Warrantless tracking: eyes in the sky - Citing

Reason, August, 2003 by Brian Doherty

CAN COPS PUT aglobal-positioning-sateilite tracker on your car without a warrant? That question will soon be decided by Washington state's Supreme Court.

Strangely, in the case in question, the police did have a warrant. Accused murderer William Jackson had a GPS device placed on his car to trace him as he went to the site where the body of his murdered daughter had been buried. But in a challenge to a state appellate court, Jackson's lawyers argued that the police did not have probable cause to get the warrant. The court said it didn't matter, since they didn't even legally need the warrant. Thus, that question needs to be decided.

Doug Klunder of the American Civil Liberties Union, who filed an amicus brief in the case, says this is the first case in the United States considering this issue of warrants and GPS devices. The precedents relied on in the case so far involve the use of beepers. Klunder argues that GPS devices raise a different set of legal concerns, since they, as he wrote in his brief, "create a detailed record of all movement, available for later access...they cannot be considered...mere sensory enhancement." Meanwhile, with beepers, "there is no way... to look at somebody and discover where he has been at all times over the last week." The Court ofAppeals decision relied on thinking of GPS as merely equivalent to physically tailing a suspect, something cops can do without a warrant.

In his brief, Klunder quotes a dissenting opinion from a Nevada state case upholding warrantless beepers. The opinion sums up the ACLU's fears about a world where cops can use GPS indiscriminately: Such devices could be used to "continually monitor individuals only because law enforcement considers them 'dirty.' In the future, innocent citizens, and perhaps elected officials or even a police officer's girlfriend...will have their whereabouts continually monitored simply because someone in law enforcement decided to take such action. This gives too much authority to law enforcement and permits the police to use the vehicle monitor without any showing of necessity and without a limit on the duration of the...intrusion."