Government Asserting Right to Track People With GPS Until They Commit a Crime.

[sarge]

BUT, you need no warrant to TRACE a call without listening to it.

There is no similarity between tracing a call and placing a tracking device on a car. The former requires no intrusion on personal property or invasion of a reasonable expectation of privacy. The later requires at least the first condition.

 

[BenBurch]

There is no similarity between tracing a call and placing a tracking device on a car. The former requires no intrusion on personal property or invasion of a reasonable expectation of privacy. The later requires at least the first condition.

My telephone is not personal property? It used to be that it was not; All phones were owned by the phone company, but I actually own all of my telephones.

 

[Rougarou]

I agree that in general the principle is expectation of privacy.

I think you'd have a tough time distinguishing between a directional microphone, a mic with a parabolic reflector, and an "unamplified" microphone. (ETA: Just as I don't think you can distinguish between one camera lens and another.) It's not really about the technology, but about the expectation of privacy.

If you're out in public, you generally don't have that expectation. (Obviously a public restroom is another matter--perhaps more obvious if you consider taking photographs/video.)

ETA: And FWIW, the expectation of privacy is not equivalent to being aware you're being observed/listened to/photographed.

ETA: And I'm speaking primarily about Constitutional issues (esp. 4th Amendment). I don't think there's anything to prevent states from passing laws that might protect privacy beyond the degree afforded by the 4th Amendment.

Quickly glancing over the code, it looks like using a microphone from a distance violates federal law.

Title 18 - Part I - Chapter 119: Wire and Electronic Communications Interception and Interception of Oral Communications (scroll down to Chapter 119)
http://frwebgate.access.gpo.gov/cgi-bin/usc.cgi?ACTION=BROWSE&TITLE=18USCPI&PDFS=YES

Sec. 2511. Interception and disclosure of wire, oral, or
electronic communications prohibited

(1) Except as otherwise specifically provided in this chapter any
person who--
(a) intentionally intercepts, endeavors to intercept, or
procures any other person to intercept or endeavor to intercept, any
wire, oral, or electronic communication;

"oral communications" should apply to someone speaking too far away for your ears to hear:

Sec. 2510. Definitions

As used in this chapter--
(1) ``wire communication''
(snip)
(2) ``oral communication'' means any oral communication uttered
by a person exhibiting an expectation that such communication is not
subject to interception under circumstances justifying such
expectation, but such term does not include any electronic
communication;

My understanding is that state law tends to revolve around whether you can record conversations that you are a party to without the other party's consent:
http://www.nytimes.com/2011/01/23/us/23cnceavesdropping.html

ETA: And why can't I edit my earlier posts to point to this one for the references? Would a moderator do that for me, please?

 

[sarge]

My telephone is not personal property? It used to be that it was not; All phones were owned by the phone company, but I actually own all of my telephones.

When a call is traced, it isn't your actual phone that is traced. There never need be any interaction with the physical device at all. When a call is traced, it is the activity over the line (or airwaves with celular devices) that is "traced". When your phone calls are traced, your personal property is not touched at all.

So no, there is not much of a similarity between cops attaching a tracking device to private property and cops "tracing" a phone call.

 

[JoeTheJuggler]

Quickly glancing over the code, it looks like using a microphone from a distance violates federal law.

Title 18 - Part I - Chapter 119: Wire and Electronic Communications Interception and Interception of Oral Communications (scroll down to Chapter 119)

The definition of "oral communication" incorporates much the same idea as the reasonable expectation of privacy:

(2) ``oral communication'' means any oral communication uttered
by a person exhibiting an expectation that such communication is not
subject to interception under circumstances justifying such
expectation, but such term does not include any electronic
communication;

The courts have said that if you're in public, you don't have a reasonable expectation of not being subject to interception, even if the person listening in is using technology to enhance their senses.

[ETA: Note that the text I bolded has the two elements in the Katz test I mentioned earlier: subjective and objective expectation or what may also be called "reasonable expectation".]

My understanding is that state law tends to revolve around whether you can record conversations that you are a party to without the other party's consent:

Yes, states may make laws that further limit what police can do. In some states, both parties in a conversation need to be aware it is being recorded for a recording of that conversation to be admissible, but in some states only one party has to be aware. But that's really only when there is an expectation of privacy. If two people are having a conversation out in public, they have no reasonable expectation of privacy, and police can listen in (even using technology) as long as things are in plain view.

And again, I'm not talking about compliance with state or local laws--just the 4th Amendment issue.

 

[JoeTheJuggler]

How about this as an illustration: if a bad guy were having a conversation in a restaurant and a plain clothes police officer were sitting at the next table, and the officer overheard something damning enough to get a warrant to get evidence that led to a conviction, this would be fine with everyone, right?

Now what if that police officer relied on his hearing aids to overhear that conversation?

It's really not about the technology, but about the reasonable expectation of privacy.

Let's say the same bad guy went into a public phone booth (remember those?) and closed the door. He's still in public, but he has actively done something to conceal his oral communication, and he has a reasonable expectation of privacy. In this case, using technology to eavesdrop without a warrant would not be legal.

 

[BenBurch]

When a call is traced, it isn't your actual phone that is traced. There never need be any interaction with the physical device at all. When a call is traced, it is the activity over the line (or airwaves with celular devices) that is "traced". When your phone calls are traced, your personal property is not touched at all.

So no, there is not much of a similarity between cops attaching a tracking device to private property and cops "tracing" a phone call.

My telephone is in the circuit, and in fact, there would be no phone call without it, so yeah, it's the same scenario. Might as well argue that the roads are part of a car trip, so lowjacking the car isn't a problem...

 

[sarge]

My telephone is in the circuit, and in fact, there would be no phone call without it, so yeah, it's the same scenario. Might as well argue that the roads are part of a car trip, so lowjacking the car isn't a problem...

Not at all.

That your phone is on the circuit is equal to the car being on the highway. Placing a tracking device on your car is equal to placiing a bug on your phone - it is the physical intrusion that makes the difference here.

Placing a physical device on your private property for the sole purpose of gathering evidence against you amounts to a search. Watching you from a distance does not.

If the police use technology to gather evidence that could otherwise be gathered by physical observation, all good - so long as the physical observation itself would not be unconstitutional and so long as there is no invasion involved. There would be no issue with using a satellite to track, for example.

 

[JoeTheJuggler]

- it is the physical intrusion that makes the difference here.

Can you cite statute or case law to support this?

I've shown that both statue and case law do not. The 4th Amendment issue is the reasonable expectation of privacy.

See especially the Knotts case. (Where a radio beeper tracking device was attached to a vehicle.)

This is the Supreme Court decision that this 3-judge panel would have to overturn to become the law of the land. I predict that the full appellate court will reverse the panel's decision.

 

[JoeTheJuggler]

If the police use technology to gather evidence that could otherwise be gathered by physical observation, all good - so long as the physical observation itself would not be unconstitutional and so long as there is no invasion involved.

How do you define "invasion"? Isn't this your own idea and nothing that comes from the law? (Remember, even though the 4th Amendment test here is reasonable expectation of privacy, this issue does not concern a "right to privacy" that may be violated--if that's what you're after.)

There would be no issue with using a satellite to track, for example.

That's how the GPS tracker works.

 

[Dorian Gray]

How do you define "invasion"? Isn't this your own idea and nothing that comes from the law? (Remember, even though the 4th Amendment test here is reasonable expectation of privacy, this issue does not concern a "right to privacy" that may be violated--if that's what you're after.)


That's how the GPS tracker works.

No, it isn't. A satellite would take a visual picture, and if the person appears on the image, great, and if not, too bad. A GPS would electronically track a signal, perpetually pinpointing the potential perpetrator positively.

You couldn't put a tracker on a person, and you can't place one on their car. Case law supports this. What is so hard to understand about it? Squeezing your eyes really tight and wishing hard isn't going to change anything.

 

[JoeTheJuggler]

No, it isn't. A satellite would take a visual picture, and if the person appears on the image, great, and if not, too bad. A GPS would electronically track a signal, perpetually pinpointing the potential perpetrator positively.

Sarge said "using a satellite to track" and that's what GPS does.

A GPS tracker receives signals from 3 or more Global Positioning System satellites to determine its precise location. I don't know how the information is relayed to the police. The device either transmits that information via radio waves (as did the beeper device in Katz Knotts) or it records it so that police would later recover the device to read the info.

However, haven't you been arguing that it's the amplification that makes it illegal? You realize optical satellites rely on telescopes to resolve things as small as a car? How is it that a light amplifier is legal but a sound amplifier isn't? (My apologies if this wasn't your argument.)

Anyway, the operative principle, as I've said, isn't the technology, but the expectation of privacy.

You couldn't put a tracker on a person, and you can't place one on their car. Case law supports this. What is so hard to understand about it? Squeezing your eyes really tight and wishing hard isn't going to change anything.

I understand it just fine. The principles you and others are inventing are not in the law. (The stuff about "physical invasion" and "a reasonable expectation that nothing will be stuck to their cars" and so on.)

Again, read the Supreme Court decision in KatzKnotts. It decided that it was in fact legal for police to place a tracker on a vehicle. The issues--all related to the reasonable expectation of privacy, as I've been explaining--were whether or not the device would provide information other than what was in plain view. The location of the vehicle is the only information the GPS tracker (like the beeper-tracker in Katz Knotts) would provide.

And again, Supreme Court cases trump the decision of a 3-judge panel from a lower court. For that matter, the full court (which has yet to rule on the government's appeal of the panel's decision) trumps the 3-judge panel.

Squeezing your eyes really tight and wishing hard isn't going to change anything.

At this point, the law of the land is the Supreme Court decision given in Katz Knotts. This case is attempting to overturn that law. (The article INMR linked to even says so.) Contrary to what has been said here, unless or until the Supreme Court acts to overturn Katz Knotts, Katz Knotts is current case law.

ETA:

You couldn't put a tracker on a person, and you can't place one on their car. Case law supports this.

For this to be true, you'd need to cite a Supreme Court case newer than Katz Knotts which says just that. If you cannot, then you have made a false claim.

ETA: Sorry--I got my Katz and my Knotts mixed up. For clarification: Katz is the 1967 case that established the 4th Amendment test based on the reasonable expectation of privacy. Knotts is the 1983 case that involved police putting a radio beeper tracking device on a vehicle and which said it did not violate the 4th Amendment (based largely on the reasonable expectation of privacy test because of what information the tracker provided).

 

[JoeTheJuggler]

And to confuse things more--the other "K" case I mentioned, Kyllo, basically said the same sort of thing. It's the nature of the information the technology provides (whether or not it falls within plain view or is something for which there is a reasonable expectation of privacy) and not the nature of the technology. In Kyllo, the government tried to argue that since the device was basically passive--only reading heat signatures that radiate off the house--that it wasn't intrusive or invasive or whatever the idea is. But the Supreme Court has been fairly consistent in saying that that's not the point. The legal test is the nature of the information collected. Whether or not it is something for which there is a reasonable expectation of privacy.

 

[JoeTheJuggler]

And another pertinent "K" Supreme Court decision: U.S. v. Karo (1984). In this case, police placed a tracking device in a vehicle*, but they continued tracking it even in places where there was a reasonable expectation of privacy (on private property rather than just out in public).

The court ruled that the first part was OK, but the second part was not. However, as it turns out, the conviction wasn't overturned because they decided that there was enough evidence other than what the tracker provided when it was in private to have gotten the warrant they obtained to get the evidence needed to convict.

The majority decision said that putting the tracker in the can wasn't a search or seizure at all (by definition). It didn't become such until the receiver was turned on and the tracker used to track the vehicle.

*They planted the tracker in a can of ether with the cooperation of an informant. That informant sold the can (with a lot of other cans) to the suspect/defendant. The defendant actually put the can in the vehicle. The problem was that the police tracked the can of ether as it moved beyond the vehicle in public. It provided a lot more information other than the location of the vehicle in public. In Knotts, the point was made that they didn't use the tracker to track the movement of the chloroform after it was in private areas. They only used it to track the location of the vehicle in plain view.

 

[TjW]

My telephone is not personal property? It used to be that it was not; All phones were owned by the phone company, but I actually own all of my telephones.

In tracing a call, they wouldn't be discovering anything about your telephone or the telephone at the other end of the connection. They would be monitoring the specific state of the telephone switching network at the time you made your call.

 

[Dorian Gray]

Is tracking a drum of chloroform the same as tracking a person or a vehicle? Is putting a transmitter in a drum with permission of the owner of the drum the same as putting a GPS tracker on a car without permission of the owner of the car?

Does the fact that this will likely end up in the Supreme Court pretty much indicate that these are two different things? Whereas the court cases I cited are the same or substantially the same as the issue of this thread, and are the basis of the cases going up to the Supreme Court?

 

[JoeTheJuggler]

Is tracking a drum of chloroform the same as tracking a person or a vehicle?

The decision in that case was that it is legal to use the tracker to track the movement of the vehicle but NOT to track the movement of the chloroform.

So I'm not sure how your question is meaningful.

Is putting a transmitter in a drum with permission of the owner of the drum the same as putting a GPS tracker on a car without permission of the owner of the car?

For purposes of the 4th Amendment issues, yes. The courts said it's OK to use the tracker to track the movement of the vehicle in public.

Does the fact that this will likely end up in the Supreme Court pretty much indicate that these are two different things?

I don't think it's like that it will end up in the Supreme Court. So since there is no such fact, that purported fact can't signify anything.

Whereas the court cases I cited are the same or substantially the same as the issue of this thread, and are the basis of the cases going up to the Supreme Court?

Which cases did you cite?

You talked about a case (U.S. v. Antoine Jones) whose conclusion is that evidence from an illegal warrantless search is not admissible. And I pointed out that that isn't the question here. The question is whether or not tracking the movements of a vehicle with a GPS tracker is legal without a warrant. No one in this dispute is arguing that evidence from an illegal search should be admissible.*

The other one you metioned was Karo (which I've also addressed), but you mischaracterized the decision. You said, "US vs. Karo has ruled that a seizure of one's property occurs once police attach anything to the property that meaningfully interferes with the property's use." In Karo, the court specifically said that inserting the tracker wasn't illegal. Nor was it illegal to turn it on and track the movements of the vehicle (though that did constitute a search--just not an unreasonable one). It ruled that continuing to use the tracker other than for gathering information about the movement of the vehicle in public was illegal. And, as I pointed out, that illegal part of the search didn't justify overturning the verdict because they already had enough other evidence to get the warrant they obtained using the info from the illegal part of the search.

*ETA I was relying on your description of the Antoine Jones case. I just looked it up and find that not only is it not a Supreme Court decision, it is, in fact, the decision of the 3-judge panel from the appellate court in the very case in question (the GPS tracker). The current case cannot possibly be precedent. And again, the decision of the full appellate court, much less that of a 3-judge panel, cannot override Supreme Court decisions. And what the panel said is that the reason why they believe the search using the GPS tracker was illegal was that its use was "prolonged". So again, your arguments about the illegal part being the attaching of the device or the specific technology of the device is completely off track.

 

[Rougarou]

The courts have said that if you're in public, you don't have a reasonable expectation of not being subject to interception, even if the person listening in is using technology to enhance their senses.

I'm curious to see the rulings you're talking about here if you can find some links.

 

[JoeTheJuggler]

It is the act of placing a device on a car that I believe is an unwarranted intrusion.

The Supreme Court precedents I have been citing disagree with you. The courts have ruled that inserting the device is not even a search (by definition). It becomes a search when the device is activated and they begin using it to track something. And they've repeatedly ruled that tracking a vehicle in public without a warrant is legal. It becomes illegal if they use the device to track something where there is a reasonable expectation of privacy.

ETA: In the current case, U.S. v. Antoine Jones, the defense isn't even making the case that attaching the device without a warrant was illegal. They're saying that the prolonged use of the devise to track the movement of the vehicle in public was illegal. I don't know if the way the device was gotten into the car was any different than the way the devices in those other cases was gotten into the vehicle (by planting it in something that was sold to the defendant). At any rate, it's not at issue in this case either. If the government had committed an unwarranted intrusion to install the device (such as by entering a locked garage or some such, as I've been saying), it would be illegal, but the issue wouldn't be at all the same as what the issue actually is.

From the PDF link with the 3-judge panels decision, there is a summary of the facts and how the GPS was installed:

During 2004, law-enforcement agents began investigating
Antoine Jones, who owned and operated a nightclub located in
Washington, D.C., for possible cocaine trafficking. Those agents
used various investigative techniques, including visual
surveillance (R.M. 74), a fixed camera (id.), and a wire intercept
(App. 289), to link Jones with his coconspirators and with
suspected “stash” locations for illegal drugs (App. 220). On
September 16, 2005, the government obtained a warrant from a
federal judge in the District of Columbia authorizing it, in the
District of Columbia and within ten days, to covertly install and
monitor a GPS tracking device on a Jeep Grand Cherokee owned by
Jones’s wife and primarily used by Jones. Agents subsequently subsequently
obtained search warrants for various locations, which they executed
on October 24, 2005 (R.M. 83-84, 133-36, 221-24).

And the search warrants turned up the evidence to convict Jones.

The defense asked to have the GPS evidence suppressed and lost that motion. On appeal, the 3 judge panel of the appeals court ruled:

Jones appealed, and a panel of this Court (Ginsburg, J.,
joined by Tatel, J., and Griffith, J.) reversed, holding that the
“prolonged” monitoring of the public movements of Jones’s Jeep
through GPS tracking violated the Fourth Amendment.

The panel said that Knotts doesn't apply (that is, that the present case is distinguishable) because the Knotts tracking device was only used to track a single "discrete journey" while the GPS tracker was used to track Jones' vehicle's movement in public over a month's time.

I see nothing in the case law that says there is a time limit on how long police can surveil someone's movements in plain view, so I think the full appellate court is likely to reverse the decision of the panel and uphold the original conviction.

 

[JoeTheJuggler]

I'm curious to see the rulings you're talking about here if you can find some links.

SC decisions are easy to find. You can read a Wiki summary or you can see the actual text of the decisions.

For example:

U.S. v. Karo: Wiki or text of decision

U.S. v. Katz:

wiki or decision


Kyllo v. U.S.
wiki or decision

U.S. v. Knotts
Wiki just has a stub decision

The 3-judge appellate court panel decision in the case at hand, U.S. v. Antoine Jones, is linked to from the Wired article mentioned in the OP.

ETA: Here's the direct link to that PDF: http://www.wired.com/images_blogs/threatlevel/2010/09/gps.pdf

We probably all should have read that document first to avoid debating irrelevant issues rather than rely on INMR's description of the case. (See my previous post. The cops had a warrant to install and monitor the GPS device. The issue is whether or not prolonged tracking of the vehicle's movements in public are a violation of the 4th Amendment.

Again, the case law is as I've described it. It depends on whether or not there is a reasonable expectation of privacy, and the courts have consistently said there is no such thing for the movement of a vehicle in public. I see no reason at all to conjecture that there is a time limit that would change the outcome of the legal test.