Consumer Federation of California

I’ve been
covering this case here for a long time now….and its finally about to reach
its conclusion. Before I get to the USA Today article detailing the case and
its Tuesday Supreme Court hearing, let me summarize some of what I’ve written on it in the past.

The case in question involved police covertly tracking a
suspected cocaine dealer’s car using
a GPS device for an extended period of time without getting a warrant. Thanks
to this tracking, the suspect was initially convicted. But, a ruling by the D.C.
Court (by Judge Ginsburg) of Appeals overturned that decision, arguing that the
use of a secret GPS tracking device on the man’s vehicle for two months
violated the Fourth Amendment’s protection against unreasonable searches and
seizures. The idea being, no one wants to feel as if a government agent is
following you wherever you go – be it a friend’s
house, a place of worship, or a therapist’s
office – and certainly innocent Americans shouldn’t
have to feel that way.

The problem was that two federal appellate courts had first
upheld the use of GPS devices without warrants on the grounds that we have no
expectation of privacy when we are in public places and that tracking
technology merely makes public surveillance easier and more effective. Now this case is scheduled to be heard by the Supreme
Court. 

Jeffrey Rosen, a law professor at George Washington
University, made some
important points on this case a few months back I think are worth repeating. He
noted, "Judge Ginsburg realized that ubiquitous surveillance for a month
is impossible, in practice, without technological enhancements like a GPS
device, and that it is therefore qualitatively different than the more limited
technologically enhanced public surveillance that the Supreme Court has upheld
in the past (like using a beeper to help the police follow a car for a 100-mile
trip)…If the court rejects his logic and sides with those who maintain that we
have no expectation of privacy in our public movements, surveillance is likely
to expand, radically transforming our experience of both public and virtual
spaces.

For what’s at stake in the Supreme Court case is more than just the future of
GPS tracking: there’s also online surveillance. Facebook, for example,
announced in June that it was implementing face-recognition technology that
scans all the photos in its database and automatically
suggests identifying tags that match images of a user’s friends with their
names. (After a public outcry, Facebook said that users could opt out of the tagging
system.) With the help of this kind of photo tagging, law enforcement officials
could post on Facebook a photo of, say, an anonymous antiwar protester and
identify him. 

To preserve our right to some degree of anonymity in public,
we can’t rely on the courts alone. Fortunately, 15 states have enacted laws
imposing criminal and civil penalties for the use of electronic tracking
devices in various forms and restricting their use without a warrant. And in
June, Senator Ron Wyden, Democrat of Oregon, and Representative Jason Chaffetz,
Republican of Utah, introduced the Geolocation
Privacy and Surveillance Act, which would provide federal protection
against public surveillance.

Their act would require the government to get a warrant before acquiring the
geolocational information of an American citizen or legal alien; create
criminal penalties for secretly using an electronic device to track someone’s
movements; and prohibit commercial service providers from sharing customers’
geolocational information without their consent ‘ a necessary restriction at a
time of increasing cellphone tracking by private companies. 

Click
here to read more .

As
previously laid out in the article in Wired Magazine, its not any one trip that tells the story, its connecting numerous ones together to form a detailed profile, "Repeated visits
to a church, a gym, a bar, or a bookie tell a story not told by any single
visit, as does one’s not visiting any of these places over the course of a
month. The sequence of a person’s movements can reveal still more; a single
trip to a gynecologist’s office tells little about a woman, but that trip
followed a few weeks later by a visit to a baby supply store tells a different
story."

So with that backdrop,
here’s the latest on the upcoming Supreme Court case:

In a potentially groundbreaking case on high-tech tracking
by police, the Supreme Court will decide whether constant surveillance is such
an intrusion on people’s lives that
police need a warrant before attaching a GPS device to a person’s car.

The case, to be heard Tuesday, tests law enforcement’s use of the latest technology to fight crime as it
raises the specter of a "Big Brother" government knowing one’s every move. GPS tracking lets police engage in
round-the-clock surveillance ‘ without a person’s
knowledge ‘ over a prolonged period that could seldom be matched by cops on a
beat or other traditional observation.

Global Positioning
System receivers, originally developed for military use, rely on a
constellation of satellites in fixed orbits. Receivers on the ground use
satellite transmissions to calculate the latitude and longitude of a location.
Data can be transmitted remotely to police computers and stored.

Solicitor General Verrilli is urging the high court to rely
on its 1983 ruling in United
States v. Knotts, which said the use of a beeper
to track a suspect driving to a drug lab was not a search under the Fourth
Amendment. Verrilli says the lower court hearing Jones’
appeal wrongly abandoned a longstanding line between private information and
information that is "exposed to the public," for example, on
roadways.

The lower court said, however, that a month of detailed
tracking could not be considered "public" in the usual sense because
it was unlikely anyone would actually have observed all of Jones’ travels. Verrilli counters that information does
not become "less public" simply because it is collected with in a
more sophisticated technology.

The high court will also be looking at whether just the
installation of the device violated Jones’
rights. Justice Department lawyers say installing the GPS device was permitted
because it didn’t interfere with
Jones’ driving or take up any space
inside the vehicle.

Stephen Leckar, representing Jones, tells the justices in
his brief that unrestrained GPS monitoring has become "a grave threat to
expressive and political association, as well as to the personal privacy and
security of every individual in the country."

Click here to read more.

Its important to consider this case in
the larger context of an increasingly unjust economic system (AND Judicial
system) that’s leading people,
literally, to the streets in protest. We must, at all costs, now more than
ever, stand firm against the ever encroaching and watchful eye of both
government and corporate interests.

But don’t just
take my word for it, check out a recent post I did on the fact that $150
million of taxpayer money has gone to funding a government facility in lower Manhattan where Wall
Street firm representatives have joined the New York Police Department to spy
on  law-abiding citizens simply taking advantage of their First Amendment
rights.

As Pam Martens wrote, "According to newly unearthed
documents, the planning for this high tech facility on lower Broadway dates
back six years. In correspondence from 2005 that rests quietly in the
Securities and Exchange Commission’s archives, NYPD Commissioner Raymond Kelly
promised Edward Forst, a  Goldman Sachs’ Executive Vice President at the
time, that the NYPD ‘is committed to the development and implementation of a
comprehensive security plan for Lower Manhattan . . . One component of the plan
will be a centralized coordination center that will provide space for full-time,
on site representation from Goldman Sachs and other stakeholders.’

And then there’s
Naomi Wolfe, who was recently arrested for peacefully protesting herself,
making another critical point, writing, "America is waking up to what was
built while it slept: Private companies have hired away its police (JPMorgan
Chase gave $4.6m to the New York City Police Foundation); the federal Department
of Homeland Security has given small municipal police forces military-grade
weapons systems; citizens’ rights to
freedom of speech and assembly have been stealthily undermined by opaque permit
requirements."

Clearly, this dispute over GPS tracking and whether a warrant should be required, particularly because it deals with
technology that is becoming increasingly ubiquitous (i.e. smartphones,
vehicles), will have an enormous impact on future fights over police tactics
and our 4th Amendment rights.

Judge Ginsburg, in her
decision to overrule the appellate court decision, perhaps said it best: "A
single trip to a gynecologist’s
office tells little about a woman, but that trip followed a few weeks later by
a visit to a baby supply store tells a different story…A person who knows all
of another’s travels can deduce
whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an
unfaithful husband, an outpatient receiving medical treatment, an associate of
particular individuals or political groups — and not just one such fact about
a person, but all such facts."

Let’s also
remember, back in 2009 we learned that Sprint received 8 million law
enforcement requests for GPS location data in just one year. While that issue
is slightly different than the one headed to the Supreme Court (it was based on
putting a GPS tracking device in the suspects car, rather than tracking the
cell phone), the general concerns are applicable: Tracking citizens without a
warrant (or even probably cause!). We know these GPS chips can locate a person
to within about 30 feet. They’re
also able to gather less exact location data by tracing mobile phone signals as
they ping off cell towers.

The ACLU’s Catherine Crump recently provided one more
argument for why the government should not win this case, stating, "What’s
at stake in the case is not whether it’s OK for the government to track the
locations of cell phones; we agree that cell-phone tracking is lawful and
appropriate in certain situations. The question is whether the government
should first have to show that it has good reason to think such tracking will
turn up evidence of a crime. We believe it should. This case is not about
protecting criminals. It’s about protecting innocent people from unjustified
violations of their privacy."

And now we await the decision from a Supreme Court that consistently rules in favor of corporations and a more powerful national
security state…and nearly always against the interests of the public good. As usual, all eyes will be on Anthony Kennedy.