New CRS Report on Governmental Tracking of Cell Phones and Vehicles

Governmental Tracking of Cell Phones and Vehicles: The Confluence of Privacy, Technology, and Law

by Richard M. Thompson, Law Clerk,Congressional Research Service Report #R42109, December 1, 2011

Summary

Technology has advanced considerably since the framers established the constitutional parameters for searches and seizures in the Fourth Amendment. What were ink quills and parchment are now cell phones and the Internet. It is undeniable that these advances in technology threaten to diminish privacy. Law enforcement’s use of cell phones and GPS devices to track an individual’s movements brings into sharp relief the challenge of reconciling technology, privacy, and law. Beyond the Constitution, a miscellany of statutes and cases may apply to these tracking activities. One such statute is the Electronic Communications Privacy Act of 1986 (ECPA), P.L. 99-508, 100 Stat. 1848 (1986), which protects individual privacy and governs the methods by which law enforcement may retrieve electronic communications information for investigative purposes, including pen registers, trap and trace devices, wiretaps, and tracking devices. The primary debate surrounding cell phone and GPS tracking is not whether they are permitted by statute but rather what legal standard should apply: probable cause, reasonable suspicion, or something less.

Legislation has been introduced in the 112th Congress that proposes to update, clarify, or, in some instances, strengthen the privacy interests protected under the law and give law enforcement a clearer framework for obtaining crucial crime-fighting information. In particular, Senator Ron Wyden and Representative Jason Chaffetz introduced identical legislation, S. 1212 and H.R. 2168, entitled the Geolocational Privacy and Surveillance Act, or GPS bill, which would make it unlawful for a service provider to disclose or law enforcement to intercept or use a person’s location unless they obtained a warrant based upon probable cause or one of the limited exceptions applies. Senator Patrick J. Leahy has introduced the Electronic Communications Privacy Act Amendment Act of 2011 (S. 1011), which not only includes a warrant requirement for geolocation information, but also overhauls and updates other provisions of federal electronic surveillance law.

Congress is not the only branch confronting this tension between technology and privacy—the Supreme Court has granted certiorari in United States v. Jones, 131 S. Ct. 3064 (2011), to determine whether the Fourth Amendment’s protection against unreasonable searches and seizures precludes the police from placing a GPS device on a person’s vehicle without a warrant. Though the Court has dealt with similar issues in United States v. Knotts, 460 U.S. 276 (1983), and United States v. Karo, 468 U.S. 705 (1984), in Jones, the Court has been asked to determine what effect the prolonged, warrantless use of a tracking device has on a person’s privacy interest.

This report will briefly survey Fourth Amendment law as it pertains to the government’s tracking programs. It will then summarize federal electronic surveillance statutes and the case law surrounding cell phone location tracking. Next, the report will describe the GPS-vehicle tracking cases and review the pending Supreme Court GPS tracking case, United States v. Jones. Finally, the report will summarize the geolocation and electronic surveillance legislation introduced in the 112th Congress.

For a PDF copy of the report, click here.

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