Can Big Brother Track You?
On November 8th, the Supreme Court will hear oral argument in United States v. Jones. I only know the bare details of the case, but it's so interesting, I wanted to see what the Rico Community has to say.
The question is whether the Constitution allows police to put a GPS tracking device on a car without either a warrant or the owner's permission; and whether the Constitution is violated when police use the tracking device to keep track of the car's whereabouts. That's right, in this case, law enforcement agents installed a GPS device in a suspect's car when he wasn't looking. They then followed his movements until they found illegal drugs (a lot of them, apparently).
Personally, I don't want the police installing things in my car without my permission (unless doing so would stop that weird knocking sound I've been getting). The question is whether the Constitution forbids this. (See Orin Kerr's essay at Scotusblog). Here's what the Fourth Amendment says:
The right of the people to be secure in their persons, houses, 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.
The police can observe my house and my car from the outside without triggering a "search," but once they go inside my car? Isn't that like going inside my house? Thoughts?
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Dec '10
Re: Can Big Brother Track You?
Sadly I think they can. It has been show that replacing a human police officer with a machine is not an invasion of privacy(i.e. security cameras). As far as I know it is not illegal to place those stupid brochure/ads in your window wiper. Therefore as long as the Police Officer did not actually enter the car I don't think it will be ruled unconstitutional for them to place a tracking device on the car with a warrant.
I think Congress would have to pass a separate law banning the practice without a warrant. IMO the Constitution does not protect us from this.
Aug '10
Re: Can Big Brother Track You?
In my humble opinion, placing a tracking device on the outside of a vehicle is not the same as searching the inside of a vehicle.
I presume that most people would have no objection if a police officer happened to notice a suspect's car outside a suspicious location and wrote a note in a notepad regarding the location.
I also presume that most people would have no objection if a police officer physically follows a suspect.
IMHO, placing a tracking device on a suspect's vehicle is simply a more efficient method of achieving the same end.
The vehicle is not being searched. Rather, the vehicle's location is merely being noted. As such, I do not believe it violates the Fourth Amendment.
If it's illegal for police to track a vehicle electronically, then it should also be illegal for police to physically follow a vehicle and take note of its location.
Edited on Oct 24, 2011 at 11:41amOct '10
Re: Can Big Brother Track You?
Some states have upheld the practice to date. The other issue is the comfy relationship OnStar has developed with law enforcement and the FBI. The cell phones in the autos are activated without the owners knowledge for eavesdropping.
At least that still requires a warrant. The FBI has nabbed some big fish in this way.
A very uncomfortable circumstance when function creep is factored in.
Jun '10
Re: Can Big Brother Track You?
I cannot recall whether the Supreme Court equated a car to a home, or if it limited searches of cars becauase our "papers and effects" are in our cars. If it were equated to a home, it is a phony construct under the 4th amendment and a policy preference. Certainly the Founders had the equivalent of cars that could have been alluded to if not mentioned expressly. To the extent the protection of the car is to protect the "papers and effects" within the car, attaching a locator to a car does not invade that province of "privacy." It does not give the government access to my papers and effects anymore than photographing my car running a red light does. The goverment could easily dedicate a satellite in geo-synchronous orbit to track my car overhead everyday, all day if it chose to, and while that would be an incredible waste of resources and unwise, no one would say it was unconstitutional or a "search."
Where I am at any given point in the day when I am out on the street is not private, it is quintessentially public.
Aug '10
Re: Can Big Brother Track You?
Another thought: While I do not believe it would be unconstitutional, I would suspect many judges wouldn't give much weight to the evidence, because the data would be terribly unreliable from a forensic point of view.
Look at it this way: If a police officer physically follows a suspect, the office can testify in court that he/she actually witnessed the suspect's movements.
On the other hand, if the officer places a tracking device on a vehicle which logs the vehicle's movements, a good defense attorney would be able to poke holes in the data.
How does the officer know that the device was on the suspect's vehicle at all times if the officer did not witness the vehicle's movements? Could the suspect not have discovered the device and placed it on a different car?
How does the court know that the officer didn't simply manufacture the GPS data?
The GPS data would be constitutional, but I doubt it would be very useful as evidence in court.
Mar '11
Re: Can Big Brother Track You?
1. Did the mere fact of following the defendant for a month via GPS, when other means of surveillance would provide less information of the defendant's whereabouts violate his "reasonable right to privacy"? From the Appellate decision:
"The words “reasonable expectation of privacy” themselves suggest no such element. The expectation of privacy is on the part of the observed, not the observer...[T]he degree of invasion of that expectation may be measured by the invader’s intent, but an invasion does not occur unless there is such a reasonable expectation."
Simply because the GPS covered activities not relevant to the investigation, the defendant still had no reasonable expectation of privacy at any time while he was driving. The cops win on this point.
2. There's a property-based Fourth Amendment claim that placing the device was a violation of those rights, the Court said:
"In Silverman the Court concluded that installation of a listening device on the defendants’ property (by accessing a heating duct in a shared wall of the defendants’ row house) was subject to the Fourth Amendment."
If Silverman's still good law, the defendant wins on this point.
That's my 2 cents worth.
Jul '10
Re: Can Big Brother Track You?
I guess that depends on the definition of "papers and effects". If someone's automobile is included, then being secure sounds to me like law enforcement has no right to tamper with my vehicle in any way without probable cause in which case they should get a warrant. This sounds like the cops were trying to cut corners and then play semantic games to cover themselves for not bothering to get a warrant.
Jun '10
Re: Can Big Brother Track You?
We've already gotten to the point the TSA and police can stop us at random to see if we might be breaking a law without a warrant. It used to be that the rights of the individual were the yardstick these things were measured by. Now it's the right of the state that is the default and the individual is a distant second.
Dec '10
Re: Can Big Brother Track You?
Misthiocracy:
How does the court know that the officer didn't simply manufacture the GPS data?
The GPS data would be constitutional, but I doubt it would be very useful as evidence in court. · Oct 24 at 12:08pm
Manufacturing GPS data is pretty much the same as lying under oath. Pretty sure that wouldn't be an issue. As to the rest of it, I don't think the actual movements are the GPS are used in court. Rather they use the movement to find a pattern and then increase searches/surveillance on the points of interest that stand out. In this case it appears they just noticed the suspect seems to visit a location there was no real reason for them to visit and when they searched that place they found a bunch of drugs.
Edited on Oct 24, 2011 at 12:27pmAug '11
Re: Can Big Brother Track You?
Yet another reason to end the stupid, futile "war on drugs", which has turned out, increasingly, to be an assault on privacy.
Aug '10
Re: Can Big Brother Track You?
They'd need more evidence than "the suspect went there a lot" to get a search warrant or to prove probable cause.
The defense doesn't need to prove the GPS data was manufactured. The defense simply needs to provoke reasonable doubt. The onus would be on the police to prove that the GPS data is genuine and accurate. How would they do that?
In short, I see it as a potential investigative tool, but not a particularly effective source of direct evidence.
Dec '10
Re: Can Big Brother Track You?
Pretty much every automobile in America has a tracking device installed: it's called a license plate. Every movement of your vehicle on the streets and highways can be directly observed. The GPS device -- assuming it's attached magnetically to the outside of the vehicle and not inside the passenger compartment, engine compartment or trunk -- only allows a more labor-efficient means of following a vehicle's movements. And where you go in your car on public roads is not protected private information.
Apr '11
Re: Can Big Brother Track You?
Meter maids can chalk your tire. I don't see any problem with electronic surveillance. The actual data are not likely to be introduced as evidence. They just make it easier for the police to be on the scene when suspected illegal activity is likely to occur.
Nov '10
Re: Can Big Brother Track You?
Around here, at least, we don't like people (including the police) messing with our families, dogs, or pickups. My hunch is that juries would not respond well to evidence gathered by means of sneaking a transponder onto a vehicle and "following" it in that fashion.
I reckon that most people have nothing to hide, but nobody whom I know wants the law or anybody else keeping a record of where he goes and how long he stays. I hope that the Court holds the evidence unconstitutional.
Jul '10
Re: Can Big Brother Track You?
I found the Cato amicus brief particularly good. It sums up most of my opinion on this and contends this violates reasonable search and seizure without a warrant.
Dec '10
Re: Can Big Brother Track You?
If I find a GPS device planted on my car without a warrant, does it become my property?
Aug '10
Re: Can Big Brother Track You?
I would say yes.
Jun '10
Re: Can Big Brother Track You?
Might there be an equivalency between GPS-tracking and domestic wiretapping? In other words, since domestic wiretapping usually requires a warrant, couldn't the same argument be made for GPS tracking?
Edited on Oct 24, 2011 at 1:01pmDec '10
Re: Can Big Brother Track You?
If I find the GPS and take ownership, am I required to remove it, or can I simply wait and charge the police officer with theft when he recovers it?
Jan '11
Re: Can Big Brother Track You?
And if the police used a bloodhound to track a car or a person, would that, too, be unconstitutional? Is there a constitutional distinction between the two tracking methods?