Court rejects warrantless GPS tracking

Extended GPS tracking without warrant found by U.S. Court of Appeals to be a violation of Fourth Amendment rights

The U.S. Court of Appeals for the District of Columbia circuit has rejected claims by the government that federal agents have the right to conduct around-the-clock warrantless GPS tracking of suspects.

In a 41-page ruling last Friday, the appellate court dismissed government arguments about the constitutional validity of such searches and maintained that the evidence gathered from the warrantless GPS tracking in the case was obtained in violation of the Fourth Amendment.

"It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work," Judge Douglas Ginsburg wrote on behalf of the three-judge panel that reviewed the case.

"It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person's hitherto private routine," Judge Ginsburg wrote.

The case involves Antoine Jones and Lawrence Maynard, two individuals who were convicted in a joint trial in 2008 on charges of possessing and conspiring to distribute more than 50 kilograms of cocaine. Jones was arrested in 2004. Maynard was added as a defendant in superseding indictments in March 2006 and pled guilty shortly thereafter.

In a trial in 2006, Jones was acquitted of all charges against him, but the jury deadlocked on the conspiracy charge and a mistrial was declared. Maynard was allowed to withdraw his plea shortly after that.

However, in 2007, prosecutors filed another superseding indictment charging both Jones and Maynard with conspiring to possess cocaine with the intent of distributing it. Both were found guilty in the trail that followed.

Jones appealed the verdict claiming that the evidence used against him had been gathered from a GPS device illegally attached to his Jeep that continually tracked his movement, 24-hours a day, for a full month. He argued that the warrantless use of the GPS device violated his rights against unreasonable search and seizure.

Prosecutors argued that federal agents had used the GPS devices in accordance with precedent established by several other courts in cases involving warrantless GPS tracking.

One of the cases the government relied on to make its argument involved the use of a beeper by federal agents to track the movement of a suspect in an illicit drug manufacturing case. In that case, federal agents without obtaining a warrant, had planted a beeper in a drum being transported by the suspect, and then used it to track his movements.

The court upheld the use of the beeper, and ruled that by driving on public roads, the suspect had no reasonable expectation of privacy. Several other cases were cited by the government to support the warrantless GPS tracking of Jones.

In rejecting such comparisons, the appellate court last week noted that none of the previous cases really involved the sort of continuous monitoring involved in the Jones case.

While it is possible to justify the warrantless use of GPS devices under certain circumstances, the sort of unfettered use that the government was trying to justify in this case is non-supportable, the court ruled.

Continuous monitoring of an individual's movements over a period of time can reveal a lot of very personal information about that person and violate his reasonable expectation of privacy, the court ruled.

"Prolonged GPS monitoring reveals an intimate picture of the subject's life that he expects no one to have short perhaps of his spouse," Judge Ginsburg wrote. "The intrusion such monitoring makes into the subject's private affairs stands in stark contrast to the relatively brief intrusion at issue," in previous cases.

The ruling was welcomed by rights groups such as the Electronic Frontier Foundation (EFF), which had filed an amicus brief in the case. "The court correctly recognized the important differences between limited surveillance of public activities ...[and] the sort of extended, invasive, pervasive, always-on tracking that GPS devices allow," EFF civil liberties director Jennifer Granick wrote in a blog post.

Granick expressed hope that last week's decision would be used as an example by courts that are grappling with questions of whether the government needs to obtain a warrant before using an individual's cell phone to track the person.

The EFF has posted the ruling online.

Jaikumar Vijayan covers data security and privacy issues, financial services security and e-voting for Computerworld. Follow Jaikumar on Twitter at  @jaivijayan or subscribe to Jaikumar's RSS feed . His e-mail address is jvijayan@computerworld.com.

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