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Group urges U.S. to require warrants for location-based tracking

Prolonged warrantless tracking of individuals a violation of Fourth Amendment rights, contends The Constitution Project

September 21, 2011 06:27 PM ET

Computerworld - Law enforcement officials should be required to obtain a warrant based on probable cause before using GPS or other electronic location tracking to follow individuals, a bi-partisan group said in a report released today.

The 13-page report released by The Constitution Project's Liberty and Security Committee also calls on Congress to amend the Electronic Communications Privacy Act (ECPA) to make probable-cause warrants mandatory before accessing an individual's cell phone location data.

The committee's 24 members include two former members of Congress, former FBI director William Session, a former U.S. Court of Appeals judge and a former chair of the American Conservative Union.

In the report, the committee contended that prolonged use of electronic tracking technologies without a warrant violates Fourth Amendment protections against unreasonable search and seizure.

"GPS technology has made pervasive and continuous location tracking possible in a way that was never before feasible relying solely on human law enforcement officers," the report concluded.

Location tracking technologies enable the collection of vast quantities of data that can be stored, searched and analyzed for patterns of behavior that reveal very private and personal information. Such technologies allow law enforcement to get a peek at not just a day in the life of someone they are tracking, but the person's very way of life, the report noted.

"These technologies convert traditional 'tailing' of a suspect into a new and different type of surveillance, paired with new and powerful digital analytics tools, that alters our analysis of expectations of privacy in a public place," the report said.

The report highlights a case that the Supreme Court is scheduled to hear later this year involving the government's authority to conduct prolonged GPS tracking of suspects in criminal cases without first obtaining a court warrant.

The case involves the FBI's use of a GPS tracking device to continuously monitor the movements of Antoine Jones, a suspect in a drug investigation, for four weeks. The device, which was used without a court warrant, provided information that was later used to convict Jones.

Jones argued that the evidence gathered against him should be thrown out because it was gathered via warrantless tracking, which he contends violated his Fourth Amendment rights.

Prosecutors have argued that the GPS device was used in accordance with precedent established in earlier cases involving warrantless GPS tracking.

In a 121-page memo, the U.S. Department of Justice urged the Supreme Court to approve warrantless surveillance because GPS technologies are advances that merely help law enforcement do its job better.

In its report, The Constitution Project said that if the Supreme Court sides with the government in the case, the Congress should enact legislation requiring court warrants for any location tracking lasting more than 24-hours.

"We believe that such transformative changes in technology must be recognized in the law to ensure that Fourth Amendment protections continue to apply," the committee noted.

The report comes at a time when courts around the country have appeared split on the issue of warrantless location tracking. While some courts have upheld the government's use of warrantless tracking of suspects in criminal cases, others have rejected such tracking.

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

Read more about Security in Computerworld's Security Topic Center.



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