Supreme Court to Determine Constitutionality of Government GPS Tracking

Published August 24, 2011

In 1994, the Global Positioning System became fully operational. Seventeen years later, concerns are arising about the government-maintained satellite tracking system being used by law enforcement to violate civil rights.

There have been several cases within the last two years in which law enforcement agents have put GPS devices on suspects’ vehicles without a warrant. Such incidents have triggered a flurry of legal action, with appeals courts unable to reach a consensus.

The Supreme Court announced recently it would rule on the issue.

Seen As Threat to Privacy
Andrew Scott, a former police chief and current law enforcement consultant from Florida, questions whether placing a GPS device on a car qualifies as a “search.”

Scott said police need “probable cause” to get a warrant but don’t have to meet that threshold for a police officer to follow a suspect.

“Nothing prevents an officer from following a car,” Scott said. “This is a similar type of concept, but they are just doing it electronically. Law enforcement isn’t going to throw a GPS device on a law-abiding person simply because they want to follow that person.”

Scott said a GPS device does the same job as a police officer, just “better and more efficiently.”

But Jacob Sullum, a senior editor at Reason magazine, says use of GPS is a threat to privacy precisely because it is better and more comprehensive than a law enforcement officer.

Sullum said police don’t have the resources to track every person through manpower but could track countless people by use of GPS technology.

“In theory, you could track everybody,” Sullum said. As technology becomes continually less expensive, law enforcement could create a database of where everyone is at any time, he added.

‘Constitutes Unlawful Search’
Some civil rights organizations say warrantless GPS devices go too far.

The Council on American-Islamic Relations filed a lawsuit against the FBI after a Muslim in California found a GPS tracking device that was placed on his car without a warrant. Citing the Fourth Amendment, CAIR is asking the court to bar the FBI from using a GPS tracking device without a search warrant.

In May the ACLU of Delaware filed a brief with the state’s Supreme Court stating law enforcement agents should not be permitted to attach GPS devices on vehicles without a search warrant. A Delaware Superior Court ruled in 2010 that evidence seized at a traffic stop should be suppressed after law enforcement officials placed a GPS device on a man’s vehicle before pulling him over.

The court stated, “[A]bsent exigent circumstances, the warrantless placement of a GPS device to track a suspect 24 hours a day constitutes an unlawful search.”

The state had argued people don’t have a “legitimate expectation of privacy” when travelling on public roads. The court responded by stating prolonged GPS surveillance “provides more information than one reasonably expects to expose to the public,” and, “It takes little to imagine what constant and prolonged surveillance could expose about someone’s life even if they are not participating in any criminal activity.”

Tracking Innocent Individuals
The U.S. Department of Justice has sided with law enforcement on the issue. The DOJ claimed in a petition filed with the U.S. Supreme Court this past April that people have no reasonable expectation of privacy on a public road “even if scientific enhancements allow police to observe this public information more efficiently.”

The courts have yet to reach a consensus.

The U.S. 7th and 9th Circuit Court of Appeals both ruled law enforcement is allowed to use a GPS device without a warrant, whereas the 4th Circuit Court ruled such warrant searches violate the Fourth Amendment. The Obama administration appealed the 4th Circuit Court’s ruling, and the U.S. Supreme Court announced it would take on the case.

“If there is no judicial review for a program that collects a lot of personal information for a lot of innocent people, that’s trouble,” Sullum said. “Do we really want to allow that?”

Tom Gantert ([email protected]) is senior capitol correspondent for the Mackinac Center for Public Policy in Midland, Michigan.