When we fret over surveillance and tracking by government agencies — the techniques they use and the policies and legal protections that govern snooping — we usually think in terms of making sure the powers-that-be cross their "t"s and dot their "i"s before going after their intended targets. Increasingly, though, surveillance scoops up far more people than just the person named on the warrant or subpoena (assuming such a piece of paper is even involved). But the legal status of such collateral subjects of scrutiny isn't clearly defined. That has the Electronic Frontier Foundation arguing before a Massachusetts court that a man tracked by police (and subsequently charged with crimes) when he was riding in the vehicle of the actual target of a surveillance operation should be recognized as having standing to challenge the use of a GPS device and the evidence thereby gathered. According to the EFF:
Although the trial court agreed that police had misrepresented the facts in order to get the search warrant, it upheld it anyway. Additionally, the court found that Rousseau had no legal ability – or standing – to challenge the GPS evidence because he was merely a passenger. But in an amicus brief filed today, EFF argues that critical privacy questions affect everyone who is traveling in a tracked vehicle, and they should all have the opportunity to protect themselves and their location data, whether they are a driver or passenger in the car.
Remember, Rousseau faced criminal charges based on the evidence gathered by police. He clearly has a powerful interest in whether the authorities played by the rules when they conducted their surveillance. By the same token, a ruling that an "accidental" subject of surveillance has no legal standing to challenge snooping operations gives the police serious incentive to creatively target their operations to the people around an actual suspect, in hopes of immunizing themselves from court challenges. As surveillance technology becomes both more sophisticated and less discriminating, that's likely to be a growing concern. The EFF again:
Police are increasingly employing persistent locational tracking – through GPS, cell phone records, or other, more aggressive tools like cell tower dumps and "stingrays" – as part of routine criminal investigations. As this kind of evidence-gathering becomes more widespread, it's important to ensure that individuals who are targets of the data-collection dragnet have the legal right to challenge whether the surveillance has been done properly.
The "stingrays" mentioned by the EFF are widgets that masquerade as cell towers to ping all of the mobile devices on a given network within their range, and thereby locate them. That's a lot of people scooped up by "accident." If such by-the-way subjects don't have standing to challenge wide surveillance, people might be better off if they're the actual targets of a surveillance operation. At least then, they have legal rights.