Hiding in Plain Sight: Protection from Gps Technology Requires Congressional Action, Not a Stretch of the Fourth Amendment - Kimberly C. Smith

• Publication year: 2011

Comment

Hiding in Plain Sight: Protection from GPS Technology Requires Congressional Action, Not a Stretch of the Fourth Amendment

I. Introduction

In the fall of 2010, a college student in Santa Clara, California, found a peculiar object on the underside of his vehicle after a trip to the mechanic.¹ The student's friend posted an online picture of the strange device asking for suggestions about its source and "if it mean[t] the [Federal Bureau of Investigation] 'is after us.'"² As it turns out, the Federal Bureau of Investigation (FBI) was secretly tracking the twenty-year-old Arab-American using a Global Positioning System (GPS) affixed to the underside of his vehicle.³ The FBI located the student two days after the posting and demanded the return of their expensive device.⁴ At the same time, federal agents spoke to the student in his native language, Arabic, about the restaurants he frequented, his new job, and

1. Kim Zetter, FBI Allegedly Caught Using GPS to Spy on Student, CNN (Oct. 8, 2010), http://www.cnn.com/2010/TECH/gaming.gadgets/10/08/fbi.tracks.student.wired^index.html.

2. Id.

3. Id.

4. Id.

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how his recent trip to the mechanic triggered their belief that the device had been removed.⁵ Ultimately, the FBI reassured the student he had nothing to worry about, and that he was, in fact, "boring."⁶

The event, however, was anything but mundane to the American public; on the heels of several recent United States Courts of Appeals decisions, the event re-ignited the debate over the constitutionality of law enforcement's warrantless use of GPS devices.⁷ GPS devices, which can keep a continuous log of a person's precise location, have the capability to "provide a detailed picture of one's life."⁸ In the absence of a clear direction from either the Supreme Court of the United States or the United States Congress, state and federal courts are left to grapple with the issue of whether law enforcement's surreptitious use of GPS technology to track a suspect's location constitutes a "search," thereby activating Fourth Amendment⁹ protections. Using their own state constitutions as a platform, the higher courts in the states of Washington, New York, and Massachusetts have deemed the warrantless use of a GPS device a search or the installation itself a seizure.¹⁰ While the federal courts have generally held GPS tracking does not invoke the protections of the Fourth Amendment, the United States Court of Appeals for the District of Columbia Circuit, in United States v. Maynard,¹¹ recently became the first circuit court to hold that the warrantless, prolonged use of a GPS device to track a defendant's movements violated the defendant's reasonable expectation of privacy.¹²

This Comment seeks to demonstrate how the underpinning of the Supreme Court's definition of a search-whether society is willing to find an expectation of privacy reasonable-is not an appropriate standard for protection against "the all-seeing network of GPS satellites that hover

5. Id.

6. Id. (internal quotation marks omitted).

7. See, e.g., United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010); United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010).

8. State v. Jackson, 76 P.3d 217, 223 (Wash. 2003).

9. U.S. CONST. amend. IV.

10. See Commonwealth v. Connolly, 913 N.E. 2d 356, 369 (Mass. 2009) (holding that "the police use of the defendant's minivan to conduct GPS monitoring . . . constituted a seizure," which required a warrant, but declining to resolve the issue of whether GPS monitoring is itself a search); People v. Weaver, 909 N.E.2d 1195, 1203 (N.Y. 2009) (holding that the "dragnet use of [GPS] at the sole discretion of law enforcement authorities to pry into the details of people's daily lives is not consistent with the values at the core of [the New York] State Constitution's prohibition against unreasonable searches"); Jackson, 76 P.3d at 224 (holding that the use of GPS devices on the vehicles of private citizens by law enforcement constituted a search under the Washington Constitution).

11. 615 F.3d 544 (D.C. Cir. 2010).

12. Id. at 563.

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overhead, which never sleep, never blink, . . . and never lose atten-tion."¹³ Rather than await a decision from the Court, Congress is more suited to resolve the issue through comprehensive legislation that prohibits law enforcement from using a GPS device without first procuring a warrant. Part II describes the Court's interpretation ofthe Fourth Amendment as it applies to evolving technology; in doing so, Part II details the Court's transition from a trespass-based standard to a two-pronged reasonableness test, focusing on the seminal Court decisions that have shaped the debate over GPS technology today. Part III provides a briefoverview ofmodern GPS capabilities for law enforcement and a discussion of the issues dividing the lower courts. Lastly, Part IV explains the challenges facing the Court in providing adequate protection from law enforcement's unrestricted use ofGPS technology via the Fourth Amendment and how Congress should, instead, step in to protect this vital privacy interest.

II. The Fourth Amendment and Electronic Surveillance

The Fourth Amendment to the United States Constitution¹⁴ protects against unreasonable searches and seizures by government agents.¹⁵ Prior to a Fourth Amendment analysis ofreasonableness, the actions of law enforcement must first be recognized as either a "search" or a "seizure."¹⁶ A search is defined as an invasion of an individual's protected interest as measured by one's reasonable expectation of privacy.¹⁷ Before the execution of a search, the second part of the Fourth Amendment-the "Warrant Clause"-has been interpreted to require a finding of probable cause in the presence of "a neutral and detached magistrate."¹⁸ Aside from a limited number of exceptions, if a search is conducted without a warrant, it is considered "per se unreasonable under the Fourth Amendment."¹⁹ For both federal and

13. Pineda-Moreno, 617 F.3d at 1126.

14. U.S. CONST. amend. IV.

15. United States v. Jacobsen, 466 U.S. 109, 113 (1984).

16. See Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470, 476 (5th Cir. 1982) ("The decision to characterize an action as a search is in essence a conclusion about whether the [F]ourth [A]mendment applies at all. If an activity is not a search or seizure (assuming the activity does not violate some other constitutional or statutory provision), then the government enjoys a virtual carte blanche to do as it pleases.").

17. See Thomas K. Clancy, What Is a "Search" Within the Meaning of the Fourth Amendment?, 70 ALB. L. REV. 1, 2 (2006).

18. Johnson v. United States, 333 U.S. 10, 14 (1948).

19. United States v. Maynard, 615 F.3d 544, 566 (D.C. Cir. 2010) (quoting Katz v.

United States, 389 U.S. 347, 357 (1967)) (internal quotation marks omitted).

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state courts, the exclusionary rule mandates the suppression ofillegally seized evidence in violation of the Fourth Amendment.²⁰

A. From Physical Invasion to Reasonable Expectation of Privacy

The test for whether police action demands the protection of the Fourth Amendment was originally entrenched in the law of trespass. For instance, in Olmstead v. United States,²¹ the Supreme Court considered the Fourth Amendment's application to wire-tapping by the government.²² Justice Taft noted that the Fourth Amendment's express use of the language "houses, persons, papers, and effects" presumptively limited searches to those specific "material things."²³ Not only was wire-tapping not a "thing" to be seized, but the Court concluded that there was no physical intrusion by the police into the defendant's home; rather, "[t]he evidence was secured by the use of the sense of hearing and that only."²⁴ Prophetically, Justice Brandeis, in dissent, forewarned that "[t]he progress ofscience in furnishing the government with means ofespionage is not likely to stop with wiretapping" and urged the Court to view the Fourth Amendment not in "'what has been, but of what may be.'"²⁵ The result of the Court's decision in Olmstead was to narrow the protections afforded under the Fourth Amendment to physical invasions of a "constitutionally protected area."²⁶

In 1967 the Court, in Katz v. United States,²⁷ radically altered the expanse of the Fourth Amendment by declaring that "the Fourth Amendment protects people, not places."²⁸ In Katz the Government sought to introduce evidence of telephone conversations obtained when the FBI attached an electronic listening and recording device outside of a public telephone booth.²⁹ The Court noted that even though the telephone booth was public, one has a right to assume that the words spoken in an enclosed booth would be free from intrusion from "the

20. Mapp v. Ohio, 367 U.S. 643, 655 (1961); see also Weeks v. United States, 232 U.S.

383, 398 (1914).

21. 277 U.S. 438 (1928), overruled by Katz v. United States, 389 U.S. 347 (1967), and

Berger v. New York, 388 U.S. 41 (1967).

22. Id. at 455.

23. Id. at 464-65.

24. Id. at 464.

25. Id. at 474 (Brandeis, J., dissenting) (emphasis added).

26. See Katz, 389 U.S. at 350, 352-53 (internal quotation marks omitted).

27. 389 U.S. 347 (1967).

28. Id. at 351.

29. Id. at 348.

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uninvited ear."³⁰ In order to extend Fourth Amendment protections to oral conversations obtained "without any technical trespass," the Court overruled Olmstead to the extent that Olmstead relegated Fourth Amendment rights to physical intrusions or the seizure of tangible items.³¹ Thus, the Court held that by recording the petitioner's calls, the FBI violated the privacy "upon which [the petitioner] justifiably

relied."³²

The modern, "bright-line" rule for discerning whether a search has occurred, however, is derived from Justice Harlan's concurrence in Katz.³³ Justice Harlan synthesized the majority's decision into a two-pronged formula, requiring both an objective...