Ask the Expert

The U.S. Supreme Court will determine whether the government can track suspects using GPS without a warrant. What they decide could impact your company and customers. Guest expert Khizar A. Sheikh, an attorney with Lowenstein Sandler PC, explains how.

Friday, December 09, 2011

 

 

Question: The U.S. Supreme Court is hearing a case on GPS tracking. Is it important to my business and customers? 

Answer: Yes. The immediate issue in the GPS tracking case (United States v. Jones) is whether the government can use GPS technology to track an individual’s car without a court warrant; that is, without a judge finding that there is probable cause for the government to investigate. The case is important—it could shed light on how the court will view the government’s use of emerging surveillance technologies and data collection against individuals and businesses.

First, some background. Ever since its 1928 ruling in Olmstead v. United States involving a telephone wiretap the Supreme Court has dealt with issues regarding law enforcement’s use of advancing technology. In the Jones case, the constitutional principle at stake is the Fourth Amendment and whether an individual’s “legitimate expectation of privacy” is violated when law enforcement uses a technique or device without a court-approved warrant.

Over the years, the court has been willing to accept that there is an “expectation of privacy” when law enforcement monitor something inside a home (e.g., law enforcement cannot use thermal imaging technology to measure heat from a home without a warrant), but not when it occurs out in the open (e.g., law enforcement can track an individual’s car by following beeper signals). Even though tracking a car using GPS occurs outside a home, the monitoring involves continuous collection and analysis of data that is not readily public. Is that a private or public activity? Clearly, the rapid pace and reach of surveillance technology is blurring the line between the two.

For example, attaching a GPS isn’t the only way that law enforcement can track people’s movements. Many people today with a cell phone are carrying a device that law enforcement can use to track their location (through technology called Stringray tracking). The court’s decision in Jones, therefore, will show how the court approaches surveillance technology, in general, and what powers law enforcement will have to investigate and track electronically individuals and businesses without a formal finding that there exists cause to begin an investigation. 

Indeed, during the Jones oral argument, the potential reach of new technologies and the possibility of Big Brother were clearly on the justices’ minds. The novel “1984” was referenced several times, and the justices raised hypothetical future situations involving the limits of where and when a tracking device could be used without a warrant. The court’s reasoning will impact how the government uses new technologies (such as Stingray) to monitor movements on a 24-hour basis and possibly intercept without warrant an individual’s or business’s electronic data, web traffic, or email (using technologies such as cookies or beacons).

Interestingly, the far-reaching implications of new surveillance technology on electronic communications and location privacy are not just being tackled by the courts, but Congress. The Electronic Communications Privacy Act (ECPA) includes a heightened warrant requirement when the government seeks to intercept electronic communications that are in transit. At the same time, the government’s view is that it doesn’t need a warrant to review stored electronic communications or track movements using mobile phones.

Sen. Patrick Leahy (D-Vt.), chairman of the Judiciary Committee, has introduced a bill, the ECPA Amendments Act (S.1011), which would require the government to obtain a warrant before accessing the content of private electronic communications or before tracking someone’s location in real-time. It will be noteworthy to see if the court and Congress will impose similar requirements for government agents seeking to intercept and monitor individuals’ locations and electronic communications.

The Supreme Court is expected to issue a ruling in Jones sometime early in 2012.

Khizar A. Sheikh is counsel to the law firm of Lowenstein Sandler PC , and a member of the firm’s Privacy Law Practice Group.




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