Old Answers to New Questions: Gps Surveillance and the Unwarranted Need for Warrants
| Publication year | 2009 |
Law enforcement officers rely on technology for surveillance. And as new technologies emerge, society can expect that those charged with our day-to-day protection will also utilize the fruits of science alongside the rest of us. But at what point on the technological timeline do the limits we bestow on law enforcement no longer adhere to the fundamental interests we all enjoy under the Constitution? Can changes in technology render the jurisprudence of the past obsolete? Although these questions have a never-ending stream of application, this Recent Development argues that the well-established Fourth Amendment precedent of yesterday still applies to the GPS surveillance technology used today.
Have we, members of a free society, turned a blind eye to the government's squandering of our constitutional liberties? Have our courts, the true guards protecting us from those veiled under the dark color of law, injudiciously watched as our intrinsic Fourth Amendment1 protections dissolved in plain sight? Consider the following assertions, reflecting on the unfettered use of Global Positioning System ("GPS") surveillance:
The sky is not falling—yet. But, if we continue to allow the Court's Fourth Amendment law to be interpreted in a limited fashion that reads the amendment's protections into oblivion, George Orwell's 1984 will become a much more likely version of our future.2
The privacy violations arising from governmental abuse of GPS data from cellular phones and vehicle tracking systems are vast, thus legislative intervention is imperative.3
[T]he question becomes whether technology has eroded the protections provided by the Fourth Amendment, as interpreted by the U.S. Supreme Court. So far, the answer seems to be yes. . . .4
To some, this Orwellian future is no longer a sci-fi fantasy, but a prophetic reality knocking on our door—or more accurately, ringing the doorbell. This Recent Development, however, does not share this view.5 Rather, glancing only at the past few decades, this Recent Development seeks to explain how the precedent governing previous vehicle-tracking technologies still applies to the devices currently used by law enforcement officers.
To fully explain the evolution of the Fourth Amendment's role in vehicle tracking—namely as a constitutional protection triggered if the surveillance is construed as a "search"—this Recent Development is set out in three sections. By examining the relevant tracking devices used in vehicle surveillance, "beepers" and GPS, Part II illustrates that despite the technological variances, both instruments procure essentially identical data. The implications of this comparison prove fundamentally critical when analogizing the established Fourth Amendment case law with today's unsettled surveillance guidelines. Next, Part III describes the Fourth Amendment and its application in two Supreme Court surveillance cases on point, albeit involving the more primitive of the technologies: beepers. These cases, United States v. Knotts6 and United States v. Karo,7 stand for the proposition that surveillance of public information does not implicate the Fourth Amendment. Part IV first examines the recent GPS litigation and argues that the rationale arising from the majority of federal and state courts properly adheres to the Supreme Court's "public information" precedent. Part IV then continues by analyzing United States v. Jones,8 the most recent of the three cases heard by a federal circuit court addressing the issue of modern day vehicle tracking. Although the D.C. Circuit has yet to release its decision in Jones, this Recent Development argues that the court should follow the decisions of the other circuit courts and the majority of state and federal courts by applying the Supreme Court's precedent. Part V concludes by reiterating that although there are technological differences between beepers and GPS, the same public information is acquired—information unequivocally held not to trigger the Fourth Amendment.
As a matter of vehicle surveillance, what was once used and labeled a beeper has been technologically superseded by GPS. The Fourth Amendment's text, however, has not evolved to comply with society's scientific achievements, leaving the courts at times to maintain the connection between our constitutional protections and the emerging technologies that could not have been foreseen years ago.9 Accordingly, understanding the differences and similarities between the beeper and modern GPS is paramount in order to appreciate their application in the analysis of Fourth Amendment case law. A brief explanation of the workings of the two technologies ensues.
A. Officer + Beeper = Vehicle Location
The beeper, as used by law enforcement officers before the turn of the century, does not necessarily refer to the common "pager" used by millions in the 1980s and 1990s as a means to transmit numerical messages, although the technology is a helpful analogue.10 Here, "[a] beeper is a radio transmitter, usually battery operated, which emits periodic signals that can be picked up by a radio receiver."11 Once a beeper was placed on a vehicle,12 an officer was able to track the vehicle's movements without having to physically see it. Essentially, by measuring the signal's strength, law enforcement tailing a vehicle could determine their approximate distance from the transmitter being followed.13 Accuracy and reliability, however, were not the beeper's forte. Law enforcement agencies were sometimes faced with the challenges of reduced range in congested areas14 and the data received by the officer only contained the whereabouts of the vehicle, because the beeper was "incapable of transmitting conversation or recording sounds."15 Nonetheless, despite its flaws, the beeper did its job: tracking vehicle locations.
B. Officer + GPS = Vehicle Locations
Flash forward to the world of the GPS.16 No longer are primitive radio signals being directly transmitted to nearby surveillance authorities. Instead, all-powerful satellites in uninterrupted planetary orbit beam pinpoint location data at the user's request, allowing virtually anyone in the United States to harness space-age technology with generally available handheld gadgets.17 The process establishing the human-satellite relationship, called "trilateration,"18 calculates the time it takes for a signal from a GPS receiver on land to reach three or more satellites in space.19 As the satellites' distances between each other are preprogrammed, the location of the GPS receiver is determined by calculating the different times between multiple satellites.20
The technology is utterly impressive and seems light-years more advanced when compared with the simpler beeper mechanics.21 But as used in a surveillance application,22 GPS technology's similarity to beeper technology is apparent. For example, GPS still requires the physical installation of the receiver to the vehicle.23 And like the beeper, GPS just relays location data to the surveillance authorities. It does not expose conversations or record images for law enforcement.24
However, relevant differences do exist, primarily in two distinctive areas: accuracy and data volume capability. Unlike the beeper, GPS remains accurate even from great distances, both in congested areas and throughout various weather elements.25 And the beeper's location estimation pales in comparison to satellite's pinpoint accuracy.26 Furthermore, while the beeper requires at least some physical proximity by officers to determine a vehicle's whereabouts, GPS has the capability to single-handedly acquire vehicle locations continuously over a long period of time.27 But are these differences enough to justify rethinking Fourth Amendment jurisprudence? Essentially, both beepers and GPS produce similar results for the law enforcement user: vehicle locations. Yes, the possibilities for abuse are more readily attainable, but mere possibilities do not make a device more intrusive nor increase society's expectation of privacy under the Fourth Amendment.28 Unless the GPS capabilities are abused or there is evidence that abuse is imminent, the current protections afforded by the Fourth Amendment sufficiently secure the technological gap between beepers and GPS.
The Fourth Amendment states that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . . "29 Regrettably, the founders did not include a GPS provision or beeper clause. To fill in the gaps, courts have made various rulings, ensuring that the fundamental protections the Fourth Amendment affords remain absolute.
A. The Fourth Amendment in an Age of Technology
By its very language, the protections of the Fourth Amendment are only implicated when a "search" or "seizure" occurs.30 Absent narrowly defined circumstances, the second part of the amendment, the "Warrant Clause,"31 mandates acquiring a warrant to justify the "search" or "seizure" as lawful.32 However, if neither a "search" nor "seizure" occurs, the amendment simply does not apply.33 Logically then, the key factor is determining if and at what point electronic surveillance employed by law enforcement constitutes a search.
One of the first cases to address the implications of technology-enhanced surveillance under the Fourth Amendment was Olmstead v. United States.34 Despite the increasingly protective precedent up to that point,35 the court noted that "[t]he amendment itself shows that the search is to be of material things—the person, the house, his papers, or his effects."36 As "an actual physical invasion" had not occurred, it followed that there was no "search."37
However, the 1967 case Katz v. United States38 marked a significant turning-point...
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