The Supreme Court thought it settled the issue in January, but the debate over warrantless GPS searches won't go away.  Now, one U.S. senator is concerned that the Department of Justice hasn't fully scaled back its searches and may be subpoenaing ISPs for the GPS data it can no longer get directly. 

Last September - an eon ago for attorneys involved with this issue - a U.S. appeals court ruled that the Justice Department must turn over information about how much data it obtains about suspects under surveillance by way of GPS devices. It was the first drop in what became a watershed for privacy advocates, including the ACLU, which has long argued that obtaining civilians’ locations through GPS constitutes a warrantless search in violation of the Fourth Amendment.

Then in January, the Supreme Court affirmed the ACLU’s argument almost in its entirety (PDF available here), overturning a drug trafficking conviction of a D.C. nightclub owner whose whereabouts had been tracked through warranted use of GPS data for a car registered to his wife. Since the warrant applied to information for someone other than the suspect, an appeals court ruled, and the Supreme Court upheld, that the search leading to his arrest and later conviction was unconstitutional. Immediately afterward, the DOJ ordered a scaling back on the use of GPS in surveillance.

But recent news reports (like this one) compelled Sen. Al Franken (D - Minn.) to send a letter sent yesterday to U.S. Attorney General Eric Holder, a copy of which was sent to ReadWriteWeb. The letter includes a questionnaire asking the government to disclose the number of requests for information it filed with wireless carriers between last January and April. Sen. Franken apparently is looking for a pattern: Since the Supreme Court handed down its decision in U.S. v. Jones on January 23, a sudden spike in information requests could be a signal that law enforcement officials are bypassing the high court.

“Americans’ right to privacy shouldn’t depend on what technology is being used to track them,” Franken says in his statement sent to RWW.  “The protections people are guaranteed by the Constitution and by the Supreme Court shouldn't be limited to the use of physical GPS monitoring devices; they should extend to any device law enforcement officials use to track an individual’s movements - including location information obtained from wireless carriers.”

The government’s position on the Jones case had been that a GPS database was like a public place, a virtual community. And in that respect, it’s like a public park, where people might not have a reasonable expectation of privacy. In the specific case of Mr. Jones, who was suspected of involvement in a cocaine ring, the government had argued that any privacy right the suspect may claim would be outweighed by the rights of all the other citizens who share this common place (albeit in cyberspace), and who expect it to be free of drug trafficking.

A lower district court, whose ruling had been overturned by the appeals court, had offered something similar to this metaphor: If you’re in a public park and you notice that you're being watched by a passer-by, that's not a privacy violation. If that person keeps looking at you for a long period of time, however, maybe he really is spying on you. By that same standard, perhaps it’s unreasonable to suspect the motives of an agency that acquires a person’s location once or twice. When that person's being monitored for four weeks or so, however, maybe that’s bad.

Justice Antonin Scalia, writing for the majority, completely disagreed. In his classic law-professor style, the justice wrote that the long-term spying metaphor, “introduces yet another novelty into our jurisprudence. There is no precedent for the proposition that whether a search has occurred depends on the nature of the crime being investigated. And even accepting that novelty, it remains unexplained why a 4-week investigation is ‘surely’ too long and why a drug-trafficking conspiracy involving substantial amounts of cash and narcotics is not an ‘extraordinary offens[e]’ which may permit longer observation. ... What of a 2-day monitoring of a suspected purveyor of stolen electronics? Or of a 6-month monitoring of a suspected terrorist? We may have to grapple with these ‘vexing problems’ in some future case ... but there is no reason for rushing forward to resolve them here.”

It’s this question of long-term interest (“Is he staring at me or just in my general direction?”) that may have motivated Sen. Franken to ask Attorney General Holder this question - the second part of Question 2 of his questionnaire:  “How many individuals’ location information did the department receive as a result of these requests?”  Holder was asked to have his staff respond to the questionnaire by June 11.

 


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