Location Tracking After United States v. Jones: Continued Uncertainty Harms Americans’ Privacy

In January, the U.S. Supreme Court issued its landmark decision in United States v. Jones, holding that a Fourth Amendment search takes place when government agents attach a Global Positioning System device to a car and track its movements. ¹United States v. Jones, 2012 BL 14420, 80 U.S.L.W. 4125 (U.S. 2012). While this holding was reassuring in that it made clear that at least some forms of technologically enhanced location tracking fall within the auspices of the Fourth Amendment, the opinion leaves too many vital questions unanswered to gauge its full impact on Americans’ ability to travel free from electronic surveillance. In particular, it is not clear whether the Fourth Amendment requires a warrant and probable cause (rather than reasonable suspicion) when law enforcement agents attach a GPS device to a car, and it is also unclear how the decision applies to what is likely the most common technology of location tracking today: the whereabouts of cellphones.

GPS and cell site technology provide law enforcement agents with powerful and inexpensive methods of tracking individuals over extensive periods of time and unlimited expanses of space as they traverse public and private areas. In many parts of the country, the police have been tracking people for days, weeks, or months at a time without ever having to demonstrate to a magistrate that they have a good reason to believe tracking will turn up evidence of wrongdoing. Today, individuals’ movements can be subject to remote monitoring and permanent recording without any judicial oversight. Innocent Americans can never be confident that they are free from round-the-clock surveillance by law enforcement of their activities. As Justice Sonya Sotomayor recently wrote, “The net result is that GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may alter the relationship between citizen and government in a way that is inimical to democratic society.” ²Id. at 956.

This article provides an overview of the technologies of geolocation tracking, examines why location tracking implicates strong privacy interests, and explains why, under current Supreme Court doctrine, government agents should be compelled to obtain a warrant and demonstrate probable cause before attaching GPS tracking devices to cars and tracking the location of cellphones. This article also argues that Congress should act now to require law enforcement agents to obtain a warrant based on probable cause.

It will likely take years before the constitutionality of location tracking comes before the Supreme Court again, and in the meantime the public faces great uncertainty regarding the extent to which we are free to travel without having our movements electronically tracked.

Current Technologies Allow
For Detailed Tracking
Of Americans’ Movements

Recent technological developments make it possible to obtain geolocation information about the vast majority of Americans with great precision, in both real time and historically, regardless of whether they are tracked through their cellphones or their vehicles or whether the police obtain GPS or cell site data. New technology has given law enforcement an unprecedented new surveillance tool. The U.S. government now has the technical capability to covertly track any one of the nation’s hundreds of millions of cellphone owners, for 24 hours a day, for as long as it likes—as well as everyone who drives a car, whenever they take their vehicle out on the road.

As explained in greater detail in an earlier issue of this publication, cellphones yield several types of information about their users’ past and present location and movements: cell site location data, triangulation data, and GPS data. ³Catherine Crump and Chris Calabrese, Location Tracking: Muddled and Uncertain Standards Harm Americans’ Privacy, 79 U.S.L.W. 1479.

The most basic type of cellphone location information is “cell site” data or “cell site location information,” which refer to the identity of the cell tower from which the phone is receiving the strongest signal and the sector of the tower facing the phone.

In addition to cell site information, law enforcement agents can obtain location data at a high level of accuracy by requesting cellphone providers to engage in “triangulation,” which entails collecting and analyzing data of the precise time and angle at which the cellphone’s signal arrives at multiple cell towers.

Finally, a cellphone that has GPS receiver hardware built into it can determine its precise location by receiving signals from global positioning satellites.

Government requests for cell site location information are usually of two types. One is historical cell site data, which can be used to retrace previous movements, or prospective cell site data, which can be used to track the phone in real time. The availability of historical information and the length of time this information is stored depend on the policies of the cellphone company. According to an internal Department of Justice document obtained by the ACLU through a public records act request, cellphone companies store their customers’ historical location information for significant periods of time: Verizon stores the cell towers used by a mobile phone for “one rolling year”; T-Mobile keeps this information “officially 4-6 months, really a year or more”; Sprint and Nextel store this data for “18-24 months”; and AT&T/Cingular retains it “from July 2008.” ⁴Department of Justice, “Retention Periods of Major Cellular Service Providers,” available at https://www.aclu.org/cell-phone-location-tracking-request-response-cell-phone-company-data-retention-chart (last visited Aug. 17, 2012).

Just as geolocation data can be gathered from cellphones, so, too, can it be gathered from vehicles. There are a number of ways this can be accomplished. As occurred in the recent Supreme Court decision in Jones, the government can physically attach a GPS device to a car. In that case, law enforcement agents installed a GPS device on a vehicle and left the device there for 28 days. During this period, the GPS allowed agents to track the location of the car’s every movement. The device had an antenna that received signals from satellites and used these signals to determine its latitude and longitude every ten seconds, accurately pinpointing its location to within 50-100 feet. Law enforcement agents connected that data to software that plotted the car’s location and movements on a map. The software also created a comprehensive record of the car’s locations.

However, law enforcement agents do not necessarily need to affix a GPS device to a car to track its movements. The increased prevalence of integrated car navigation systems may soon make even this minimal legwork unnecessary. ⁵

See, e.g., United States v. Coleman, No. 07-20357, Order Denying Defendant’s Motion to Suppress Evidence (E.D. Mich. Feb. 20, 2008) (discussing issuance of court order requiring car navigation company to disclose location data to law enforcement).

Tracking People’s Location Can Invade
Their Privacy Because It Reveals
A Great Deal About Them

Location tracking enables law enforcement to capture details of someone’s movements for months on end, unconstrained by the normal barriers of cost and officer resources. ⁶

See United States v. Pineda-Moreno, 617 F.3d 1120, 1124, 2010 BL 187485 (9th Cir. 2010) (Kozinski, J., dissenting from denial of rehearing en banc) (“The modern devices used in Pineda-Moreno’s case can record the car’s movements without human intervention—quietly, invisibly, with uncanny precision. A small law enforcement team can deploy a dozen, a hundred, a thousand such devices and keep track of their various movements by computer, with far less effort than was previously needed to follow a single vehicle.”).

In Jones, the Supreme Court held that a Fourth Amendment search occurred when the government placed a GPS tracking device on the defendant’s car and monitored his whereabouts nonstop for 28 days. ⁷

2012 BL 14420.

A majority of the justices also stated that “the use of longer term GPS monitoring … impinges on expectations of privacy” in the location data downloaded from that tracker. ⁸

Id. (Sotomayor, J., concurring); see also id. (Alito, J., concurring).

As Justice Samuel A. Alito Jr. explained, “Society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalog every single movement of an individual’s car, for a very long period.” ⁹

Id. (Alito, J., concurring).

Sotomayor emphasized the intimate nature of the information that might be collected by the GPS surveillance, including “trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on.” ¹⁰

Id. (quoting People v. Weaver, 12 N.Y.3d 433, 442 (N.Y. 2009)).

While even the limited collection of geolocation information can reveal intimate and detailed facts about a person, the privacy invasion is multiplied many times over when law enforcement agents obtain geolocation information for prolonged periods of time. As the D.C. Circuit Court of Appeals has observed, “A person who knows all of another’s travels can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups—and not just one such fact about a person, but all such facts.” ¹¹

United States v. Maynard, 615 F.3d 544, 562, 79 U.S.L.W. 1254 (D.C. Cir. 2010), aff’d sub nom. United States v. Jones, 2012 BL 14420, 80 U.S.L.W. 4125 (U.S. 2012).

There have always been facets of American life that have been uniquely safeguarded from the intrusive interference and observation of government. Geolocation surveillance threatens to make even those aspects of life an open book to government. As Sotomayor pointed out in Jones, “Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse.” ¹²

Jones, 2012 BL 14420 (Sotomayor, J., concurring) (quotations omitted).

While privacy rights are often conceptualized as belonging to individuals, they are also important because they ensure a specifically calibrated balance between the power of individuals on the one hand and the state on the other. When the sphere of life in which individuals enjoy privacy shrinks, the state becomes all the more powerful:

The net result is that GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may alter the relationship between citizen and government in a way that is inimical to democratic society. ¹³

Jones, 2012 BL 14420 (Sotomayor, J., concurring) (quotations omitted).

Chief Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit has elaborated on this critical point:

I don’t think that most people in the United States would agree with the panel that someone who leaves his car parked in his driveway outside the door of his home invites people to crawl under it and attach a device that will track the vehicle’s every movement and transmit that information to total strangers. There is something creepy and un-American about such clandestine and underhanded behavior. To those of us who have lived under a totalitarian regime, there is an eerie feeling of déjà vu. ¹⁴

Pineda-Moreno, 617 F.3d at 1126 (Kozinski, C.J., dissenting from denial of rehearing en banc). See also United States v. Cuevas-Perez, 640 F.3d 272, 286, 2011 BL 114017 (7th Cir. 2011) (Wood, J., dissenting) (“The technological devices available for [monitoring a person’s movements] have rapidly attained a degree of accuracy that would have been unimaginable to an earlier generation. They make the system that George Orwell depicted in his famous novel, 1984, seem clumsy and easily avoidable by comparison.”).

Furthermore, while the government routinely argues that records of a person’s prior movements deserve less privacy protection than records of where a person travels in real time, this is a meaningless distinction. As one judge has noted, “The picture of [a person]’s life the government seeks to obtain is no less intimate simply because it has already been painted.” ¹⁵

In re Application of the United States for Historical Cell Site Data, 747 F. Supp. 2d 827, 840, 2010 BL 315627 (S.D.Tex. 2010) (citation omitted).

A contrary conclusion would eliminate privacy protections even in real-time data, because police officers would be free to use GPS devices to record vehicles’ travels so long as they waited some minutes before accessing those records, thereby rendering them “historical.”

A Warrant and Probable Cause
for Location Tracking Is Vital
To the Constitution and Innovation

While the Supreme Court held in Jones that affixing a GPS monitor and then tracking a suspect’s whereabouts for weeks constitutes a “search” within the meaning of the Fourth Amendment, it did not address whether it is the sort of search that requires a judicial warrant supported by probable cause. This is unfortunate, as it will likely take years for this question to reach the Supreme Court again.

The warrant and probable cause requirements are essential components of the Fourth Amendment. The function of the Warrant Clause is to safeguard the rights of the innocent by preventing the state from conducting searches solely in its discretion:

Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a heady thing, and history shows that the police acting on their own cannot be trusted. ¹⁶

McDonald v. United States, 335 U.S. 451, 455 (1948).

The warrant and probable cause requirements are especially important here given the extraordinary intrusiveness of modern-day electronic surveillance. Without these requirements, the low cost of collecting and storing geolocation information would permit the police to continuously track any driver and cellphone user.

There Is a Need to Act,
And Congress Is the Appropriate Branch
Of Government to Act

Jones is in some sense a missed opportunity because central questions were left unresolved and it’s likely to take years for these questions to reach the Supreme Court. Congress cannot afford to wait any longer to enact a warrant and probable cause requirement for location tracking. Today Americans’ privacy rights are being violated routinely by invasive location tracking, particularly cellphone tracking.

In August 2011, 35 ACLU affiliates submitted public records requests with state and local law enforcement agencies around the nation seeking information about their policies, procedures, and practices for tracking cellphones. ¹⁷ACLU, Cell Phone Location Tracking Public Records Request, http://www.aclu.org/protecting-civil-liberties-digital-age/cell-phone-location-tracking-public-records-request (last visited Aug. 17, 2012). Supporting documentation demonstrating the factual assertions throughout this section can be found at this webpage. The ACLU received more than 5,500 pages of documents from more than 200 local law enforcement agencies. The responses show that while cellphone tracking is routine, few agencies consistently obtain judicial warrants. The overwhelming majority of the more than 200 law enforcement agencies that provided documents engaged in at least some cellphone tracking. Most law enforcement agencies explained that they track cellphones to investigate crimes. Some said they tracked cellphones only in emergencies, for example to locate a missing person. Only 10 said they have never tracked cellphones.

Many law enforcement agencies track cellphones quite frequently. For example, invoices from cellphone companies indicate that Raleigh, N.C., tracks hundreds of cellphones a year. The practice is so common that cellphone companies have manuals for police explaining what data the companies store, how much they charge police to access that data, and what officers need to do to get it.

Most law enforcement agencies do not obtain warrants to track cellphones, and the legal standards used vary widely. For example, police in Lincoln, Neb., obtain GPS location data on telephones without demonstrating probable cause. Police in Wilson County, N.C., obtain historical cell tracking data where it is “relevant and material” to an ongoing investigation, a standard lower than probable cause.

Yet some police departments do protect privacy by obtaining warrants based upon probable cause when tracking cellphones. For example, police in the County of Hawaii, Wichita, Kan., and Lexington, Ky., demonstrate probable cause and obtain a warrant when tracking cellphones. If these police departments can protect both public safety and privacy by meeting the warrant and probable cause requirements, then surely other agencies can as well.

Moreover, it is not just state and local law enforcement agencies that obtain geolocation data under inconsistent standards. The U.S. attorney’s offices appear to do so as well. The Department of Justice maintains that the government need not obtain a warrant or show probable cause to track people’s location, with only one exception: real-time GPS and triangulation data. Since at least 2007, DOJ has recommended that U.S. attorneys obtain a warrant based on probable cause prior to engaging in these forms of cellphone tracking. ¹⁸Senate Judiciary 2011, The Electronic Communications Privacy Act: Government Perspectives on Protecting Privacy in the Digital Age, at 7 (testimony of James A. Baker, Associate Deputy Attorney General, DOJ), available at http://1.usa.gov/IsojNy (last visited Aug. 17, 2012).

However, not all U.S. attorney’s offices obtain a warrant and show probable cause even in the limited circumstances in which DOJ recommends that they do. Litigation brought by the ACLU and the Electronic Frontier Foundation under the Freedom of Information Act reveals that U.S. attorney’s offices in the District of New Jersey and the Southern District of Florida have obtained even the most precise cell tracking information without obtaining a warrant and showing probable cause. ¹⁹ACLU, ACLU v. Department of Justice: ACLU Lawsuit To Uncover Records of Cell Phone Tracking, Sept. 6, 2011, http://www.aclu.org/free-speech/aclu-v-department-justice (last visited Aug. 17, 2012). Because the FOIA litigation focused on only a small number of U.S. attorney’s offices, it may well be that many other offices also do not follow DOJ’s recommendation.

The records the ACLU has obtained from local, state, and federal law enforcement agencies conclusively demonstrate that warrantless geolocation tracking is not a merely theoretical privacy risk. Americans’ privacy rights are routinely violated by warrantless cellphone tracking.

Congress is in a good position to put an end to these violations. In his concurrence in Jones, Alito wrote: “In circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative.” ²⁰2012 BL 14420. Congress should act not just to protect privacy but also to safeguard law enforcement investigations. Given the changes in Fourth Amendment jurisprudence, law enforcement faces a very uncertain standard for proceeding with searches, operating in emergencies and securing information from telecommunications providers.

The GPS Act Would Safeguard
Americans’ Privacy While Allowing
Law Enforcement to Do Its Job

In Congress, there are two pending bipartisan efforts, both titled the Geolocation Privacy and Surveillance Act, that would require law enforcement agents to obtain a warrant to access location information. In the House version, H.R. 2168, the heart of the act is the requirement that “a governmental entity may intercept geolocation information or require the disclosure by a provider of a covered service of geolocation information only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure.” H.R. 2168, §2602(h)(2).

In turn, Fed. R. Crim. P. 41 provides: “A warrant may be issued for any of the following: (1) evidence of a crime; (2) contraband, fruits of crime, or other items illegally possessed; (3) property designed for use, intended for use, or used in committing a crime; or (4) a person to be arrested or a person who is unlawfully restrained.”

Thus, through its incorporation of the Rule 41 standard, the GPS Act strikes a reasonable—and constitutionally necessary—balance between privacy and law enforcement interests. Under this provision, for example, when law enforcement agents have a good reason to believe tracking the location of a cellphone will turn up evidence of a crime, or that a cellphone was used during the commission of a crime, law enforcement agents will have little difficulty persuading magistrate judges to grant them permission to engage in location tracking.

Further, the GPS Act contains a limited number of exceptions for:

• emergency access when “it is reasonable to believe that the life or safety of the person is threatened”;

• foreign intelligence surveillance covered by the 1978 Foreign Intelligence Surveillance Act;

• law enforcement emergencies where there is not time to secure a warrant;

• to retrieve lost or stolen phones;

• to allow parents or guardians to monitor children; and

• when the user has consented.

The GPS Act could be strengthened through the inclusion of reporting requirements regarding law enforcement agencies’ collection of geolocation information. To be sure, law enforcement agencies may have a legitimate interest in keeping the details of specific investigations secret, but when it comes to aggregate statistical information about the use of specific surveillance techniques, the public interest is best served through disclosure.

Covert surveillance techniques are by their nature secret, which has important ramifications for the ability of both Congress and the public to engage in oversight. Robust reporting requirements play a valuable role in filling what would otherwise be a void of information regarding the activities of government.

For example, each year the Administrative Office of the U.S. Courts produces aggregate reports on the use of wiretap authorities by law enforcement agencies. Without revealing any sensitive investigative details, these reports give Congress and the public meaningful insight into the frequency with which the government uses this surveillance technique and the kinds of crimes that it is used to investigate.

Conclusion

In this time of rapid technological change, it is especially appropriate for Congress to step in and regulate the use of surveillance technology by the government. The warrant and probable cause requirements strike the appropriate balance, ensuring that legitimate investigations can go forward without eroding the privacy rights of innocent Americans.