By Clifford M. Marks
Earlier this month, we posted about a ruling in a federal appeals court that threw out a drug trafficking conviction because police had attached a GPS tracking device to a suspect’s car without obtaining a warrant.
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Well, the New York Times over the weekend took a broader look at the burgeoning legal debate surrounding GPS tracking. The DC Circuit may have sided with privacy advocates, who worry police gain too much information from round-the-clock GPS surveillance, but three other circuits have ruled the other way.
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Proponents of the technology say GPS tracking is analogous to the low-tech police tactic of trailing a suspect’s vehicle. In a case before the Seventh Circuit, Judge Richard Posner wrote that the Fourth Amendment “cannot sensibly be read to mean that police shall be no more efficient in the 21st century than they were in the 18th. There is a tradeoff between security and privacy, and often it favors security.”
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Privacy got the nod in the DC decision, though, with Judge Douglas Ginsburg concerned that unceasing nature of GPS monitoring crossed a line: “A person who knows all of another’s travels can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individual or political groups — and not just one such fact about a person, but all such facts.”
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Several state supreme courts have also weighed in with decisions that say their constitutions require that police obtain a warrant before attaching a GPS device to a suspect’s vehicle, reports the Times.
Given the circuit split, the case may well make it to the Supreme Court. Until then, the line will remain too uncertain, worries Orin Kerr, a GW Law professor and former federal computer-crimes prosecutor.
“Police will never know whether they have violated the Fourth Amendment until some judge tells them,” he told the Times.
