GPS on the run?

By: Scott Bradner

On Tuesday November 8th the US Supreme Court heard arguments on a relatively common drug case but there is a chance for this case to set the groundwork, for good or ill, on resolving most of the issues I discussed a few weeks ago when writing about the murky state of privacy protections from the government in the U.S. (http://www.networkworld.com/columnists/2011/100311-bradner.html)

The particular case argued was the U.S. vs. Antoine Jones, who had been convicted of conspiracy to distribute cocaine in part on the strength of evidence collected by a GPS tracker that had been installed on his car. The police had gotten a warrant to install the GPS tracker but had not done so within the timeframe enabled by the warrant. Although the government argued that people should not expect privacy when driving on a public street so tracking by GPS should not even require a warrant a lower court tossed the conviction saying that 24 x 7 GPS tracking was going too far. The current case is a result of the government appealing that decision.

In its argument in front of the Supreme Court the government basically said that there should be no expectation of privacy on the part of someone wandering around in public and that the use of GPS tracking was only an implementation detail. The court had previously ruled that police tracking of people in public by following them was OK without a warrant. But it was clear from the argument transcript (http://www.supremecourt.gov/oral_arguments/argument_transcripts/10-1259.pdf) that many of the justices thought that the automation of tracking enabled by the use of a GPS tracker was more than a minor difference.

Justice Alito got to the core of the issue when he noted " it seems to me the heart of the problem that's presented by this case and will be presented by other cases involving new technology is that in the pre-computer, pre-Internet age much of the privacy -- I would say most of the privacy -- that people enjoyed was not the result of legal protections or constitutional protections; it was the result simply of the difficulty of traveling around and gathering up information. But with computers, it's now so simple to amass an enormous amount of information about people …" Justice Sotomayor noted that the logical conclusion of the government's position is that every person could be monitored tracked through their cell phones without having to get warrants.

It seems to make little difference who is in charge of the government, the official government position is that it may do everything that it can do when it comes to tracking the activities and opinions of the citizens. This government has argued at various times that it should have full access on a whim to cell phone location data, to stored email, to IP addresses of ISP users and, in this case, the ability to use GPS trackers on whoever it wants to. The government maintains that it can be trusted to do the right thing and to not invade the citizen's rights but we have a few millennia of experience that counter that assertion.

If the Court decides that an unlimited ability to monitor the activities of you and me is going too far, it could form the basis for an understanding of how to approach the many other situations where the technical ability to watch has far outstripped the legal protection against being watched. Kiss your privacy goodbye if the Court agrees with the government.

disclaimer: Lots of people at Harvard have opinions on when it is OK to be watched, I am one of them, but I do not know of any official university opinion, even if there is one, this column is not it.