by Robert Gellman, JD, Communia Blog, Woodrow Wilson International Center for Scholars, January 25, 2012
The Supreme Court’s decision in U.S. v. Jones, a case that addressed the use of global positioning system GPS tracking devices for law enforcement purposes, is hot privacy news. Almost immediately, the decision sparked numerous and sometimes conflicting comments. The issue here is whether the decision will prompt Congress to consider legislation and what that legislation might look like.
The majority opinion by Justice Antonin Scalia used a property-based approach to conclude that attaching a GPS device to a car and using the GPS to monitor the car’s movements on public streets constitutes a search or seizure within the meaning of the Fourth Amendment to the Constitution. The narrow basis for the decision turned on the fact that the government physically occupied private property the car for the purpose of obtaining information.
A concurring opinion by Justice Samuel Alito and joined by three of his colleagues reached the same outcome, but Alito wanted to determine whether the car owner’s reasonable expectations of privacy were violated by the long-term monitoring of his car. Essentially, Alito thought that the majority’s property analysis was not scalable to present day surveillance issues and that an expectation of privacy standard would reach the same result without the baggage of the property-based approach.
Justice Sonia Sotomayor joined the majority opinion, but she also filed a concurring opinion. She observed that physical intrusion is not always necessary for surveillance e.g., by tracking a cell phone and argued that how surveillance is done may affect an expectation of privacy. So in her opinion Sotomayor asked whether people reasonably expect that their movements will be recorded in a manner that allows the government to ascertain their political and religious beliefs, sexual habits, and more. She even questioned the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. That was the holding in United States v. Miller, 425 U. S. 435, 443 1976 , a case increasingly criticized by privacy advocates as inconsistent with life today.
For full text of this article, which provides an insightful overview of what crafting and passing updated privacy legislation might entail, visit Legislating Privacy After US v Jones « Communia.
Robert Gellman, JD is a privacy and information policy consultant in Washington, D.C. He served for 17 years on the staff of a subcommittee in the House of Representatives. He can be reached at bob [at] bobgellman. [dot] com or visit his website at http://www.bobgellman.com/. Also check out his article Location Privacy: Is Privacy in Public a Contradiction in Terms?
- Supreme Court GPS Tracking Case: Round-up and Resources (geodatapolicy.wordpress.com)
- Supreme Court Relies on Kerr’s Theory of Fourth Amendment and Property (geodatapolicy.wordpress.com)
- Location Privacy: Is Privacy in Public a Contradiction in Terms? (geodatapolicy.wordpress.com)
by Richard M. Thompson, Law Clerk,Congressional Research Service Report #R42109, December 1, 2011
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.
Cell phone location data subject to Fourth Amendment and is more invasive than GPS [updated with link]
Cell phone location data subject to Fourth Amendment and is more invasive than GPS
John Wesley Hall, Fourth Amendment Blog, November 3, 2010
Technology is changing faster than the law. Cell phone location data is subject to the Fourth Amendment because it can reveal information from within the home. Indeed, cell phone location data is more invasive than GPS tracking. In re Application of the United States of America for Historical Cell Site Data, 2010 U.S. Dist. LEXIS 115529 (S.D. Tex. October 29, 2010)…
For full text of the article, visit FourthAmendment.com – Post details: S.D.Tex.: Cell phone location data subject to Fourth Amendment and is more invasive than GPS [updated with link].
- Georgia Court of Appeals – Including “Feddie” – Weighs In On Search Incident to Arrest for Cell Phones (volokh.com)
- Location-Tracking Technology and Privacy (geodatapolicy.wordpress.com)
- Is Privacy in Public a Contradiction in Terms? (geodatapolicy.wordpress.com)
- California Supreme Court: Cell Phone Searches Don’t Need a Warrant (reason.com)
- Warrantless cell phone search gets a green light in California (arstechnica.com)
- Court Holds that Data About Car Speed and Brake Usage Stored in Car’s Computer Protected by Fourth Amendment (volokh.com)
Crowd-sourced data hold potential for positive change and human rights abuses
By Robin Lloyd, Scientific American | Feb 18, 2011 01:35 PM |
Social media has scored big successes in helping crowds to gather and communicate online to challenge oppressive regimes in recent weeks, but digital gathering places that are basically public—and the crowd-sourced data they generate—also carry risks. Crowds are forming so rapidly online—the photo-sharing app Instagram reported enrolling one million users in the past six weeks—that many platform managers fail to take full responsibility for protecting the users who post reports online, or for anticipating how the data might be abused by authorities.
We would like to invite you to read Geodata Policy’s first guest blog posting by Robert Gellman. This article is timely given the update of the Electronic Communications Privacy Act (ECPA) and the recent Federal Trade Commission (FTC) report, Protecting Consumer Privacy in an Era of Rapid Change, which highlights the sensitivety of “precise geolocation data” (p. 61). Robert Gellman is a privacy and information policy consultant in Washington, DC: http://www.bobgellman.com/.
Is Privacy in Public a Contradiction in Terms?
Robert Gellman, Privacy and Information Policy Consultant
February 21, 2011
Is there such a thing as privacy in a public space? When you walk down the street, anyone can observe you, make notes about your location, appearance, and companions, and even take your picture. If so, then it would seem that you have no reasonable expectation of privacy.
However, most people would be unhappy if they found themselves followed all day. For most of human existence, this type of surveillance was impractical because of the great expense of following someone around.
This is a good place to pause and say that this is a short essay and not a law journal article. The law of surveillance is complex, and the answers can be different if the person doing the surveillance is a government agent, an employer, or an average person, or if you’re taking pictures or recording conversations.
Is privacy in public a case of the irresistible force meeting the immoveable object? Should your location privacy deserve some protection even when you are in public?
These questions are much harder to answer today because of technology. It’s cheap to track people in public today. There’s no need to pay a private detective. Technology does it. First on the list are cell phones. Your cell phone broadcasts your location constantly to a cell phone tower, and your provider knows where you are. Cameras are everywhere, taking pictures in malls, parking lots, building corridors, on the street, at red lights, and on the highway. Facial recognition software is getting better all the time. Photos placed on the Internet can be scanned to identify individuals as well as the date and GPS coordinates where the photos were taken. Digital signage in stores and elsewhere can record behavior, approximate age, gender, and ethnicity, and can sometimes identify individuals using a variety of devices. I recommend a pioneering report on digital signage by my colleague Pam Dixon. It’s at the World Privacy Forum website.
Even though not all the technological and organizational links are yet in place, it’s not hard to envision the possibility that, in the near future, every action you take outside your home may be observed and recorded by someone. This is more or less what happens today online, where there is a good chance that some website or advertiser (and probably many more than one) records every site you visit, every page and ad you see, and every click you make.
Senator proposes mobile-privacy legislation
by Declan McCullagh, Privacy Inc, January 26, 2011
Federal law needs to be updated to halt the common police practice of tracking the whereabouts of Americans’ mobile devices without a search warrant, a Democratic senator said today. Ron Wyden, an Oregon Democrat, said it was time for Congress to put an end to this privacy-intrusive practice, which the Obama Justice Department has sought to defend in court. Sen. Wyden (right) tells Cato Institute audience that tracking cell phones is as privacy-invasive as searching someone’s home. …
For full text of article via Senator proposes mobile-privacy legislation | Privacy Inc. – CNET News.
- Senator Wyden and mobile privacy (bigbrotherwatch.org.uk)
- Sen. Ron Wyden: Protecting mobile privacy (Q&A) (news.cnet.com)
- Senator proposes mobile-privacy legislation (news.cnet.com)
- Commerce Dept. suggests new privacy regulations (news.cnet.com)
- Location-Tracking Technology and Privacy (geodatapolicy.wordpress.com)
- Senator Wyden Proposing Legislation Requiring Warrants For Law Enforcement To Get Device Location Info (techdirt.com)