White House to argue for GPS tracking without a warrant
The case, set to be heard on Tuesday by the 3rd US Circuit Court
of Appeals in Philadelphia, comes over a year after a US Supreme
Court decision failed to convince the Department of Justice that
warrantless GPS tracking is an infringement on Americans'
“This case is the government’s primary hope that it does not
need a judge’s approval to attach a GPS device to a car,”
Catherine Crump, a lawyer with the American Civil Liberties Union
(ACLU) told Wired magazine.
In January 2012 the Supreme Court overruled an Obama
administration assertion that police should be permitted to affix a
GPS device to a personal vehicle without a search warrant.
Questions were left, however, when the Court declined to answer
whether that type of search was unreasonable and when justices
could not reach a consensus on how police would need to monitor a
suspect before requesting a warrant.
“We hold that the government’s installation of a GPS device
on a target’s vehicle, and its use of that device to monitor the
vehicle’s movement, constitutes a ‘search,’” Justice Antonin
Scalia wrote for the five-justice majority last January.
Scalia stipulated in the opinion that a warrant was not always
necessary, but failed to mention any specific examples of when this
would be the case.
Now prosecutors are honing on Scalia’s exact language, arguing
that the Supreme Court’s decision only specifies that the
installation of a GPS constitutes a search, while the tracking that
follows does not. The government argues that the Supreme Court has
given police near free reign in allowing for search warrant
Searches of students, individuals on probation and border crossings are among the proposed exceptions.
The argument resurfaced after Philadelphia brothers Harry, Michael and Mark Katzin were indicted for a string of late-night pharmacy burglaries in 2010. Suspicious of the Dodge Caravan they thought was used in the robberies, investigators monitored the vehicle with a GPS device for 48 hours and were able to trace the brothers' involvement.
Arguing in US v. Katzin, government prosecutors claimed that a
law requiring them to seek a warrant would seriously impede
investigations of terrorist suspects.
“Requiring a warrant and probable cause before officers may
attach a GPS device to a vehicle, which is inherently mobile and
may no longer be at the location observed when the warrant is
obtained, would seriously impede the government’s ability to
investigate drug trafficking, terrorism and other crimes,”
authorities said in court.
“Law enforcement officers could not use GPS devices to gather
information to establish probable cause, which is often the most
productive use of such devices. Thus, the balancing of law
enforcement interests with the minimally intrusive nature of GPS
installation and monitoring makes clear that a showing of
reasonable suspicion suffices to permit use of a ‘slap-on’ device
like that used in this case.”
While the ACLU accused the government of prosecutorial overreach
in the case, it praised a new bill - the so-called 'GPS Act' - that
would require law enforcement to get a warrant in order to access
an individual’s GPS tracking history, whether it be from a vehicle
device or a cell phone provider. The bill, which would not affect
emergency services but would require police to prove probable
cause, was reintroduced into Congress by Senators Ron Wyden (D-OR),
Mike Kirk (R-IL) and Representative Jason Chaffetz (R-UT).
In a statement, Wyden decried the government’s blind eye to police overreach.
“GPS technology has evolved into a useful commercial and law
enforcement tool - but the rules for the use of that tool have not
evolved with it,” he said. “The GPS Act provides law
enforcement with a clear mandate for when to obtain a warrant for
the geolocation information of an American…It protects the privacy
and civil liberty of any American using a GPS-enabled