Government Tracking

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Federal Investigations and Privacy

No one can deny that data gathered from global positioning technology can be incredibly valuable in an investigation. Data acquired from location technology has helped solve murder, drug, robbery, and a slew of other investigations. Despite the potential benefits of this technology, one should not forget that all American citizens – even those suspected of criminal acts – are protected by the fourth amendment. However, as location tracking technology has grown more sophisticated, it has become increasingly difficult to define what constitutes an “unreasonable search.”

Defining “Search”

Katz v United States (1967), a Supreme Court case involving the use of an electronic listening device outside a phone booth, established that “a ‘search’ exists for Fourth Amendment purposes where (1) a person has a subjective expectation of privacy, and (2) society is willing to recognize the expectation of privacy as objectively reasonable.” Unfortunately, the question of where exactly a suspect has a “reasonable” expectation of privacy is often difficult to answer.

State Rulings

Individual states vary on this issue. In the 2001 California case People v Zichwic, the court ruled that “There can be no objectively reasonable expectation of privacy in what is regularly exposed to public view…. It does not amount to a search to… attach a tracking device, so long as a police officer does so from a place where the officer has a right to be.” However, in State v Jackson (2002), the Washington Supreme Court ruled that “the GPS device does not merely augment the officers’ senses, but rather provides a technological substitute for traditional visual tracking.” Because it is unlikely that a live officer would be able to maintain constant 24-hour surveillance of an individual, the court concluded that “citizens of this State have a right to be free from the type of governmental intrusion that occurs when a GPS device is attached to a citizen’s vehicle, regardless of reduced privacy expectations due to advances in technology.”

Federal Rulings

Federal law also remains unclear on the issue, although there appears to be a national trend toward allowing a more liberal use of global positioning technology in federal investigations. The following are a few noteworthy cases that have occurred in the past three decades:

In February of 2010, the Obama Administration argued for the right “to gain access to cellular provider records documenting the time and location American citizens place cell phone calls” without first obtaining a warrant. The Administration claimed that because individuals have “no reasonable expectation of privacy” in public spaces, government officials should not require a warrant to retrieve mobile phone location records from cell phone service providers. This notion, understandably, alarmed civil rights groups such as the Electronic Frontier Foundation and the American Civil Liberties Union. Although a federal appeals court rejected the assertion, the prospect of warrantless access to cell phone records is cause for unease.

The Future of Government Tracking

Although many would assert that the United States could not possibly ever arrive at the “Big Brother” state illustrated in George Orwell’s 1984, many others would argue that we’re already well on our way. In August 2010, a senior judge stated that there is “something creepy and un-American” about someone crawling under a vehicle “and attach[ing] a device that will track the vehicle’s every movement and transmit that information to total strangers.”

We have already seen how vehicle tracking may lead to cell phone tracking, and with it, monitoring of all mobile phone records. What will keep all personal information – what we say, do, write, and so on – from transferring to the public sphere? The trend toward warrantless location tracking warns that there may come a day when our Fourth Amendment protections nearly disappear altogether.

For sources, see our References page.

Location Services

How much tracking is too much?