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Warrantless GPS Tracking Is Legal, Says WI Court
Posted by
Soulskill
on Sun May 10, 2009 12:05 PM
from the it's-one-o'clock-do-you-know-where-your-citizens-are dept.
from the it's-one-o'clock-do-you-know-where-your-citizens-are dept.
PL/SQL Guy writes "A Wisconsin appeals court ruled Thursday that police can attach GPS trackers to cars to secretly track anybody's movements without obtaining search warrants. As the law currently stands, the court said police can mount GPS on cars to track people without violating their constitutional rights — even if the drivers aren't suspects. Officers do not need to get warrants beforehand because GPS tracking does not involve a search or a seizure, wrote Madison Judge Paul Lundsten."
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Submission: Warrantless GPS Tracking Is Legal, Says Court by Anonymous Coward
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News: NY Court Says Police Can't Track Suspect With GPS 414 comments
SoundGuyNoise sends in a story that brings into relief just how unsettled is the question of whether police can use GPS to track suspects without a warrant. Just a couple of days ago a Wisconsin appeals court ruled that such tracking is OK; and today an appeals court in New York reached the opposite conclusion. "It was wrong for a police investigator to slap a GPS tracking device under a defendant's van to track his movements, the state's top court ruled today. A sharply divided NY Court of Appeals, in a 4-3 decision, reversed the burglary conviction of defendant Scott Weaver, 41, of Watervliet. Four years ago, State Police tracked Weaver over 65 days in connection with the burglary investigation."
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This is why (Score:5, Insightful)
Re:This is why (Score:5, Insightful)
Be careful what you ask for. You just might get it.
On Slashdot, you're asking for stronger privacy protections written into the laws, so that the level of privacy and liberty you enjoyed in your childhood remains relatively constant. Citizens using VOIP instead of an analog phone for voice communications? "Sorry, uppity government! We'd like a law that reminds you that you should need a warrant to tap that too."
In Washington, those exact same words mean that the laws should enable the development of a surveillance network so pervasive that it would have given Orwell nightmares. Citizens using VOIP instead of analog phones for voice communications? "Sorry, uppity citizen! Not until we pass a law requiring a built-in backdoor."
We asked for a government that listened to its citizens, and now we've got one. Let's not make that mistake twice by asking for surveillance laws that keep up with game-changing technological breakthroughs.
Parent
Perfect! (Score:5, Funny)
That means I can attach GPS devices to police cars! Never again will I get a ticket while driving through the People's Republic of Wisconsin!
Re:Perfect! (Score:5, Insightful)
And then let's see how long it takes for them to change the law.
Parent
Re:Perfect! (Score:5, Insightful)
I'm note sure if you meant police (as per GP) or politician, but okay... so far so good, seems to be legal, all that. At least as long as you're a cop.
I'm guessing there's laws against private citizens attaching random item X to other person's property Y.
and there's definitely all sorts of laws against that one.
It's a cute thought-experiment, bound to get you all sorts of populistic "YEA!"-voters, and might even be used to demonstrate the inequality between what some people (such as law enforcement officers, licenses private investigators, licensed bounty hunters, etc.) can do and others (joe schmoe) can't do, but fails to be realistic.
That said - go for it, I'd love to see what happens, the media attention, all that.. I just hope it doesn't end badly for you.
Parent
Re:Perfect! (Score:5, Insightful)
Parent
Re:Perfect! (Score:5, Insightful)
No, you can't. There are probably laws out there that prevent you from tampering with police cars. Police officers, in the course of an investigation, are allowed to do things that citizens cannot, such as pulling someone over or patting them down.
The entire problem here is that the state hasn't passed any laws regulating the conduct. The court only ruled that there was no violation of the Fourth Amendment here, which restricts SEARCH and SEIZURE. It would be hard to argue that putting a GPS unit on a car is either a search (you don't see anything in the car, etc.) or a seizure (such as impounding the car). In fact, the decision starts off by inviting the legislature to address the issue. States are allowed to regulate even if there isn't a constitutional bar to an action.
Parent
Re:Perfect! (Score:5, Insightful)
One more thing... is it legal for you to tail a police officer? I guess that would be the deciding factor, because the argument seems to be that a police officer could tail anyone without a warrant, therefore there is no expectation of privacy and using GPS to track the movements is perfectly legal.
Parent
True, but ... (Score:5, Interesting)
Re:True, but ... (Score:5, Interesting)
Much more fun to call the bomb squad.
1 Cop putting $1k GPS tracker on your vehicle, $50.
6 man EOD team response, more like $10k. What are they going to do, NOT respond when you call about a potential bomb on your car?
Then keep the tracker if you can(just remove the batteries).
Otherwise, if you can get an excuse, visit a military base during an exercise where they do a search. Bring a book. It might take a while. I figure 50-50 they end up blowing it up. Also fun - they'll probably terminate the exercise.
Parent
Re:True, but ... (Score:5, Insightful)
6 man EOD team response, more like $10k. What are they going to do, NOT respond when you call about a potential bomb on your car?
No, they'll surround your car with sandbags and water barriers and blow it up.
It pays to think these things through.
Parent
Re:True, but ... (Score:5, Funny)
they'll surround your car with sandbags and water barriers and blow it up.
Did the bomb squad get replaced by the Mythbusters?
Parent
Seems reasonable (Score:5, Insightful)
If it's only vehicle location track, how is this different than having the police tail the vehicle or follow it via helicopter, etc. This seems like a lower-cost mechanism for doing the same thing. Is there more to it than that?
Re:Seems reasonable (Score:5, Insightful)
There's a saying that goes, "Quantity has a quality all its own."
Tracking a vehicle by having a live officer tail it, or using a helicopter, takes significant resources and effort. Using a GPS device makes that job much, much easier. So yes, it saves resources and effort - but what if it makes it too effortless?
Perhaps the logic of why the police don't need a warrant to tail your car is because they can't possibly tail everyone's car all the time, and tailing a car represents a significant investment of effort on their part - which they are unlikely to do without reason. On the other hand, if it's as easy as slapping on a GPS device, the police might be much more likely to track cars without only minimal reason.
Parent
Re:Seems reasonable (Score:5, Insightful)
Probably the fact that, as private citizens, we'd be arrested if we were trying the same strategy on police cars. We are allowed to follow a policeman walking down the street, right?
There's also the fact that the GPS device would be attached to our property, which seems to me like a pretty significant change. A cop could put your home under surveillance, but could they drill holes into your siding to attach the cameras?
Oh well, that's what we get in a country that has no clear provisions for a right to privacy.
Parent
Bill of Rights (Score:5, Insightful)
Re:Bill of Rights (Score:5, Insightful)
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New law? (Score:5, Interesting)
Re:New law? (Score:4, Interesting)
The one interesting point in the article was the statement that the guys driveway was public and therefore the police were at liberty to attach the device to his car there.
Why is his driveway public? I would have thought he would have owned the land up to the boundary stated on his property deeds and that would include his driveway, perhaps his driveway needs to be signed private no public access.
Parent
An interesting question (Score:5, Insightful)
On the one hand, you've got the theory that this is analogous to assigning an officer to watch and tail a suspect's car, which is perfectly legal without a warrant.
On the other hand, you have, for example, things like Kyllo v. United States, where using thermal imaging equipment was treated as a search even though ordinary visual observation from off the property is not.
I suspect a higher court would rule that GPS devices are more common in civilian use than thermal imaging, and that when driving your car in public you have no reasonable expectation that your movement will be unobserved, and so rule that this court got it right, there is no Fourth Amendment violation.
Re:An interesting question (Score:5, Insightful)
I don't think it makes any sense. The police can't just install a camera on my lawn to watch the house. They should not be able install something on my car either. Its not the same as a tail operation at all. All I can say is that the police have no reasonable expectation of getting their GPS back since they are obviously disposing of it by leaving in on my property.
Parent
Re:An interesting question (Score:4, Insightful)
Yeah, but the reason they can't put a camera on your lawn isn't the Fourth Amendment. They can put the camera on public property, or on a neighbor's property with their permission, to observe your property. While putting the GPS on your car might be illegal for other reasons, it isn't obvious that it's a violation of the Fourth Amendment.
Parent
Cool (Score:4, Insightful)
Not a meaningfull decision (Score:5, Interesting)
Not everyone agrees (Score:5, Insightful)
From August 14, 2008 - http://www.insidetech.com/news/articles/2833-police-planting-gps-trackers-on-cars-without-warrants [insidetech.com]
Privacy advocates are shocked. They say that by monitoring the movements of people, many of which are likely innocent, police departments across the country are committing a Big Brother-esque invasion of privacy. And one state Supreme Court is on their side. The Washington State Supreme Court ruled that a warrant must be obtained to justify such invasions of privacy.
However, other state supreme courts - including New York, Wisconsin and Maryland, and the U.S. Court of Appeals for the 7th Circuit in Chicago - have declared that warrants are not needed.
First - way to go, State of Washington.
Next, it's not cut and dried, legally. From TFA:
Sveum, 41, argued the tracking violated his Fourth Amendment protection against unreasonable search and seizure. He argued the device followed him into areas out of public view, such as his garage.
The court disagreed. The tracking did not violate constitutional protections because the device only gave police information that could have been obtained through visual surveillance, Lundsten wrote.
Even though the device followed Sveum's car to private places, an officer tracking Sveum could have seen when his car entered or exited a garage, Lundsten reasoned. Attaching the device was not a violation, he wrote, because Sveum's driveway is a public place.
"We discern no privacy interest protected by the Fourth Amendment that is invaded when police attach a device to the outside of a vehicle, as long as the information obtained is the same as could be gained by the use of other techniques that do not require a warrant," he wrote.
Although police obtained a warrant in this case, it wasn't needed, he added.
Larry Dupuis, legal director of the ACLU of Wisconsin, said using GPS to track someone's car goes beyond observing them in public and should require a warrant.
"The idea that you can go and attach anything you want to somebody else's property without any court supervision, that's wrong," he said. "Without a warrant, they can do this on anybody they want."
So, what the real issue? Surveillance? Like it or not, that's legal. A cop can follow you all day long, so far as I know, as long as it doesn't amount to what a judge would call harassment. (That said, a judge's threshold and mine are probably quite different.)
Or is the real issue as the ACLU says, the attachment of a (police) device to property without court supervision?
I'm going with the ACLU on this one. Bond used a homer(*) 45 years ago in Goldfinger, and that was cool - or so we thought, because the of the target. But when I think now that the pursuer had a license to kill - I wonder if the future shouldn't be protected very, very carefully.
(* - Yep, they called it a homer in the movie. Nonetheless, cue Simpsons' jokes in ...3...2...)
Slippery slope, where's my jammer? (Score:4, Insightful)
Letter vs Intent, possible future loopholes. (Score:4, Insightful)
Modern tort law states.
Intrusion upon seclusion occurs when a perpetrator intentionally intrudes, physically, electronically, or otherwise, upon the private space, solitude, or seclusion of a person, or the private affairs or concerns of a person, by use of the perpetrator's physical senses or by electronic device or devices to oversee or overhear the person's private affairs, or by some other form of investigation, examination, or observation intrude upon a person's private matters if the intrusion would be highly offensive to a reasonable person.
Unless this does not apply to LEO...
In theory you could expand this ruling to include monitoring of a persons latptop as long as they where not at home, to view connections made but not the actual communication, perhaps extending to his communication. Or even extended to snooping any wireless communication that can be received in a public place, even using basic encryption that is known to be compromised ie wep etc. (read below)
The argument which is kinda valid, is that the information of placing a tracking device can be obtained by following the person, hence the argument that it tracked him into a non private place IE his garage, while in theory a violation of privacy is still info that could be obtained visually from public view.
To me this appears to be spirit vs letter of the law issue. The letter of the law does make this type of tracking legal, but is that really the Spirit of the Law... I can see lots of loopholes extending from this ruling.
Wrong Amendment. It's Due Process - 5th Amendment. (Score:5, Interesting)
Since the police are using his own property (the vehicle) for a public purpose (the tracking/investigation), they need at least probable cause and more likely a warrant to satisfy both procedural and substantive due process. If you read the article, you should take notice that this was essentially the argument that the ACLU spokesperson made without explicitly mentioning the 5th Amendment.
There's also an "unreasonable interference" due process argument.
Unfortunately, failing to raise the appropriate argument in the lower court may be construed as a waiver unless the defendant can demonstrate incompetent council.
'Poor (evil stalker) guy is probably screwed.
Re:But... (Score:5, Interesting)
How can warrantless GPS tracking be legal while warrantless car searching is illegal.
Police don't need a warrant to follow a car, and in my opinion, GPS tracking is more akin to tailing a car than searching through it. I'm not thrilled by this ruling, but it doesn't seem blatantly unconstitutional.
Parent
Re:But... (Score:5, Interesting)
So when/if I find such a device on my car it belongs to me doesn't it? And I'm not giving it back. And I'm not paying any bill they send me.
Parent
Re:But... (Score:5, Funny)
I've got a better idea: demand to see a warrant to search the car when they come back to get it.
Parent
Re:But... (Score:5, Insightful)
If this is legal for the police, I presume it is legal for anyone else who wishes to track someone. So, with that thought, here is something great for valentine's day: lingerie equipped with GPS tracking [dailymail.co.uk]. The "boyfriend" version is bound to be more popular because of the strategically placed bulge.
Parent
Re:But... (Score:5, Insightful)
Parent
Re:But... (Score:5, Interesting)
Or better yet, putting GPS on police cars.
This is actually a very good idea. With all these invasions of privacy imposed on citizens, the police should be subjected to such surveillance as well. How about civilian squads monitoring the movements and actions of police units? Think of it as a kind of inverted neighbourhood watch. Whenever a cop roughs someone up, a police-watcher would be there with a camera to put it all on tape. Try to negate that in court!
Parent
Re:But... (Score:5, Informative)
NO.
The right to free association also imbues privacy of that association. Such tracking without probable cause violates privacy, free speech, due process, and is high in calories.
Police have a right to follow me, as I have a right to make it difficult for them to do so without probable cause. My presence is my business, and not theirs.
Parent
Re:But... (Score:5, Insightful)
Parent
Re:But... (Score:5, Interesting)
You'd think video evidence would be enough to expose and convict police officers on a power trip. But a look at the Robert Dziekanski case [wikipedia.org] that many Canadians have been following for the past year and a half shows otherwise. There is a video of the incident [youtube.com] that has been made public by a witness at the scene. Immediately after the incident, the RCMP made multiple statements that were blatantly inconsistent with the video evidence (e.g., it was originally claimed that Dziekanski kept throwing objects around after the RCMP arrived, which was conclusively shown to be false by the video.) and testimony from other emergency response personnel (e.g., the RCMP claimed that an officer was properly monitoring Dziekanski's vitals until medical help arrived. It turned out that the officer in question did not renew his expired first aid certification, and a fireman later testified that the RCMP officers barred him from any attempt to check Dziekanski's vitals.). The Crown prosecutors opted to not pursue criminal charges related to the death of Robert Dziekanski. There is an inquiry investigating the circumstances in the case [wikipedia.org] that is currently underway, but the prosecutors have thus far maintained that there is no reasonable prospect of conviction. In fact, the RCMP threatened not to participate in the inquiry until the Crown decided whether or not to pursue criminal charges.
Of course, the whole situation has not been resolved yet, as the judge overseeing the inquiry may be able to make recommendations based on his findings. But this situation has left many Canadians with very shaky feelings about the RCMP force as a whole.
And to drive the point home even further: They don't have to negate video evidence in court if they can keep it out of court.
Parent
Re:But... (Score:5, Insightful)
So when/if I find such a device on my car it belongs to me doesn't it? And I'm not giving it back. And I'm not paying any bill they send me.
If I find such a device on my car, not only shall I not return it nor pay for it I shall feel free to destroy it, as I did not put it there, and do not want it there.
Parent
Re:But... (Score:5, Funny)
Better yet, stick it on a truck, preferably one traveling over the road; or leave it on a city bus or subway.
I can thin of even more creative scenarios:
-- Cruise by the local donut shop just before dawn and stick it on a cop's car
-- Attach it to someone's boat when they appear to be about to hit the lake for some fishing
-- Package it up and mail it to some random destination, preferably in an obscure country
-- I dunno...if it's small and light enough, tie it onto a migrating Canadian goose?
Parent
Re:But... (Score:5, Funny)
Random comment:
That last idea isn't the greatest, because if I recall my (was it 6th grade?) text book from several years ago, geese are strong enough to break your arm if they decide to hit you with their wing. They also bite.
Wha? Canadian geese range from 5-14lb (3.2-5.5kg) in weight. The largest goose is supposedly around 20lb. How's that supposed to work? Do you understand the concepts of mass, velocity, and energy?
I can see how one might break your arm if ... shot out of a cannon.
Parent
Re:But... (Score:4, Insightful)
Parent
Re:But... (Score:5, Insightful)
How can warrantless GPS tracking be legal while warrantless car searching is illegal.
Police don't need a warrant to follow a car, and in my opinion, GPS tracking is more akin to tailing a car than searching through it. I'm not thrilled by this ruling, but it doesn't seem blatantly unconstitutional.
I'm not quite sure you're correct there. It's rather ironic that the case here involved someone suspected of stalking. Stalking also can be no more than following someone around and watching them in public places, yet it's something most areas have laws against. The only difference here is that the "stalker" is a police officer. Do you have any doubts that if it were found that the person suspected of "stalking" had covertly put GPS trackers on his victim's cars, they wouldn't nail him in a second? It would seem to me that if this type of behavior would be potentially criminal if done by someone who's not a police officer, it should take a warrant for a police officer to engage in it.
The clear intent of the Fourth Amendment is that the police can't pry into our lives without convincing a judge they have probable cause to believe we're involved in a crime. Even then, they can't just fish, they have to tell the judge exactly what crime, why they believe we're involved in it, and what evidence they believe their search will find.
Just because technology may now allow them to do such prying without physically kicking in a door doesn't mean we should allow surveillance on anyone at any time. As far as I'm concerned, gathering data on a specific person's movements, habits, etc., through surveillance, is a type of search (one is checking into that person's personal life, using methods that would routinely be thought to be invasive even if they are in public, and ironically here most of those methods would trigger the very anti-stalking laws being enforced here), and should be subject to Fourth Amendment protection, including the requirement for a warrant.
Parent
Re:But... (Score:4, Insightful)
It's only illegal after they have told me to stop it and show emotional distress or physical threats as a reason.
As the court said, the use would be legal as long as the same information could have been gathered using normal observational techniques. There are plenty of opinions regarding this type of public activity, and there will be plenty more.
The Constitution provides only guarantees against unreasonable search and seizure. There has to be a balance between protecting against fishing expeditions and letting people with a preponderance of evidence get away because of delays in getting warrants. A police officer can walk past a car and look into it and if he see's a dead body, he can open the car and search it. If he sees a what could be drugs, he may have to go get a search warrant. One is a reasonable search, there is a body with pools of blood in the back seat. The other is not, the white powder could be sugar.
Police have always been able to 'tail' suspects. I feel this is no different. If police start attaching GPS devices to cars of people not accused of any crimes 'just to see where he goes' and then arresting them for speeding, I'm sure the courts will toss those out using exactly the same type of finding.
Parent
Re:But... (Score:5, Insightful)
Police have always been able to 'tail' suspects. I feel this is no different. If police start attaching GPS devices to cars of people not accused of any crimes 'just to see where he goes' and then arresting them for speeding, I'm sure the courts will toss those out using exactly the same type of finding.
You, oddly enough, fail to see the problem differentiating both situations.
The act of tailing a suspect by a police officer requires use of manforce, which prevents it from being widely abused.
Given the constantly decreasing costs of electronics manufacture, even if not now, there will be a point where it becomes possible to constantly monitor large part of the population without extraordinary expenses. Especially if you are doing this to simply gather data on people in case sometimes you decide to go after a particular individual.
I fail to see how this is difficult to envision.
Parent
Re:But... (Score:5, Interesting)
When over time GPS tracking becomes "normal observational techniques", would the police not then be able to ticket the driver for speeding? Right now a police cruiser that is tailing someone can give them a ticket for speeding. If GPS tracking is thought of as the same as tailing, why would it be different. Right now people may see a difference, how about in 10 years? how about 25 years?
Right now there is a limit on how many people can be trailed by a cruiser based on actual numbers of the police force. How does this translate to GPS tracking? Seems like some over zealous politician could get thru funding to have one tracker per citizen.
Parent
Re:But... (Score:5, Interesting)
Police have always been able to 'tail' suspects. I feel this is no different.
Except that tailing you does not need them to "secretly attach a GPS device" on your property. Yep. Not different at all.
How about skipping the car and implanting the tracker on, say, your shoulder? Or if that's too invasive, require you to carry the device at all times?
Parent
Re:But... (Score:5, Insightful)
I think enforcement of this type of equality of "public" information will keep Judges and cops in line better in general. Set it into law that as soon as the Police don't need a warrant for some information, we get the information too about them and their families.
Of course in the real world YMMV.
Parent
Re:But... (Score:4, Interesting)
Now suppose they just put these devices on everyone's car, and used them to send remote speeding tickets and other such nonsense...
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Re:But... (Score:5, Interesting)
In some places, and for some people, standard advice if you find a "device" attached to your car is to call out the bomb (disposal) squad...
Now doing that for a police gps tracker is going to waste a lot of police time but finding an unknown device under your car is legitiamte reason to call them out. In the US you could probably then sue them for emotional distress or something for thinking someone has put a bomb under your car. That would probably be more lucrative than ebaying the tracker as well...
Parent
Re:But... (Score:5, Funny)
But simply attaching something temporarily to your car in a way that doesn't diminish your car's value in any way? I'm not aware of any law generally preventing that.
I'd say a GPS tracker considerably diminishes the car's value as a getaway vehicle.
Parent