No Warrant Needed for GPS Tracking?

Jacob Sullum | May 11, 2009

Last week a Wisconsin appeals court ruled that police do not need a warrant to track someone's movements by secretly attaching a GPS device to his car. The District 4 Court of Appeals reasoned that attaching the device is neither a "search" nor a "seizure," and the information gleaned from it also could be obtained through perfectly lawful observation of the car's movements, without intruding into any private areas. But the court added that it was "more than a little troubled" by that conclusion and urged Wisconsin legislators to restrict the use of GPS technology by police.

I too am troubled by this result, especially since attaching a tracking device to someone else's car without his permission is a violation of his property rights. At the same time, the Fourth Amendment does not apply to all forms of surveillance or all invasions of privacy. It's pretty clear that surveillance cameras are constitutional, for example, as long as they are located in and trained on public spaces. The best approach in this case might be a statute that makes GPS bugging a criminal offense without a warrant. 

Comments

robc|5.11.09 @ 3:31PM|#

I cant imagine GPS tracking would survive the Infrared test.

|5.11.09 @ 3:34PM|#

"the information gleaned from it also could be obtained through perfectly lawful observation of the car's movements, without intruding into any private areas."

This seems specious- when they attach a GPS to a car, they are using perfectly lawful observation without intruding into private areas. They are intruding into the person's private property (his car)- in some circumstances, it may require the policy to actually enter on the person's land or garage. By the court's reasoning, it is ok to bug a cell phone without a warrant because people commonly use cell phones in public places where the conversation can be overheard.

High Every Body|5.11.09 @ 3:37PM|#

The best approach in this case might be a statute that makes GPS bugging a criminal offense without a warrant.

You are only compounding the problem.

I prefer a statute that makes GPS without a warrant bugging a criminal offense. :)

High Every Body|5.11.09 @ 3:38PM|#

Or even GPS bugging without a warrant a criminal offense!

Paul|5.11.09 @ 3:39PM|#

I too am more than a little troubled by this result, especially since attaching a tracking device to someone else's car without his permission is a violation of his property rights.

Just do what I do: stick it on a bus going into San Quentin...

High Every Body|5.11.09 @ 3:39PM|#

If this is not intrusive can I start donating locking gas caps to the cops as a surprise?

Jozef|5.11.09 @ 3:41PM|#

I work in an industry that uses GPS tracking of vehicles. I don't know what technology the police was using, but our GPS antennas don't work with any metal between the device and the sky. As a result, we place the antenna on the front window or outside, on the top of the vehicle. The police would have to do something similar: place the device somewhere on the upper surface of the car, not under the car or inside. The car owner should thus be able to spot the device relatively easily and dispose of it.

|5.11.09 @ 3:45PM|#

I have mixed feelings about this ruling.

Technically, I don't see the constitutional issue with this.

Using a GPS doesn't seem that much different than following someone. But if police decide to use this on a large scale it becomes more troubling. When staking someone out and following them around, you are limited by finite resources. You only have so many bodies and you only want to follow around people who really deserve it (like violent criminals you think are going to strike soon) -- but using GPS tracking could easily allow the police to track just about anyone on a large scale for even the most mundane of things.

It doesn't seem that far fetched to think that GPS tracking could become very commonly used against any and all people suspected of anything

bc4|5.11.09 @ 3:47PM|#

This has been established 4th amendment precedent for decades, at least in regards to hidden "beepers" that let police track a car or truck by radio wave triangulation. The controlling issue is not whether or not the tracking device lets police track an individual's movement through the public (where are otherwise knowingly exposing themselves to view), but whether the device would allow tracking even within a private area. So, for example, a tracking device that could show what room an individual was in inside a house would be a search requiring a warrant.

Janet Reno|5.11.09 @ 3:48PM|#

it is ok to bug a cell phone without a warrant because people commonly use cell phones in public places where the conversation can be overheard



YES!!!

Perhaps the new Obama Health Company will mandate GPS/audio tracking in all dental work.

This, "cries out for a new paradigm-an entirely different way of delivering dental services to those who need them most."

phalkor|5.11.09 @ 3:49PM|#

if I am allowed to put a gps unit on a police car, then I would be okay with this. something tells me cops would be uncomfortable if organized crime could track their wherabouts.

|5.11.09 @ 3:54PM|#

Why not require GPS transmitters as part of the "privilege" of being allowed to drive a car? I suppose we could ignore the 5th Amendment implications of that, too.

Paul|5.11.09 @ 3:56PM|#

Jozef, I understand what you're saying, and it's been my experience that GPS signals are so weak, that antennae usually have to be exposed to the sky... directly. But somehow people seem to be making "trackers" for various covert purposes that claim no antenna mounting necessary:

http://www.consumertracking.com/deals/product/gps-tracking-system-t-trac-car-gps-tracker-device-system-fleet-unit-B001GWYBJM

High Every Body|5.11.09 @ 3:59PM|#

something tells me cops would be uncomfortable if organized crime could track their wherabouts.

Organized crime ALREADY knows their wherabouts. What the hell do you think time honored traditions of graft and corruption are for?

High Every Body|5.11.09 @ 4:02PM|#

Paul,

From your link: The T-Trac XS is completely self contained and uses 4 standard "AA" batteries (NOT INCLUDED)

We need a federal program to forse these cheap companies to include batteries.

High Every Body|5.11.09 @ 4:02PM|#

Force even.

JP|5.11.09 @ 4:03PM|#

Why not require GPS transmitters as part of the "privilege" of being allowed to drive a car? I suppose we could ignore the 5th Amendment implications of that, too.

But of course! How else do you expect them to be able to tax us for our carbon footprints?

oat willie|5.11.09 @ 4:04PM|#

"It doesn't seem that far fetched to think that GPS tracking could become very commonly used against any and all people suspected of anything."

What about when big brother uses GPS to track us for road use / tax purposes? I have heard this being mentioned to replace / augment the state and federal fuel taxes. I would imagine that the GPS technology to measure miles driven could be easily jimmied by police for all sorts of THX-1138 style eves-dropping.

/In that movie the characters were punished for drug abuse when they flushed their daily pills down the toilet. Change I can believe in.

Xeones|5.11.09 @ 4:04PM|#

Yo, fuck the District 4 Court of Appeals.

Warty|5.11.09 @ 4:09PM|#

So are we taking crazy pills, or is everyone else? It's gotta be one of the two.

Shannon Love|5.11.09 @ 4:21PM|#

I think they may have already continued this idea to the next logical step.

I woke up on front lawn this morning wearing a radio collar like a bear.

|5.11.09 @ 4:23PM|#

Xeones: "Yo, fuck the District 4 Court of Appeals."

This ruling sprang from empathy, the kind Obama wants his Supreme Court nominee to show.

The court empathized with the police, poor things. They have SO much trouble keeping track of motorists.

|5.11.09 @ 4:27PM|#

Tracking collars wired with explosives would make America safer. Besides being able to track and stop any of us committing crimes, the government could also use the exploding collars to deal with the WoT or the WoD. For instance, if hijackers were to attempt another 9/11, law enforcement could simply explode the collars of a few citizens sitting near the hijackers and save the day!

Number Six|5.11.09 @ 4:34PM|#

WHO IS NUMBER ONE?

stuartl|5.11.09 @ 4:36PM|#

You only have so many bodies and you only want to follow around people who really deserve it (like violent criminals you think are going to strike soon) -- but using GPS tracking could easily allow the police to track just about anyone on a large scale for even the most mundane of things.

But aren't we all in favor of making government more efficient? Won't this allow the police to cut their budgets?

phalkor|5.11.09 @ 4:37PM|#

Paranoia...RISING!

Janet Reno|5.11.09 @ 4:43PM|#

Pro Libertate,

Tracking collars wired with explosives would make America safer. Besides being able to track and stop any of us committing crimes, the government could also use the exploding collars to deal with the WoT or the WoD. For instance, if hijackers were to attempt another 9/11, law enforcement could simply explode the collars of a few citizens sitting near the hijackers and save the day!


Don't know if Richard Dawson will get a new game show with the Obama administration, but next month the new digital TV will be ready for Running Man style news.

Anyone know if this made it to an episode of COPS? http://judicial-inc.biz/7_11_pizza_bomb_bank_robbery.htm

|5.11.09 @ 4:47PM|#

Janet Reno,

Certainly, The Running Man was the leader in exploding collar promotion.

KenK|5.11.09 @ 5:20PM|#

So if I find it on my car is it now mine to do with as I please?

Or will I be billed by the police if it goes missing?

|5.11.09 @ 5:23PM|#

So it's fine for me to put a GPS tracker on a public sponsered vechicle such as a police car?

SKR|5.11.09 @ 5:26PM|#

Thanks Shannon Love I instantly thought something similar. My thought involved feeling a slight pinch on my buttcheek while walking down a public street. Hmm, is that little lump swelling from a bee sting or a subcutaneous gps tacking device shot into my ass by the man. I think I have to go put on my tinfoil hat.

|5.11.09 @ 5:29PM|#

TrickyVic,

It's perfectly fine, so long as you like being tasered.

JB|5.11.09 @ 5:50PM|#

Every government official in that article should assume their car is currently being monitored with a GPS device. I'm sure there are more than a few aspiring hackers in Wisconsin keeping tabs on where those fools go (better tell your wife about that mistress).

JK|5.11.09 @ 6:05PM|#

I was thinking the same thing about this as JB, but more specifically about the District 4 Court of Appeals. Take a look at Judge Paul Lundsten: http://www.wicourts.gov/about/judges/appeals/lundsten.htm . That guys face screams nambla.

A GPS on his PT Cruiser would undoubtedly catch him buggering teen boys at the closest interstate rest stop.

Rhett|5.11.09 @ 7:41PM|#

I think the state court's reasoning in this case is in line with how the U.S. Supreme Court interprets and applies the 4th Amendment. The problem with the approach is that the Court often focuses on the nature of the information obtained, not how the police obtained the information. To reinvigorate the 4th courts need to look at both. Under the common law at the time of the founding, this would have undoubtedly lead to trespass charges against the police. http://rhettlemmel.com

KipEsquire|5.11.09 @ 9:38PM|#

Not the first time:

http://www.kipesquire.net/2007/12/court-finds-unlimited-police-power-to-plant-gps-on-vehicles/

Granite|5.12.09 @ 10:57AM|#

I can't help but empathize with the court hear. 'According to the law, this isn't really illegal, but we think it should be, because it represents a gap in tech between when the law was written and today'.

That's certainly better than making up ways to apply the old laws to new situations.

Almost feels like we need some Constitutional Ammendments to clarify where new technology falls.

|5.12.09 @ 5:17PM|#

New York's highest court just ruled exactly opposite.

Law professor Ann Althouse had a nice little post on it:

http://althouse.blogspot.com/2009/05/are-police-free-to-attach-gps-device-to_12.html

|5.18.09 @ 5:11PM|#

Sometimes it's necessary to have GPS tracking on your car. I bought one from brickhousesecurity.com to track my husband and I think it's made our marriage even stronger because now there is no suspicion.