GPS tracking and the expectation of privacy

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A federal judge has just ruled that the police don't need a warrant to attach a GPS tracker to your car:
Police suspected the lawyer of ties to a local Hells Angels Motorcycle Club that was selling methamphetamine, and they feared undercover officers would not be able to infiltrate the notoriously tight-knit group, which has hazing rituals that involve criminal activities. So investigators stuck a GPS, or Global Positioning System, bug on Moran's car, watched his movements, and arrested him on drug charges a month later.

A federal judge in New York ruled last week that police did not need court authorization when tracking Moran from afar. "Law enforcement personnel could have conducted a visual surveillance of the vehicle as it traveled on the public highways," U.S. District Judge David Hurd wrote. "Moran had no expectation of privacy in the whereabouts of his vehicle on a public roadway."

Now, I'm aware that "expectation of privacy" is a technical legal term, but let's go with its ordinary meaning for a second. It's always been the case that in principle the police could track where you were on a public roadway by following you around in a car. However, it was really expensive and so they couldn't do it on any large scale. So, you could reasonably expect that unless they thought you'd done something really bad, the police didn't know where you were.

However, in the past 10-20 years it's gotten increasingly cheap for the police to track you, to the point where they can do it with a gizmo that probably costs no more than $100, so the amount of tracking you can reasonably expect to be subject to has increased quite a bit. Now, certainly one can think that it's a good thing for the police to be able to mount better surveillance, but I don't think it's reasonable to act as if the fact that you could in principle have been followed around automatically implies that it's OK for the police to be able to plant a tracking device on your car. It's kind of like saying that I should be OK with my neighbor having an atomic bomb because in principle he could have clubbed me to death with piece of wood.

Acknowledgement: Kevin Dick originally made this point about cost and its relationship to the probability of surveillance.

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The problem with requiring a warrant for GPS tracking is that it eliminates the possibility of a police officer simply spotting a suspicious car and tracking it by GPS. If your concern is that the police could start tracking thousands of cars gratuitously, then a better solution would be to limit the number of GPS units the police can track at a given time (or the number of "warrantless" GPS units tracked).

In any event, I don't know how effective this technique will be in the long run, since it will likely be fairly easy for a criminal intending to drive to a suspicious or secret location (or simply to escape police surveillance) to scan his or her car for GPS trackers.

Sure, the Angels have no expectation of privacy on the public roads, but isn't it reasonable for them to expect that their vehicles will not have devices surreptitiously attached to them by the government?

If the police deploy a panopticon, I suppose they can use it to keep an eye on us while we are in public places. When the panopticon works only when we need to carry around a transponder, I'd hope they'd need a court order before they can plant one on us.

I'll have to read the opinion of the court, but it seems to me that hanging this on expectation of privacy is lame.


I think you and I actually agree on this point, which is surely a sign of the apocalypse. I'd be fairly happy with making the GPS trackers that the police use artificially scarce/expensive--though I rather expect you and I disagree about how high the barrier should be.

You agree??? Wait--I must have missed something... :^)

Actually, our positions may differ on one small point--I don't think trackers should be artificially scarce or expensive--in fact, it might not be a bad idea for every police officer to have one handy, in case an opportunity arises. But it might make sense to limit tracking to some maximum number of vehicles at a time. Since the tracking would no doubt be done via some centralized system, the limitation could be placed there. The limitation could also be relaxed, conditional on some kind of approval, to cover large-scale investigations--which would in any event be pre-planned, and hence amenable to procedural checks.

One more advantage to this approach--the control could be completely administrative or legislative, involving regulations and review boards rather than unaccountable, power-hungry judges.

Our definition of privacy is radically different from our founders, and it is becoming difficult for us to differentiate. It is clear that the founders wanted to protect citizens from "invasive violations of privacy", where gathering information on you meant trashing your house, ruining your privacy, and harsh interrogations. They thought of invading someones privacy and making their life directly more painful as one and the same.

"Surreptitious violations of privacy" are newer and constitutionally vaguer. It is quite possible now to collect intimate information on people in many ways that they don't know and don't directly effect them (eavesdropping, financial records, the GPS tracker). Our legislatures have written rules about eavesdropping, but it's still very vague about whether we have a right against this non-invasive privacy violations, since the people who wrote our "rights" never really considered this (or its hard to distinguish what they hated, the invasiveness or the privacy violation). The current supreme court seems to lean in favor of a broad interpretation of privacy, as evidenced by Kyllo vs. US where the police were using infrared scanners to scan for evidence of growing pot, and the supreme court said that couldn't be done without a warrant.

But it's an issue that I feel there is definitely no easy constitutional view on.

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