October 18, 2010
GPS Source Of Debate For Tracking Suspects
A 20-year-old computer salesman and community college student found a global position system (GPS) tracking device underneath his car during a routine oil change earlier this month.
According to the Associated Press (AP), mechanics informed Yasir Afifi of the device while his car was being serviced, who then helped him remove it. This prompted FBI agents to show up two days later to his house to reclaim their property.
One federal judge said the use of the device was straight out of George Orwell's "1984" novel.
"By holding that this kind of surveillance doesn't impair an individual's reasonable expectation of privacy, the panel hands the government the power to track the movements of every one of us, every day of our lives," Alex Kozinski, the chief judge of the 9th U.S. Circuit Court of Appeals, wrote in a blistering dissent in which a three-judge panel from his court ruled that search warrants weren't necessary for GPS tracking.
However, other federal and state courts believe differently.
Law enforcement advocates say the devices eliminate the need for stakeouts and "tails" with unmarked police cars.
Investigators do not need a warrant to use GPS tracking devices in California, which privacy advocates say is troublesome.
The federal appeals court in Washington D.C. said in August that investigators must obtain a warrant for GPS in tossing out the conviction and life sentence of Antoine Jones, a nightclub owner convicted of operating a cocaine distribution ring. That court said that the accumulation of four-weeks of data collected from a GPS on Jones' Jeep amounted to a government "search" that required a search warrant.
Judge Douglas Ginsburg said the technology helped make all the difference between surveying a suspect on public property and a search needing court approval.
"First, unlike one's movements during a single journey, the whole of one's movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil," Ginsburg wrote. The state high courts of New York, Washington and Oregon have ruled similarly.
The Obama administration asked the D.C. federal appeals court last month to change its ruling, saying the decision was "vague and unworkable." The administration said that investigators will lose access to a tool they now use "with great frequency."
The 9th Circuit decided on another case that agents could have gathered the same information by following Juan Pineda-Moreno, who was convicted of marijuana distribution after a GPS device alerted agents he was leaving a suspected "grow site."
"The only information the agents obtained from the tracking devices was a log of the locations where Pineda-Moreno's car traveled, information the agents could have obtained by following the car," Judge Diarmuid O'Scannlain wrote for the three-judge panel.
Chief Judge Kozinski said that GPS technology is far different from tailing a suspect on a public road, which requires the active participation of investigators.
"The devices create a permanent electronic record that can be compared, contrasted and coordinated to deduce all manner of private information about individuals," Kozinksi wrote.
Legal scholars say that the U.S. Supreme Court will ultimately resolve the issue because so many courts disagree.
George Washington University law professor Orin Kerr told AP that the issue boils down to public vs. private. Kerr believes the U.S. Supreme Court will decided that no warrant is needed to use the Device.
"The historic line is that public surveillance is not covered by the 4th Amendment," Kerr told the news agency.