Tuesday, 27 February 2007

Posner's GPS society

I finally got around to reading U.S. v. Garcia, Case No. 06-2741 (7th Cir. February 2, 2007). I figured the hysterical blog posts were overstating Judge Posner's opinion for the Seventh Circuit. But I may have been wrong.

In Garcia, the defendant was charged with crimes relating to making methamphetamine. The police had received tips that the defendant was making meth, and they gathered evidence by tracking his car. Instead of assigning an officer to follow the car, they placed a GPS device under the rear bumper.

The police placed a GPS (global positioning system) "memory tracking unit" underneath the rear bumper of the Ford. Such a device, pocket-sized, battery-operated, commercially available for a couple of hundred dollars (see, e.g., Vehicle-Tracking, Incorporated, "GPS Vehicle Tracking with the Tracking Key,"www.vehicle-tracking.com/products/Tracking_Key.html, visited Jan. 21, 2007), receives and stores satellite signals that indicate the device's location. So when the police later retrieved the device (presumably when the car was parked on a public street, as the defendant does not argue that the retrieval involved a trespass), they were able to learn the car's travel history since the installation of the device. One thing they learned was that the car had been traveling to a large tract of land. The officers obtained the consent of the tract's owner to search it and they did so and discovered equipment and materials used in the manufacture of meth. While the police were on the property, the defendant arrived in a car that the police searched, finding additional evidence. [Slip Op. at page 2]

The court held that this did not constitute either a "seizure" or a "search" under the Fourth Amendment. The police therefore were not required to have a warrant or probable cause — or even a reasonable suspicion that Mr. Garcia had committed a crime.

Under this rule, the police are free to attach GPS tracking devices to any car at any time, and they can probably do it for any purpose. So long as they avoid direct harassment or a similar misstep, they can track protesters who exercise their First Amendment rights. They can track citizens with information embarassing public officials. They can track ethnic Arabs. And it's (apparently) legal.

I think I agree with the court on the seizure question. The police installed the device without the defendant's knowledge, so he was not deprived of the free use of the car. The device didn't take up any space in the passenger or storage compartments, so it didn't diminish his enjoyment of the car. I suppose the slight additional weight may reduce the car's gas mileage, so it might have imposed a slightly increased cost of operating the car. But that cost is probably negligible, impossible to measure, and overwhelmed by the weight of other cargo. So I would have a hard time calling this a "seizure" of the car.

I think I disagree on the search question, however. Judge Posner wrote (slip op. at pages 4–6):

The Supreme Court has held that the mere tracking of a vehicle on public streets by means of a similar though less sophisticated device (a beeper) is not a search. United States v. Knotts, 460 U.S. 276, 284-85, 103 S. Ct. 1081, 75 L. Ed. 2d 55 (1983). But the Court left open the question whether installing the device in the vehicle converted the subsequent tracking into a search. Id. at 279 n. 2. […]

If a listening device is attached to a person's phone, or to the phone line outside the premises on which the phone is located, and phone conversations are recorded, there is a search (and it is irrelevant that there is a trespass in the first case but not the second), and a warrant is required. But if police follow a car around, or observe its route by means of cameras mounted on lampposts or of satellite imaging as in Google Earth, there is no search. Well, but the tracking in this case was by satellite. Instead of transmitting images, the satellite transmitted geophysical coordinates. The only difference is that in the imaging case nothing touches the vehicle, while in the case at hand the tracking device does. But it is a distinction without any practical difference. […]

This cannot be the end of the analysis, however, because the Supreme Court has insisted, ever since Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), that the meaning of a Fourth Amendment search must change to keep pace with the march of science. So the use of a thermal imager to reveal details of the interior of a home that could not otherwise be discovered without a physical entry was held in Kyllo v. United States, 533 U.S. 27, 34, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001), to be a search within the meaning of the Fourth Amendment. But Kyllo does not help our defendant, because his case unlike Kyllo is not one in which technology provides a substitute for a form of search unequivocally governed by the Fourth Amendment. The substitute here is for an activity, namely following a car on a public street, that is unequivocally not a search within the meaning of the amendment.

Fourth Amendment jurisprudence grew up in an era when practical constraints (like manpower and cost) limited surveillance to situations where crime was reasonably probable. Our society's balance between liberty and government power depended on these practical constraints. When a constraint is removed, the balance is upset. This is one of the most fascinating themes of science fiction literature. Imagine some activity that is limited today by practical constraints. Then imagine a technology that removes the constraint and examine the implications of our current laws and values when the activity is unrestrained. Unfortunately, Judge Posner is writing law and not science fiction.

Judge Posner recognizes that a tipping point will come when some new technology allows police to gather information quickly and cheaply on a massive scale where it would otherwise require expensive efforts. At that time, Judge Posner writes, we will have to reexamine the Fourth and Fifth Amendments to see if sui generis violations occur. He even acknowledges that "programs of mass surveillance of vehicular movements" may require the courts "to decide whether the Fourth Amendment should be interpreted to treat such surveillance as a search." (Slip op. at page 8)

Unfortunately, Garcia precludes this possibility and requires its own reversal whenever Judge Posner feels that day has come. If one instance of an act is not a search under the Fourth Amendment, as Judge Posner insists, then two instances of the same act is also not a search. How many does it take? I can't think of a good reason to pick any number. Either the act has Fourth Amendment implications or it doesn't.

The court expressly ignored the possibility that a trespass occurred because Mr. Garcia didn't raise it. (The court assumed the GPS device was retrieved while the car was parked on a public street.) Initially, I thought this might be the answer to my troubling Fourth Amendment concerns, but it isn't. Even if the police retrieve the device while the car is parked in a public place, the fact of tracking on a private road might provide some basis for finding that a search occurred. I don't think this makes me feel better, however, for two reasons. First, most people simply don't drive on many private roads. Second, I don't think Fourth Amendment rights should be that serendipitous — my rights could be different on Tuesday and Wednesday, depending on my schedule.

I don't have a good answer to these issues yet. The only thing I can say for sure is that Judge Posner's reasoning makes me uncomfortable because it is absolute.

Posted at 7:45:30 AM | Permalink

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Topics: Cyberlaw, Privacy, Technology
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