Pubdate: Fri, 24 Aug 2012
Source: Washington Post (DC)
Copyright: 2012 The Washington Post Company
Contact: http://mapinc.org/url/mUgeOPdZ
Website: http://www.washingtonpost.com/
Details: http://www.mapinc.org/media/491
Authors: James Ball and Craig Timberg

DEBATE INTENSIFIES OVER THE USE OF GPS DATA AS A POLICE TOOL

Privacy Advocates Decry Recent Appellate Ruling Against Drug Runner

The rapid spread of cellphones with GPS technology has allowed police 
to track suspects with unprecedented precision - even as they commit 
crimes. But the legal fight is only now heating up, with prosecutors 
and privacy activists sparring over rules governing the use of 
powerful new investigative tools.

The U.S. Court of Appeals for the 6th Circuit stirred the debate last 
week when it supported police use of a drug runner's cellphone 
signals to locate him- and more than 1,000 pounds of marijuana - at a 
Texas rest stop. The court decided that the suspect "did not have a 
reasonable expectation of privacy" over location data from his 
cellphone and that police were free to collect it over several days, 
even without a search warrant.

The decision riled civil libertarians, who warned that it opened the 
door to an extensive new form of government surveillance destined to 
be abused as sophisticated tracking technology becomes more widely 
available. On Monday, six days after the appeals court ruling, the 
U.S. attorney in Arizona cited it in defending the use of cellphone 
location data to help arrest a suspect accused of tax fraud.

"We're looking at the very frightening prospect of an excessive 
degree of government intrusiveness in our personal lives," said 
Gerald L. Gulley Jr., the Knoxville, Tenn., lawyer who represented 
the drugrunning suspect at the Texas rest stop. "I don't think that 
people who go out and buy cellphones necessarily contemplated . . . 
the degree of intrusion in their personal life." Gulley says he'll 
appeal the case.

Many legal experts expect the issue eventually to find its way to the 
Supreme Court, which touched on it in a January ruling that police 
violated the rights of an alleged D.C. drug dealer by placing a 
tracking device on the underside of his car.

About 100 million Americans carry smartphones capable of emitting 
location data almost continuously. Even some less-sophisticated 
devices have such capacity, as do the navigation systems in 
automobiles and some laptop computers. Worldwide, 154 million 
smartphones were shipped to consumers in just the past three months, 
according to International Data, a market analysis firm. (The Global 
Positioning System functions often can be switched off, but that 
deactivates some phone features.)

Changing technology has long strained the legal strictures of the 
Fourth Amendment, whose prohibition on "unreasonable" searches and 
seizures was born of 18th-century law and guides the legal standards 
for when police can tap phones, use tracking devices and monitor a 
suspect's Internet activity.

Cellphones always have been trackable to some degree, as users moved 
among towers that carried the signals necessary to make the devices 
work, creating an electronic record in the process. But GPS 
technology is far more sophisticated, narrowing locations typically 
to within a few feet. Many smartphones relay location data to central 
servers throughout the day, as users check traffic, search for nearby 
restaurants or scan weather maps.

Combined with information from toll booths, credit card machines and 
security cameras, people in highly wired nations often move within a 
web of data that can allow governments to pinpoint individual 
movements down to the second.

The location data become even more potentially valuable when 
associations among people can be mapped, as they are on social media 
networks. A British research team tracking 25 volunteers in a Swiss 
town used GPS data, text messages and calling history to pinpoint 
current movements and predict where individuals were likely to be 24 
hours in the future.

Researcher Mirco Musolesi, who teaches computer science at the 
University of Birmingham, said police could use location data to 
track suspects, predict crime hot spots, even anticipate political 
protests if enough potential participants are known. Downloading all 
the data on a single cellphone tower, as can be done easily with 
current technology, could allow police to identify those present at a 
demonstration.

Musolesi said the researchers in their experiment had to sign waivers 
promising to not use the data to determine where the 25 volunteers 
lived. "It's just ethics that stops us doing this, as the data are 
there," he said. "You can . . . construct information about behavior 
- - if he's in a movie theater, find out what he's seeing. It's quite 
fine-grained, so you can track shops. There are big privacy implications."

The Supreme Court's decision in January was narrow - dealing only 
with the issue of the police accessing the suspect's car without a 
valid warrant - and left open the broader question of what rules 
guide government collection of the personal location data.

The appeals court went further in its ruling last week, noting that 
previous court cases have established that information legitimately 
in the public domain - such as an individual's movements on public 
roadways - can be gathered by police in many situations. Improving 
technologies, the court said, are permitted to assist police 
investigations, even if criminals are not aware of the latest techniques.

"When criminals use modern technological devices to carry out 
criminal acts and to reduce the possibility of detection, they can 
hardly complain when the police take advantage of the inherent 
characteristics of those very devices to catch them," the court said.

The Drug Enforcement Administration, which was running the case, 
acquired a court order - although not a search warrant - to monitor 
the suspected drug runner's phone. But the court said neither may 
have been necessary for such cases. (One of the judges on the 
three-judge appellate panel said a warrant was needed.)

"We have two vague opinions and a lot of concern," said Orin Kerr, a 
George Washington University law professor following the issue. "At 
some point in the next 10 years, the Supreme Court is probably going 
to have to figure out how it feels about cellphone location information."

The uncertainty has prompted the Justice Department to tell law 
enforcement officials that, although they may not need search 
warrants when they seek GPS data, it would be wise to get them until 
the courts clarify the issue.

Legislation proposed by Sen. Ron Wyden (D-Ore.) and Rep. Jason 
Chaffetz (R-Utah) seeks to set the standards. "When the Supreme Court 
had an opportunity to settle the question, they all but begged the 
Congress to step in and provide clearer rules," Wyden said.
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MAP posted-by: Jay Bergstrom