You Get What You Pay for . . . and So Does the Government: How Law Enforcement Can Use Your Personal Property to Track Your Movements

• Publication year: 2004
• Citation: Vol. 6 No. 2004

Timothy Joseph Duva⁰

I. Introduction: You Can Run But You Can't Hide . . . Your Phone Brings the Police Along For the Ride

If Scott Peterson had been stuck in traffic on a congested highway in Los Angeles, driven to a local bank, or taken a transcontinental road trip to West Orange, New Jersey, police in Modesto, California would have known. Indeed, the police department's surveillance was precise, perpetual, and nearly invisible. It was also electronic. Shortly after Peterson's wife, Laci, disappeared in December 2002, police in Modesto, California secretly placed Global Positioning System ("GPS") tracking units on four of his vehicles.¹ Peterson, who has since been convicted of killing his wife, did not know his every move was being recorded by an electronic device and his actions were providing evidence of his guilt.² Specifically, Peterson repeatedly³ visited a marina on the San Francisco Bay, in what prosecutors alleged was an effort to make sure that his wife's body had not surfaced.⁴ While we cannot be sure whether Peterson would have been convicted if not for the GPS evidence, one thing is certain: Law enforcement officers⁵ are constantly employing new, more effective means of tracking their suspects, and the rapid technological developments that characterize American society fuel their efforts.

There is no doubt that technological advances have the power to make our lives easier. This fact is particularly true with regard to travel as devices such as cellular phones, electronic toll-collection systems, and GPS navigators make road trips quicker and more enjoyable or reduce the chances that we will get lost. As the public embraces them wholeheartedly, these products have become ingrained into the American way of life. For instance, the Cellular Telecommunications and Internet Association, a Washington, D.C. organization, estimates that there are now 165.7 million cellular phone users in America.⁶ Additionally, OnStar, a GPS and cellular technology hybrid that incorporates security, safety, and technology features, now boasts 2.5 million subscribers.⁷ Finally, E-ZPass, an electronic toll collection system used throughout the Northeast, claims more than 1.2 million users in New Jersey alone.⁸ In fact, E-ZPass has become so successful that clones have sprung up in other areas of the country.⁹ While these products make our travels more convenient, each comes with a hidden feature: The government gets to tag along. Indeed, when using a cellular phone, an electronic toll-collection transponder, or an in-car GPS navigator, millions of consumers are unwittingly opening themselves up to multiple forms of government tracking, all of which they pay for and none of which is sufficiently restricted by law.

This Comment examines the means by which law enforcement officials can use an individual's technology against him, focusing on how the government can track people who use certain commercially available products and the laws meant to regulate such conduct. Part II highlights various products that the government can and has used to track people. Part III examines the judiciary's efforts to regulate such conduct and details how the laws we currently depend on to safeguard us from government surveillance actually provide little or no protection. Part IV proposes ways in which the courts might counter this electronic invasion of privacy.

II. How do I Track Thee . . . Let Me Count the Ways

The American business world is characterized by a healthy spirit of competition. Technological advances continually drive companies to improve their goods and delve into new areas of research in order to avoid being outdone by rival corporations. Indeed, the last decade has been rife with such development, particularly with regard to products that make our hectic lives more manageable.¹⁰ Items such as cellular phones, E-ZPass transponders, and navigation tools utilizing the GPS allow us to work and travel more efficiently than ever before. However, all of these technologies necessarily involve the collection and transmission of their users' personal information and contribute to what two authors term the growing American "surveillance monster."¹¹ Additionally, with increasing frequency, federal and state officials are forcing private companies to surrender their customers' personal data for investigatory purposes.¹² Specifically, law enforcement agencies throughout the country have used the data generated by cellular phones, GPS devices, and other consumer-owned products to track suspects.

While cellular phones are powerful communication tools, they are not traditional tracking devices. Currently, there are two different ways of locating particular cellular phones and, in turn, their owners.¹³ The first method is known as "Enhanced 911" ("E911") technology, which allows emergency personnel to locate a 911 caller anywhere in the country by virtue of a GPS device contained in that caller's cellular phone.¹⁴ The Federal Communications Commission ("FCC") has issued a regulation requiring that all new cellular phones activated since December 31, 2002 include E911 technology.¹⁵ Moreover, the FCC requires that service providers gradually phase out their support of phones not equipped with E911 technology so that ninety-five percent of cellular phone subscribers will be using E911-capable phones by December 31, 2005.¹⁶ Finally, the FCC requires that the tracking technology included in cellular phones be powerful enough to track subscribers with a high degree of accuracy and reliability.¹⁷ Indeed, should the government choose to employ them, E911 systems provide a direct way of tracking any member of the escalating cellular phone user population.

The second, and slightly more indirect and imprecise, method of tracking cellular phone users is known as triangulation.¹⁸ This process involves estimating a caller's location based on the relative positions of the different cellular receiving towers that carried the signals from his phone.¹⁹ In United States v. Forest,²⁰ agents of the Drug Enforcement Administration ("DEA") used signal triangulation, without first obtaining a search warrant, to locate defendant Herman Garner, a suspected cocaine trafficker.²¹ DEA officers suspected that Garner was involved in a cocaine trafficking operation, and officers physically followed Garner and observed his activities.²² However, when the DEA agents were unable to maintain their visual contact with Garner,

a DEA agent dialed Garner's cellular phone several times (without allowing it to ring) . . . and used Sprint's computer data to determine which cellular transmission towers were being "hit" by Garner's phone. This "cell-site data" revealed the general location of Garner. From this data, DEA agents determined that Garner had traveled to the Cleveland area and then returned to the area of Youngstown/Warren.²³

Using the information gained by triangulating Garner's cellular phone signals, the DEA agents were able to reestablish visual contact with Garner and arrest him.²⁴ Indeed, while signal triangulation does not yield location data as precise as that generated by the GPS-driven E911 systems discussed above, it is still a powerful tracking tool; just ask Herman Garner.

Cellular phones are not the only technology capable of giving the government direct information regarding users' whereabouts. Electronic toll collection ("ETC") devices, such as E-ZPass,²⁵ may also be used for this purpose. To use this technology, drivers attach a transponder to their vehicles.²⁶ As drivers pass through specially equipped toll plazas, the transponder sends information to a receiver in the toll plaza, and the toll is then debited from the driver's pre-paid account.²⁷ While E-ZPass makes commuting both faster and easier, it does the same for government surveillance. For billing purposes, ETC service providers keep a log of where and when each of its customers passes through a participating toll plaza. Therefore, a law enforcement agency looking to track an ETC subscriber need only check an individual's account information in order to get at least a basic idea of his location. Additionally, more secretive government uses of the technology have been revealed. "Unbeknownst to most E-ZPass subscribers, antennas placed along twenty miles of the New York State Thruway and the New Jersey Turnpike have been quietly picking up their I.D. numbers and clocking their speed and location."²⁸ While it seems clear that the information collected by ETC systems could be used to track those using the convenient technology, such data would present little threat if subscribers' personal information were kept confidential. However, in New York City, where ETC systems are ingrained in the city's mass-transportation system, courts have not stopped police officers from seizing subscriber records from the Metropolitan Transportation Authority ("MTA").²⁹

As New York City allows travelers to use both E-ZPass and the MetroCard, which provides users with a convenient way of paying subway fares, technology has made life easier for the city's residents and tourists alike.³⁰ Ease comes with a price, however, as the MTA's central computers collect the data generated by these systems, providing government authorities with a potentially infinite number of tracking opportunities.³¹ Moreover, since the MTA's 1997 attempt to shield subscriber information from the warrantless searches of government authorities failed, "[a] mere request [by police] seems sufficient for the MTA to fork over the data."³² Therefore, whether or not those using New York City's mass-transportation systems realize it, their travels leave an electronic trail accessible by any requesting police officer.

While ETC systems allow government agents to track travelers, the locating power of such technology pales in comparison to that of the GPS. The GPS is "a constellation of satellites that transmit timed coded pulses, like a radio tower...