Today the Third Circuit Court of Appeals ruled that law enforcement agents must obtain a warrant based on probable cause to attach a GPS device to a car and track its movements. The case, United States v. Katzin, is the first in which a federal appeals court has explicitly held that a warrant is required for GPS tracking by police. The ACLU submitted an amicus brief in the case (joined by the ACLU of Pennsylvania, Electronic Frontier Foundation, and National Association of Criminal Defense Lawyers) and presented oral argument to the court in March.
In this case, police suspected three brothers, Harry, Mark, and Michael Katzin, of robbing several pharmacies. Without getting a warrant from a judge, FBI agents attached a GPS tracking device to Harry Katzin’s car in order to follow its movements. The government used the GPS device to track the Katzins as they drove to and from another pharmacy, and arrested them as they drove away. Before trial, the Katzins argued that police had violated their Fourth Amendment rights by using the GPS tracker without a warrant, and the district court agreed. Today’s ruling affirms that decision.
Last year, in United States v. Jones, the Supreme Court unanimously held that attaching a GPS tracker to a car to follow its movements is a search under the Fourth Amendment. The Court did not decide whether police need a warrant to conduct such a search, however, and the government argued in this case that an exception to the usual requirement of a warrant should apply. The Third Circuit rejected the government’s arguments, explaining that GPS tracking is a “vastly broader endeavor” than the kinds of limited searches that courts have allowed without warrants. In particular, the court held that the “automobile exception” to the warrant requirement does not apply to GPS tracking. The exception is designed to permit warrantless searches of cars to reveal contraband before the cars can drive away. But, as the court explained, that narrow exception does not “permit [police] to leave behind an ever-watchful electronic sentinel in order to collect future evidence” without judicial oversight.
The court also rejected a second argument made by the government: that the so-called “good faith” exception should permit use of evidence derived from the GPS tracking, even if it violated the Fourth Amendment. Because the GPS tracker was attached to the Katzins’ car before the Supreme Court decided Jones, and before the Third Circuit had addressed the issue, the government argued that FBI agents couldn’t have known that using a GPS device might raise questions under the Fourth Amendment, and therefore they acted in good faith by choosing not to seek a warrant. The court explained that this does not excuse police from the requirement of getting a warrant:
Where an officer decides to take the Fourth Amendment inquiry into his own hands, rather than to seek a warrant from a neutral magistrate — particularly where the law is as far from settled as it was in this case — he acts in a constitutionally reckless fashion. Here, law enforcement personnel made a deliberate decision to forego securing a warrant before attaching a GPS device directly to a target vehicle in the absence of binding Fourth Amendment precedent authorizing such a practice. . . . Excluding the evidence here will incentivize the police to err on the side of constitutional behavior and help prevent future Fourth Amendment violations.
Today’s opinion offers a full-throated defense of the Fourth Amendment, and installs an important safeguard against unjustified government surveillance. As courts around the country consider challenges to warrantless location tracking by police (whether using GPS devices or cell phone signals), they would do well to follow the Third Circuit’s lead.
None are more hopelessly enslaved than those who falsely believe they are free.
Think of your smart phone as being equal to or the same as, an ankle monitoring bracelet forced on an alleged criminal.
“An ankle monitor (also known as a tether, or ankle bracelet) is a device that individuals under house arrest or parole are often required to wear. At timed intervals, the ankle monitor sends a radio frequency signal containing location and other information to a receiver.”
That sounds exactly like your smart phone?
The one thing that makes it different is that a criminal is forced to wear such a device and you are choosing to use and pay for own tracking! You are wearing, carrying, accessorizing your own electronic monitoring device. What a gift to the powers that shouldn’t be!
None are more hopelessly enslaved than those who falsely believe they are free.
Let’s peruse a checklist of personal data collected from you by Apple technology shall we?
- Voiceprints (SIRI/phone) ✓
- Fingerprint(s) ✓
- Your exact geo-location via GPS ✓
- Up-to-date pictures of you, your friends and family ✓
- Email contents ✓
- Names, addresses and phone numbers of all your contacts ✓
- Every detail of the items stored in your Calendar ✓
- Surveillance audio taken from the built-in microphone ✓
- Your browsing history and bookmarks ✓
In recent weeks, two cert petitions were filed seeking review of whether the Fourth Amendment covers police searches of cellphone records upon arrest.
From mobile phone and GPS tracking to license plate reading and domestic surveillance drones — not to mention recent revelations of widespread abuse of surveillance capabilities by the National Security Agency — these cases and many others highlight major questions that remain unanswered regarding how privacy rights of Americans can co-exist with the use of rapidly evolving technologies.
State and federal law enforcement agencies have wasted no time seizing on gaps and omissions in established legal precedent to justify vast, routine surveillance of the American public which tests Fourth Amendment rights.
On July 30, a petition was filed in Riley v. California challenging a previous ruling in a California appellate court that affirmed the petitioner’s convictions, which stemmed in part from a questionable search of his smartphone in 2009 following a traffic stop for expired license plates. And late last week, the US Department of Justice filed a petition in United States v. Wurie asking for review of a First Circuit Court of Appeals ruling that police needed a warrant to access a suspect’s phone records. Regarding Wurie, the government contends a cell phone is no different from any other item on a suspect at the time of arrest. The search pertaining to Wurie occurred in 2007.
On the surface, the two cases have much in common. But in Riley, the phone in question is a smartphone – a Samsung Instinct M800. In Wurie, the cellphone was a Verizon LG flip-phone incapable of maintaining the breadth of information – including internet searches, email, photos and other media – that a smartphone can store.
As of May, Pew Research Center found that 91 percent of Americans own cellphones, and 61 percent of those cellphones are smartphones.
GPS technology has received more scrutiny from courts than cellphones have in recent years. Last week, the Justice Department appeared before a federal court defending its right to shield legal memos that provide guidance to federal prosecutors and investigators for how to use GPS devices and other surveillance technologies from the public. In a sense, the memos were released upon a Freedom of Information Act request by the American Civil LIberties Union (ACLU), though their contents were heavily redacted.
The memos (read here and here) were legal interpretations of a January 2012 Supreme Court ruling in United States v. Jones in which the court ruled the use of GPS technology to track a car’s movements constitutes a “search” within the parameters of the Fourth Amendment. Upon release of the indecipherable legal memos, the ACLU filed a lawsuit seeking the full, uncensored guidelines.
“While we agree that executive branch lawyers should be able to freely discuss legal theories, once those opinions become official government policy the public has an absolute right to know what they are,” wrote Brian Hauss, legal fellow with the ACLU’s Speech, Privacy and Technology Project. “Otherwise, the government is operating under secret law that makes accountability to the people impossible.”
The ruling in United States v. Jones left many unanswered questions regarding the use of other location-monitoring technologies pertaining to, for example, the tracking of cellphones or the use of license-plate readers – not to mention the use of surveillance drones in the US. In addition, the Jones ruling fell short of even determining whether a warrant is necessary to use GPS devices.
Building on the Jones decision, New Jersey recently became a state ahead of the curve in defining rules for law enforcement and privacy rights in the digital age. The New Jersey Supreme Court ruled in July that state police must have a search warrant before obtaining tracking information from cellphone providers.
“Using a cellphone to determine the location of its owner can be far more revealing than acquiring toll billing, bank, or internet subscriber records,” Chief Justice Stuart Rabner wrote in the case’s opinion. “Details about the location of a cellphone can provide an intimate picture of one’s daily life and reveal not just where people go – which doctors, religious services and stores they visit – but also the people and groups they choose to affiliate with. That information cuts across a broad range of personal ties with family, friends, political groups, health care providers and others.”
In June, Montana became the first state to require police to obtain a warrant before tracking a suspect’s cellphone.
In March 2012, the ACLU reviewed records from over 200 local police departments, finding vast, aggressive use of cellphone tracking for emergency and nonemergency uses.
Another ACLU report, released in July of this year, queried around 600 local and state police departments (and other state and federal agencies) via public records requests to assess how these agencies use automatic license plate readers. The civil liberties organization found massive databases of innocent motorists’ location information gleaned through hundreds of millions of “plate reads” by the ubiquitous readers. Data is often stored for an indefinite period of time, revealing just how easy it is for law enforcement – as well as many private companies – to track any license plate with few legal restrictions in place to stop them.
For example, for every one million plates that were read in the state of Maryland in the first half of 2012, 2000 (0.2 percent) were hits, mostly regarding registration or emissions issues. Of those 2000 hits, less than 3 percent (47) were potentially connected to more serious crimes.
In addition, much of this network of readers throughout the nation is in place thanks to a large amount of federal funding – $50 million in the last five years.
Approval of licenses for domestic drones has begun, as RT has reported, even though solid rules for their eventual use in American skies have yet to materialize from either Congress or the Federal Aviation Administration. The FAA expects as many as 30,000 drones in American airspace by 2020.
For now, many local law enforcement agencies are leading the quest for drone-use approval, though requests for commercial drones are mounting. As of February 15, 2013, there were 327 active drone certifications despite there being no regulatory framework in place. However, the FAA did get around to certifying two types of unmanned aircraft for civilian use in the US in late July.
In the meantime, federal government agencies have used drones domestically both out in the open and in secret. The Federal Bureau of Investigation has admitted to already using surveillance drones despite no established law or guidelines for their use. The US Department of Homeland Security has used surveillance-capable drones along the border for years, even allowing other federal agencies to use its fleet to the tune of 250 times in 2012 alone, The New York Times reported.
Cities across America are equipping their public transport systems with audio recording devices, potentially storing every word spoken by passengers onboard. Rights activists say the surveillance plan by far exceeds what is necessary for security.
The multimillion dollar upgrade is underway in several US cities, including San Francisco, Eugene, Traverse City, Columbus, Baltimore, Hartford and Athens, reports The Daily, which obtained documents detailing the purchases.
The money partially comes from the federal government. San Francisco, for example, has approved a $5.9 million contract to install the eavesdropping systems on 357 modern buses and historic trolley cars over the next four years, with the Department Homeland Security footing the entire bill. The interception of audio communication will apparently be conducted without search warrants or court supervision, the report says.
The systems would be able to record audio and video from several locations in a bus for simultaneous playback. In Eugene transit officials explicitly demanded microphones capable of distilling clear conversation from the background noise. The recordings would generally be retained for 30 days. One of the systems produced for transport monitoring supports up to 12 high definition cameras, each with a dedicated microphone.
The system may potentially have additional capabilities added like timing the recording with GPS data from an onboard navigator, using facial recognition technology to identify people recorded or connecting wirelessly to a central post for real-time monitoring.
“This technology is sadly indicative of a trend in increased surveillance by commercial and law enforcement entities, under the guise of improved safety,” Ashkan Soltani, an independent security consultant whom the online newspaper asked to review specifications of equipment marketed for transit agencies, told The Daily.
Transport authorities gave various explanations for beefing up surveillance. A San Francisco contractor says the system will “increase passenger safety and improve reliability and maintainability of the system”. An Arkansas transit agency official said it is needed to deflect false complaints from passengers, describing it as “a lifesaver for the drivers”. Maryland officials openly called it a tool for law enforcement.
In some cases the systems are being installed despite resistance of civil liberties activists and lawmakers. In Maryland a legislative committee rejected a bill that would allow the local transport agency to proceed with its plan over concerns that it would violate wiretapping laws. The state’s attorney general advised the transportation agency to use signs warning passengers of the surveillance to help the system withstand a court challenge.
Privacy law experts say audio surveillance systems on buses pushes the boundaries of what is necessary to protect the law.
“It’s one thing to post cops, it’s quite another to say we will have police officers in every seat next to you, listening to everything you say,” said Neil Richards, a professor at Washington University School of Law.
With the microphones, he said, “you have a policeman in every seat with a photographic memory who can spit back everything that was said.”
Public transport is not the only place where citizens are worried about being constantly monitored by keen-eared recording devices. Similar systems combining audio and video recording with wireless connectivity are being installed in lampposts across the US.
- Big Brother’s Listening (thedaily.com)
- Baltimore bus passengers now subject to secretive eavesdropping (rt.com)