Texas proposes one of nation’s “most sweeping” mobile privacy laws

by Cyrus Farivar, Ars Technica, March 6, 2013

Privacy experts say that a pair of new mobile privacy bills recently introduced in Texas are among the “most sweeping” ever seen. And they say the proposed legislation offers better protection than a related privacy bill introduced this week in Congress.If passed, the new bills would establish a well-defined, probable-cause-driven warrant requirement for all location information. That’s not just data from GPS, but potentially pen register, tap and trace, and tower location data as well. Such data would be disclosed to law enforcement “if there is probable cause to believe the records disclosing location information will provide evidence in a criminal investigation.”

For full text of the article, please visit Texas proposes one of nation’s “most sweeping” mobile privacy laws | Ars Technica.

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California Governor Vetoes Landmark Location-Privacy Law

by David Kravets, Threat Level, Wired, October 2, 2012

California Gov. Jerry Brown has vetoed legislation that would have required the state’s authorities to get a probable-cause warrant signed by a judge to obtain location information from electronic devices such as tablets, mobile phones and laptops. The measure passed the state Senate in May and the Assembly approved the plan in August. … Brown, a Democrat, last year vetoed a measure requiring police officers to obtain a warrant before searching someone’s cellphone after arresting them. That leaves California police officers free to search through the mobile phones of persons arrested for any crime. …

For full text of the article, visit California Governor Vetoes Landmark Location-Privacy Law | Threat Level | Wired.com.

Federal Court Hears Location Data Case

by Jess Kamen, Politico Morning Tech, Oct 2, 2012

Courts and legislatures around the country are struggling with where to draw the line on government access to your electronic data. A federal appeals court in New Orleans [recently heard] oral arguments in a case involving the government’s ability to review location data from cellphone companies. To obtain the information, lower courts have ruled that the government needs a search warrant supported by probable cause. The government argues that the information is cellphone company business records, and cellphone users have given up some degree of privacy when they give up their location information.

California Gov. Jerry Brown vetoed a bill that would have required law enforcement to get a search warrant before obtaining any location information from any device. ‘It may be that legislative action is needed to keep the law current in our rapidly evolving electronic age,’ said the governor in his veto message, adding he was not ‘convinced’ the bill struck the right balance between the needs of law enforcement and individual privacy. http://tinyurl.com/8kx9s4x

Related articles

• Gov. Brown vetoes requiring a warrant for cellphone location info (latimesblogs.latimes.com)
• Governor Brown Vetoes California Electronic Privacy Protection. Again. (eff.org)
• California Governor Vetoes Landmark Location-Privacy Law (wired.com)
• Cell phone location data not private, Feds argue (computerworld.co.nz)

Passing the buck on location tracking

by Keith Perine, Politico Pro, May 3, 2012

When it comes to police access to cellphone location data of suspects, Congress has left the courts holding the bag. The high-stakes privacy debate over law enforcement tracking citizens using geolocational data is one Congress — despite a few bills and a hearing on the horizon — isn’t likely to resolve anytime soon. Lawmakers have left it to the courts, while the Supreme Court seemed to toss it back to the Hill recently. …

For full text of the article, visit Passing the buck on location tracking – Keith Perine – POLITICO.com.

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Federal judge: GPS use illegal in Chicago-Kentucky drug bust

Associated Press, Chicago Tribune, May 23, 2012

When Kentucky State Troopers stopped 49-year-old Robert Dale Lee on Interstate 75 in September 2011, they knew he would be coming their way and what to look for in his truck. The Drug Enforcement Administration had been following Lee’s truck from Chicago using a GPS — a tracking device placed on the vehicle as part of a multi-state drug probe — and troopers found 150 pounds of marijuana in the vehicle. Now, a federal judge has ruled the stash inadmissible in the case against Lee because the DEA and troopers didn’t have a warrant to place the device on the truck. …

For full text of the article, visit Federal judge: GPS use illegal in Chicago-Kentucky drug bust – chicagotribune.com.

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Supreme Court GPS Tracking Case: Round-up and Resources

Updated February 20, 2012

UNITED STATES v. JONES
615 F. 3d 544, affirmed.

From Cornell University Legal Information Institute [HTML version has links to cited cases]:

• Syllabus [HTML] [PDF]
• Opinion, Scalia [HTML] [PDF]
• Concurrence, Sotomayor [HTML] [PDF]
• Concurrence, Alito [HTML] [PDF] 

From the Supreme Court and American Bar Association websites:

• Supreme Court Opinion No. 10-1259, Argued Nov 8, 2011 and Decided January 23, 2012 [PDF]
• Oral Argument Transcript [PDF]
• Merit and Amicus Briefs, American Bar Association, Accessed January 23, 2012

Legislation

In his written opinion, “Alito said the court and Congress should address how expectations of privacy affect whether warrants are required for remote surveillance using electronic methods that do not require the police to install equipment, such as GPS tracking of mobile telephones. Alito noted, for example, that more than 322 million cellphones have installed equipment that allows wireless carriers to track the phones’ locations (ABC News, Jan 23, 2012).” In his article linked below, Robert Gellman provides a nice overview of the complexities of the legislative process for updating privacy legislation after US v. Jones:

• Legislating Privacy after US v. Jones: Can Congress Limit Government Use of New Surveillance Technologies? Robert Gellman, Communia Blog of the Science and Technology Program, Woodrow Wilson International Center for Scholars, January 25, 2012

For a list of proposed location privacy legislation as of Fall 2011, visit the home page of Kevin Pomfret’s Centre for Spatial Law and Policy.

Law Review Articles and Essays

• A Reasonableness Approach to Searches After the Jones GPS Tracking Case, Peter Swire, 64 Stan. L. Rev. Online 57 (2012)
• Signal Lost: Is a GPS Tracking System the Same as an Eyeball? Eric Andrew Felleman, 45 Michigan Journal of Law Reform 1 (2011)
• Tied Up in Knotts? GPS Technology and the Fourth Amendment, Renee McDonald Hutchins, 55 UCLA Law Review 1 (2007)
• The Case for the Third-Party Doctrine, Orin Kerr, Michigan Law Review Vol 107, 2009; see also counterpoint Kerr Defends the Third-Party Doctrine, Jim Harper, The Technology Liberation Front, May 30, 2008
• The Fourth Amendment and New Technologies: Constitutional Myths and The Case for Caution, Orin Kerr, 102 Mich. L. Rev. 801, 200

Case Summaries  and Commentaries (disclaimer: opinions and analyses are those of the original authors, not all may be accurate)

February 2012

• What Does Jones Mean for the Exclusionary Rule? David Gray, Concurring Opinions, February 10, 2012
• Nader, Onassis, and Jones: Privacy in Public and Limits on the Private Sector Robert Gellman, Communia Blog, Woodrow Wilson Center, February 9, 2012

January 2012

• Kennedy and Szoka on US v Jones by Danielle Citron, Concurring Opinions, January 30, 2012
• The Potentially Profound Implications of US v Jones, Daniel Solove, Concurring Opinions, January 29, 2012
• United States v Jones: A Step-back for Rights, Renee Hutchins, Concurring Opinions, January 29, 2012
• Barry Friedman on US v Jones, Danielle Citron, Concurring Opinions, January 29, 2012
• Reasonable Expectation of Privacy, Gerard Magliocca, Concurring Opinions, January 24, 2012
• United States v. Jones: Privacy in Public Space? Piece it all Together and You Get 5. Pricilla Smith, Concurring Opinions, January 24, 2012
• Jones Confounds the Press, Tom Goldstien, SCOTUS Blog, Bloomberg, January 25, 2012
• Legislating Privacy after US v. Jones: Can Congress Limit Government Use of New Surveillance Technologies? Robert Gellman, Communia Blog of the Science and Technology Program, Woodrow Wilson International Center for Scholars, January 25, 2012
• Three Thoughts on US v Jones, Margot Kaminski, Concurring Opinions, January 24, 2012
• Jones is a Near-Optimal Result, Paul Ohm, Concurring Opinions, January 24, 2012
• United States v. Jones: Privacy in Public Space? Piece it all Together and You Get 5, Priscilla Smith, Concurring Opinions, January 24, 2012
• Reasonable Expectation of Privacy, Gerard Magliocca, Concurring Opinions, January 24, 2012
• Why Scalia is Right in Jones: Magic Places and One-Way Ratchets, Derek Bambauer, January 24, 2012
• Here’s Why You Should Care (A Lot) About the Supreme Court’s GPS Ruling, Neal Ungerleader, Fast Company, January 25, 2012
• Searching for Clarification: United States v. Jones and Searches Under the Fourth Amendment, Reasonably Prudent: Tax, Technology and the Law Blog, January 24, 2012
• All Hail Samuel Alito, Privacy Champion Extraordinaire, Jeffery Rosen, The New Republic, January 24, 2012
• U. S. Supreme Court Unanimously Rule that GPS Installation and Tracking of a Vehicle Constitutes a Search, But The Justices Disagree on Rationale – Are Lines Being Drawn on Privacy Rights and New Technology?, Jeff Neuberger, New Media and Technology Law Blog, January 23, 2012
• A Unanimous Privacy Victory in US v. Jones, Jim Harper and Julian Sanchez [Video Podcast on YouTube], January 23, 2012
• “Jones”ing for a Fourth Amendment Upgrade, Julian Sanchez, Cato Institute, January 23, 2012
• US v. Jones: A Big Privacy Win, Jim Harper, Cato Institute, January 23, 2012
• United States v. Jones is a Near-Optimal Result, Professor Paul Ohm, Princeton Center for Information Technology Policy, Freedom to Tinker Blog, January 23, 2012
• The New Doctrine of What Is a Fourth Amendment Search, What Jones Does Not Hold, What’s the Status of The Mosaic Theory After Jones, Why Did Justice Sotomayer  Join Scalia’s Majority Opinion in Jones, and Three Questions Raised by the Trespass Test in US v. Jones, Professor Orin Kerr + comments, The Volokh Conspiracy, January 23, 2012
• Daniel Solove and other contributors, Concurring Opinions, January 2012
• Tight Limit on Police GPS Use, Lyle Denniston, SCOTUS Blog, Bloomberg Law, January 23, 2012
• Supreme Court Decision in Warrantless GPS Tracking Case Offers Little Guidance in Consumer Privacy Context, Christopher Wolf, Hogan and Lovells, January 24, 2012
• Supreme Court: GPS Location Tracking Qualifies as Search, Tony Romm, Politico, January 23, 2012
• What Does The Supreme Court Ruling Against Warrantless GPS Tracking Mean? Carl Franzen, TPM, January  23, 2012
• Supreme Court Rules That GPS Is A Search, But That’s About All, Doug Mataconis, Beyond the Beltway, January 23, 2012
• Overnight Tech: Lawmakers Weigh in on High Court’s GPS Ruling, Brenden Sasso, The Hill, January 23, 2012
• Supreme Court Rules in Highly Watched GPS Case, John Moe, MarketPlace, January 24, 2012
• Alito v. Scalia: Two Conservative Supreme Court Justices Brawl Over Technology and Privacy, Dahlia Lithwick, Slate, January 23, 2012
• U.S. Supreme Court decides government use of GPS for monitoring constitutes search under the 4th Amendment, Alex Howard, Gov Fresh, January 23, 2012
• A Supreme Court Justice’s Radical Proposal Regarding The Privacy of Your Google Searches, Facebook Account & Phone Records, Kashmir Hill, Forbes, January 23, 2012
• Supreme Court Deals Blow To Government Surveillance, Saying Warrant Needed For GPS Tracking, Kashmir Hill, Forbes, January 23, 2012
• Supreme Court Rejects Willy-nilly GPS Tracking, David Kravets, Wired, January 23, 2012
• Supreme Court holds warrantless GPS tracking unconstitutional, Timothy B. Lee, Ars Technica, January 23, 2012
• Jones a Victory for Privacy but Only Beginning of Fixing Fourth Amendment Doctrine, Berin Szoka, TechFreedom, January 23, 2012
• Supreme Court Requires Warrant for GPS Tracking, Center for Technology and Democracy, January 23, 2012
• Justices Say GPS Tracker Violated Privacy Right, Adam Liptak, New York Times, January 23, 2012
• What Does the Supreme Court GPS Ruling Mean for Privacy? Jennifer Valentino-DeVries, Digits, Wall Street Journal, January 23, 2012
• Why the Jones Supreme Court Case Is Worse Than It Sounds, Rebecca Rosen, The Atlantic, January 23, 2012
• Supreme Court Rules Government Violated Privacy Rights in GPS Tracking Case, ACLU, January 23, 2012

• EPIC US V Jones Analysis
• CDT Amicus Brief
• CDT Summary of Supreme Court Case, Does GPS Tracking Require a Warrant?

Older posts

• US v. Jones: Where Privacy, Technology and the Constitution Collide, John Whitehead [Video Podcast on YouTube], Rutherford Institute, October 10, 2011
• US v. Jones, Professor Douglas Godfrey, IIT Kent College of Law [Video on YouTube], OyezToday.com, November 7, 2011

Location Privacy: Who Protects?

by Catilin D. Cottril, URISA Journal 2011, Volume 23, Issue 2

Abstract: Interest in and concerns related to the issue of privacy in the location-aware environment have been growing as the availability and use of location-based services (LBS) and data have been expanding. Recent events such as “Locationgate” have brought this issue to the forefront of interest for lawmakers, application developers, agencies, and users; however, understanding the varying levels of responsibility for each has been lacking. This article attempts to provide a clear review of the methods by which privacy protection may take place at the levels of law, technology, and management so a better understanding of how a comprehensive approach to privacy protection may take place. While the majority of policy aspects reviewed are U.S.-based, an attempt has been made to provide an overall view of locational privacy policy environments on an international scale as well. It is hoped that this effort will result in a clearer understanding of the ways in which privacy protection efforts should address the related concepts of law, technology, and practice to effectively minimize the risk of privacy harm.

For full text of the article, click here.

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What Does the Supreme Court GPS Ruling Mean for Technology and Privacy?

By Jennifer Valentino-DeVries, Digits, Wall Street Journal, January 23, 2012

The Supreme Court ruled Monday that police violated the Fourth Amendment when they attached and used a GPS device to track a suspect’s vehicle without a warrant. … [But the Court's decision] applies only to the placement and use of a GPS device that had to be attached to the suspect’s car. The justices said the device was an intrusion onto the suspect’s property, even if the car was being driven on public roads. The opinion doesn’t say anything about what would happen if the government were able to track the car through other electronic means, without ever touching the vehicle. …

For full text of the article, visit What Does the Supreme Court GPS Ruling Mean for Privacy? – Digits – WSJ.

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Supreme Court Relies on Kerr’s Theory of Fourth Amendment and Property

As noted by Professor Daniel Solove, Orin Kerr is cited by the Supreme Court in both the majority opinion and in a concurring opinion of US v Jones for his article, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801 (2004).  The majority opinion relies heavily on Orin’s theory of the Fourth Amendment and property that he sets forth in the first part of his article.

The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution

by Orin S. Kerr, George Washington University – Law School, 102 Mich. L. Rev. 801 (2004)

 Abstract: This article argues that courts should approach the Fourth Amendment with caution when technology is in flux. When a technology is new or developing rapidly, courts should adopt modest formulations of Fourth Amendment protections that recognize the effectiveness and institutional advantages of statutory privacy protections.

The cautious approach is justified on three grounds. First, caution is consistent with existing judicial practice. The reasonable expectation of privacy test generally has been used by the courts as a term of art that remains closely tied to property law concepts. When a technology implicates privacy but not property, current judicial practice tends to avoid broad interpretations of the Fourth Amendment.

Supreme Court Ruled on GPS Tracking Case, Backs Privacy Rights

By Jess Bravin, Wall Street Journal, What They Know, January 23, 2012

WASHINGTON—The Supreme Court ruled Monday [in United States v. Jones] that police must obtain a warrant before attaching a GPS tracker to a suspect’s vehicle, voting unanimously in one of the first major cases to test constitutional privacy rights in the digital age. … The court split 5-4 over the reasoning behind Monday’s decision, with Justice Antonin Scalia writing for the majority that as conceived in the 18th century, the Fourth Amendment’s protection of “persons, houses, papers, and effects, against unreasonable searches and seizures” would extend to private property such as an automobile. …

For full text of the article, visit Supreme Court Backs Privacy Rights in GPS Case – WSJ.com.

For full text of the Court’s opinion in United States v. Jones, click here.

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