourth Amendment. The installation of the GPS “interfered in Jones’s possessory right to exclude others from using his vehicle for their own ends.”[93] Interference is not limited to damage or use of the property. Interference of a possessory interest in a vehicle can occur if a bumper sticker was installed instead of a GPS device. Either way, a possessory interest lies over the decision to use a piece of property. [94] Citing United States v. Jacobsen, Jones’s lawyers conclude that “a seizure of property occurs when ‘there is some meaningful interference with an individual’s possessory interests’ – ‘however brief’ the interference may be.”[95]

Jones’s lawyers raise a valid point in regards to the physical installation of the GPS device on a private vehicle. The Cato amicus filing concurs with their opinion stating that “the conversion of the car to the government’s purposes, and the surveillance conducted with that converted car, constitute an unreasonable search and seizure in the absence of a valid warrant.”[96] A private vehicle or even a personal mobile phone, whether it is located in public or not, is an “effect” that is covered under the Fourth Amendment. The outside of the car is visible, but its visibility does not lend it to being a public place. A person owns their mobile phone and the GPS receiver inside. Lord Camden, in the landmark British search case Entick v. Carrington (1765), clearly delineated the role of property and the fundamental nature of search and seizure protection.[97] He comments that “[t]he great end, for which men entered into society, was to secure their property.”[98] Indeed, the great English philosopher, John Locke, stated as much in his declaration that each man is entitled to his life, liberty, and property.[99] The Fourth Amendment language is clear: “The right of the people to be secure in their persons, house, papers, and effects, against unreasonable searches and seizures…”[100] is without question. “Without the right to reasonably exclude, possessory interests safeguarding the right to be secure would be largely illusory.”[101] This exclusionary right is applicable whether an individual has a car or a mobile phone that is being used for locating and tracking. Every person has the right of excluding others from their property. The only exception in the United States was the warrant process that was created by the Fourth Amendment.

In James Madison’s commentary on property, he reflects that the “term [property] in its particular application means ‘that dominion which one man claims exercises over the external things of the world, in exclusion of every other individual.’”[102] A man’s property is something that he has exclusive rights and control over. For a Government agent, in the pursuit of crime, to violate such boundaries, he willfully takes from a man the rights he has on that property. Madison further comments that “Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses.”[103] The Government’s use of an individual’s property, be it car or a mobile phone, to track that individual is an expressed violation of the possessory private property right of the individual.

Jones’s lawyers also address the ease of access and low cost nature of GPS surveillance. GPS surveillance is a “grave and novel threat to the personal privacy and security of individuals.” Unlike other forms of surveillance, “GPS technology empowers the government to engage in indiscriminate and perpetual monitoring of an individual’s movements.”[104] At extremely low costs, the government is able to capture “the whole of a person’s progress through the world, into both public and private spatial spheres…over lengthy periods possibly limited only by the need to change the transmitting unit’s batteries.”[105] A GPS receiver “indiscriminately generates and stores GPS data about all of a person’s movements for as long as the device is left in place.”[106] The ease of use and the precision of the data fundamentally destroys the basic essence of the Fourth Amendment: to protect the privacy of individual and prevent illegitimate police intrusion.[107]

The Government did not address the ease of use aspects of the GPS tracking and the Jones case is limited in scope concerning third-party access to GPS devices by the Government. Both of these are linked, however, in that the third-party makes the ease of use of GPS even simpler. Traditional constitutional understanding is that if a person reveals information to a third-party, that information is not protected if the third-party releases it.[108] However, in the technical age, all data on the Internet travels through someone’s servers. That reasoning begins to crumble if it is extended to mean that individuals have absolutely no expectation of privacy online. The same is true of all phones and GPS navigation devices. If the Government were to get third-party access to the mobile phone carrier networks such as Verizon and AT&T or to a vehicle navigation system such as OnStar, their access to the locational data of requested devices would be as simple as a few clicks on a computer. Even more intrusive than vehicle monitoring is phone locational monitoring. A mobile phone is designed to be on a person at all times. Garnering GPS information from a phone would be even more invasive and detailed than that of a person’s vehicle. Either manner could be easily if corporations were to grant that access to the Government. In the cases of Karo and Knotts, the Supreme Court upheld the use of third-party access for tracking. Individual third-party informants were sought out to provide the necessary access for the installation of the tracking devices and then, after the item was purchased by the seller, the law enforcement followed the beeper. If a direct application of the decisions of Karo and Knotts is applied to the potential access that could be granted by mobile carriers or navigational services, the ease and access to the location of an individual would be almost unlimited.

Prior to the development of GPS tracking devices, law enforcement would have to use multiple agents and a significant allocation of resources to follow and track an individual to obtain the level of detail and precision that can now be gained using GPS. Additionally, due to the space and limitations of buildings, agents would be unable to monitor a person’s inside locations such as their workplace. These physical limitations on the actions of law enforcement officers served, in effect, as a protection of the privacy of a citizen by ensuring that such resource allocation was only used when needed. GPS removes these barriers and creates a tool for law enforcement use that does not require the allocation of manpower. Third-party access to mobile carriers would grant law enforcement unrestrained access to locations of whomever they wished to monitor. Knotts and Karo were individual instances. Gaining access to the entirety of a service provider’s network would be expansive and near universal.

Conclusion

Under today’s legal framework, the burden for proving an expectation of privacy rests with the individual. Katz requires an individual to prove that they meet both tests of having a subjective and objective expectation of privacy. In the cases of Knotts, Karo, and, Kyllo, the individuals in question were required to prove that the Government had violated the expectation of privacy. In each of those cases, the Court set some sort of barrier that stated what was and was not private. Yet, the language of the Fourth Amendment seems to indicate, by mandating that law enforcement apply for a warrant, that the actual burden of proof should be placed on the government or law enforcement agents and not the citizen. In a nation with a Constitution that granted the government authority, it is backwards to force the individual citizens to prove that the government has invaded a retained right. Katz was correct to determine that privacy is not simply limited to the inside of the home, but can also be expected by individuals in certain situations. The proof that those situations are not private however, should be laid on the Government.

Privacy is something that every individual has. In an article published by The Cato Institute, author Jim Harper comments on the nature of privacy saying:

Privacy is a state of affairs or condition having to do with the amount of personal information about individuals that is known to others. People maintain privacy by controlling who receives information about them and on what terms.”[109]

 

However, the Government still has both a duty and an obligation to protect the people. To this end, some privacy must be sacrificed for the law enforcement agents to be able to do their job properly. Harper comments:

The legal environment determines whether people have the power to control information about themselves. Law has dual, conflicting effects on privacy: Much law protects the privacy-enhancing decisions people make. Other laws undermine individuals’ power to control information.”[110]

 

Privacy torts law, as also outlined by Jones’s lawyers, is a baseline example of what is protected and what is not. Among these definitions is “intrusion upon seclusion or solitude, or into private affairs.”[111] Private affairs are exactly what are obtained by GPS data when overlaid onto modern day mapping technology. Technology has removed an aspect of privacy that was present up until the development of GPS locating.

There will always be a “constant tension between surveillance powers sought by law enforcement and the privacy-protecting rights enjoyed by all Americans. The rules laid down by the Constitution, chiefly in the Fourth Amendment, demarcate the line between appropriate and inappropriate surveillance.”[112] All Americans and law enforcement live under the law. That law, at its base, is the Constitution. In the Constitution, the Founders enshrined the rights that were reserved by the people of the United States. For breaches of such rights, a warrant was dictated to be the defense of the people. GPS data is a fundamentally invasive mechanism that can be used to great effect by law enforcement. Great power comes with great responsibility and the warrant process ensures that responsibility. When GPS is used to locate and track individuals a warrant should be obtained from a neutral third magistrate to ensure that the protections established by the Constitution are not violated.

Endnotes

[1] Brutus, The Anti-Federalist Writings of the Melancton Smith Circle, ed. Michael Zuckert and Derek Webb (Indianapolis: Liberty Fund, 2009), 179-85.