GPS tracking case has left unsettled questions

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WASHINGTON (AP) — Judges around the country are grappling
with the ripple effects of a 2-year-old Supreme Court ruling on GPS
tracking, reaching conflicting conclusions on the case’s broader meaning
and tackling unresolved questions that flare in a world where privacy
and technology increasingly collide.
The January 2012 opinion in
United States v. Jones set constitutional boundaries for law
enforcement’s use of GPS devices to track the whereabouts of criminal
suspects. But the different legal rationales offered by the justices
have left a muddled legal landscape for police and lower-court judges,
who have struggled in the last two years with how and when to apply the
decision — especially at a time when new technologies are developed at a
faster rate than judicial opinions are issued.
The result is that
courts in different jurisdictions have reached different conclusions on
similar issues, providing little uniformity for law enforcement and
judges on core constitutional questions. Technological advancements are
forcing the issue more and more, a development magnified by a heightened
national debate over privacy versus surveillance and the disclosure of
the National Security Agency’s bulk collection of Americans’ telephone
records.
"Courts are all over the place on all of these issues,"
said Hanni Fakhoury, an attorney with the Electronic Frontier
Foundation, a privacy group.
Among the questions being confronted:
Should GPS evidence gathered before the 2012 decision be admissible in
court? What are the rights of a passenger in a car being tracked by GPS?
And how might the ruling affect other types of technology, such as
pole-camera surveillance and "Stingray" devices that capture cellphone
data?
That ambiguity was on display just last week, when an
Atlanta-based federal appeals court ruled in the case of a man
imprisoned for armed robberies that investigators need a warrant to get
cellphone tower tracking data, evidence authorities use to place
suspects in the vicinity of a crime. Yet an appeals court in New Orleans
last year authorized warrantless cell site tracking in a case that
presented similar legal issues. A related federal case in Michigan is
now on appeal, too.
The questions form a broader debate about how
police should confront "circumstances of legal ambiguity," said former
federal prosecutor Caleb Mason, who has written on the Jones case.
"Do we want them pushing the envelope as long as no legal authority, no appellate court, has
expressly told them no?" he asked.
Against
the backdrop of a high-tech world, the justices deciding the Jones case
grappled with fundamental principles of privacy and trespass that have
been drawn on repeatedly in similar surveillance disputes.
The
court held that police erred when, without a valid warrant, they
attached a GPS tracking device to the Jeep of a Washington, D.C.,
nightclub owner. The surveillance continued for a month, leading
authorities to a stash house for drugs and helping secure an indictment
against the suspect, Antoine Jones.
The justices unanimously
agreed that using the device constituted a search under the Fourth
Amendment, which bars unreasonable searches and seizures. But they
stopped short of saying a warrant is always required — an important
point since not all searches require warrants — and produced three
separate opinions offering different legal explanations for their views.
Several justices mused at the time that the issues probably would
resurface.
One, Samuel Alito, wrote that technological change can
alter the public’s expectation of privacy and that lawmakers may be
better suited than judges to account for the changes. Another, Sonia
Sotomayor, also discussed privacy concerns in the digital age in her
separate opinion.
The Justice Department, too, has wrestled with the case’s outcome.
An
internal department memo issued after the case was decided noted that
the "case potentially has far greater implications" than just GPS
tracking. It advises federal agents and prosecutors as a matter of
course to get a warrant for GPS evidence "to minimize litigation risk."
In
investigations where warrantless GPS evidence was obtained before the
case was decided, the memo says, prosecutors may reasonably argue that
the evidence should be admitted provided that the officers were acting
in good faith based on their understanding of the law at the time.
Spokesman
Peter Carr said last week that it was department policy to obtain a
search warrant to use any technology in locations where an individual
had a reasonable expectation of privacy.
Some courts have agreed
that warrantless GPS tracking prior to the Jones case was acceptable,
though that idea isn’t universally accepted.
In throwing out
evidence against three brothers charged in a wave of pharmacy
burglaries, a three-judge panel of the 3rd U.S. Circuit Court of Appeals
ruled last year that police were required to get a warrant before using
a GPS device in 2010, rejecting prosecutors’ "good faith" argument. The
entire court reheard the case May 28.
Courts have been similarly
divided on whether car passengers, or nonowners, have legal authority to
challenge GPS evidence against them.
The Jones decision has also
been invoked in court disputes over the NSA’s telephone records
collection. A federal judge in Washington cited the opinions of Alito
and Sotomayor in the Jones case to find that telephone users have a
reasonable expectation of privacy and to declare the NSA program likely
unconstitutional. A federal judge in New York rejected a plea from civil
libertarians to invoke those same opinions and instead upheld the NSA
program.
Police and judges also are wrestling with the privacy
implications of other modern forms of surveillance. In Washington state,
for example, privacy advocates are arguing that the Jones case requires
a court to throw out warrantless video surveillance captured by a pole
camera left by police for a month outside a defendant’s house in a drugs
and weapons case.
In one way or another, the questions will
likely come before the Supreme Court again, said Brian Hauss, an
American Civil Liberties Union lawyer. Police should have clear rules
that apply across multiple technologies, he said.
"Right now, they’re operating in an area of total confusion without significant judicial checks on
their authority."

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