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U.S. Supreme Court: GPS Trackers Are a Form of Search and Seizure (theatlantic.com)
280 points by kposehn on Mar 31, 2015 | hide | past | web | favorite | 51 comments



I'm so pleased this is a unanimous decision. I hope the phone metadata issue comes before the supreme court. If they are unanimous on this, then I would guess they would rule that metadata on cell phone use is in effect a GPS tracking method. It should fall under the same category.


This and the earlier GPS case, Jones, aren't based on some broad idea that the government can't track you without a warrant. They're based on the fact that placing the GPS on your vehicle violates your property right. You don't have any property right in phone metadata--it's the phone companies data collected for its own purposes. This doesn't apply to Stingray either. In the GPS cases, the government is putting a device on your car that broadcasts your position. With a stingray, your cell phone is reaching out into the world and giving you away.


The comment above (by rayiner) is completely correct. Cell phone tracking has more to do with third party doctrine and the Stored Communications Act than with this case.[1][2]

[1] http://en.wikipedia.org/wiki/Third-party_doctrine

[2] http://en.wikipedia.org/wiki/Stored_Communications_Act


Question about the third party doctrine. If I hand google drive an encrypted file, do I have a reasonable expectation of the privacy wrt the decrypted data?


Well, the encrypted file would probably not have a "reasonable expectation of privacy". The government would probably acquire the encrypted version from Google, then decrypt it; I don't see why any court would make a finding with respect to the expectation of privacy of the decrypted file.


> You don't have any property right in phone metadata--it's the phone companies data collected for its own purposes.

I'd disagree with that. It's my phone, and the metadata collected by the phone company is done with my consent and under certain terms. If the terms change, I get to change my consent if I want.

It'd be like the FBI sneaking a bug into the lamp I bought at Lowes.

Obviously we're both not lawyers, so there's probably a whole bunch of stuff we're both missing (turns out law is hard).


There is a difference between "your information" and "information about you." Not just a legal one, but a epistemological one. AT&T doesn't need your permission to keep track of requests on their network any more than Lowes needs your permission to keep track of who buys a lamp.

That said, this is an issue where nitpicky legal and technical analysis is probably going to take a back-seat to politics. After Riley v. California, it seems quite possible that the Supreme Court is ready to say: "it doesn't matter that Mark Zuckerberg can see all your photos if he wants--the 4th amendment applies to the cloud because we want it to."


I agree, the prior rulings are mostly from the pre-internet days, and entirely from the pre-Facebook/AT&T metadata-used-to-track-folks days.

I think the legal theory will change, but it's a good point that this specific ruling doesn't impact that theory.


>Obviously we're both not lawyers

rayiner is in the Northwestern law department, so he is likely to be a lawyer.


I think he just went to law school at NWU. :)


Oh, I'm sorry to not have noticed that.

Maybe forget what I wrote, then.


rayiner is actually a lawyer


Remember folks, this doesn't prevent the government from tracking you; It just means that if they try to use the evidence gained from tracking you in a court of law, you can pay a lawyer to get that evidence suppressed.

The CIA can still use tracking devices and so can the police in a state without good public defenders just as the NSA is free to go beyond the bounds of a FISA court warrant. Nobody checks them and the warrants' validity is never brought before an appellate court.

If you aren't familiar with suppression of evidence, here is an intro to the Exclusionary Rule: http://lawcomic.net/guide/?p=1585


At least in theory, actual physical installation of a tracking device without authorization would violate trespassing laws in many cases. So even if the government doesn't try to introduce the results as evidence, it might be possible to file a civil trespassing suit. But, I have no idea what the odds of actually prevailing on that are (probably low).


My reading of this is that the problem is less with the data and more with the placing of a tracker on a person or their property because the fourth amendment says you have a right to be secure in those things.


I think the key word is unreasonable. I can reasonably expect that a GPS tracker has not been placed on my car. On the other hand, I knowingly and voluntarily carry a cell phone, so the question is then whether I could reasonably expect to be able to be tracked. I think some people might not understand that this is possible, but a growing number do understand this.


This is excellent news. I had begun to worry that the rapid advancement in technology may take awhile to hold up to scrutiny. We still need a clear concise decision in regards to software deployed on hardware for search purposes.


Note that the opinion just says that it's a search within the fourth amendment context. The court did not make any determination on whether it was a reasonable search and/or seizure since the state court never even considered that aspect of the case.

So yes, it's good that it's considered a search and/or seizure, but the case could still come back that it is reasonable, and thus legal.


After reading your point I wondered whether the "reasonable" distinction had any bearing on the requirement for a warrant. The warrant requirement is what I'm most interested in here. I came across http://en.wikipedia.org/wiki/Motor_vehicle_exception which seems particularly relevant. Apparently motor vehicles have a lower expectation of privacy, so I wonder whether this means that a separate ruling is needed on whether GPS trackers on motor vehicles need a warrant.


As the article states, the Supreme Court has already ruled that putting a GPS tracker on a vehicle requires a warrant. http://en.wikipedia.org/wiki/United_States_v._Jones_(2012)


Yes, this ruling is a pretty straightforward application of United States v. Jones, rather than much of a development in 4th-amendment law. The opinion [1] is 4 1/2 pages long, and doesn't do much more than say exactly that: it points out that the lower court's holding is plainly incompatible with Jones, and sends it back down to be reheard accordingly.

[1] http://www.supremecourt.gov/opinions/14pdf/14-593_o7jq.pdf


Which is fine as well as that result could be taken to the Supreme Court. I do feel that life long requirements are just ridiculous, I can see wearing one during a probationary period provided that requirement is also on other probationers. However if your trying to only select one type of probationer then I have to ask, why are they out?


Still a much greater hurdle for the securistas to have to surpass than if it wasn't!


I've long believed that the best way to interpret this part of the 4th Amendment is that people have a right to be free of scrutiny unless there's a reason to suspect something. If there's nobody with a legitimate belief that I'm doing something wrong, then nobody's got the right to poke into my business.

My interpretation yields a pretty simple rule; the path we've been following for some time yields lots of exceptions and subjective judgments.


That's not an interpretation rooted in the text of the amendment. An equally simple rule is that the government needs a warrant whenever a search impinges on your property right (person, house, papers, and effects are all things you have a property right in).


Now they need to say the same about those plate recognition systems. Different technology, same effect.


Indeed! Plate scanning, or face scanning, is a different matter as it targets the entire population not convicted criminals.


I don't think you are going to win that argument though. I agree with your sentiment however.


Hopefully this kind of thinking is carried over to fake cell phone towers used to have individual's cell phones report in their location and usage.


Good: the decision

Bad: the reasoning. They literally weaselled out of ruling on actual data and the implications of collecting it, instead ruling on the fact that TO collect the data, the tracker must be placed on your or your property, which would be trespassing. This makes the ruling useless precedent-wise, and gives the government a simple hurdle to jump over - find a way to attach tracker to person/device that the SCOTUS would not find to be a trespass. This is similar to the earlier case (which they ruled the same on for the same treason) UNITED STATES v. JONES ( http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf )

I really wish they'd collect their balls, and actually rule on the real issue at hand. They even mention in the USA v Jones case that they realize that they will eventually have to. See page 32. They clearly understand what is at hand and why it is important. Just do it already!


I think it's safe to say the vast majority of HN readers (and myself) agree with you, but historically, the SC tries to make the narrowest decision possible.

When the SC makes overly broad decisions, they have been ignored by the executive and legislative branches. The most famous such case is Dred Scott v Sanford, where the executive and the legislature refused to enforce the broad judgement that slavery be protected, and popular sovereignty be disregarded, in the territories. [1]

Note that the court is also taking this gradual, narrow approach with regard to gay and lesbian rights, starting with the Defense of Marriage Act and continuing with the challenges of the constitutionality of marriage restrictions in the states.

[1] http://en.wikipedia.org/wiki/Dred_Scott_v._Sandford


This is actually a good thing. They found a way to do the right thing in the context of this case, with as little side effect as possible. No matter how much I too wish for that side effect, it's important to recognize that the less the judicial branch legislates from the bench, the better off we are.


Remember folks, this doesn't prevent the government from tracking you; It just means that if they try to use the evidence gained from tracking you in a court of law, you can pay a lawyer to get that evidence suppressed.

The CIA can still use tracking devices and so can the police in a state without good public defenders.

If you aren't familiar with suppression of evidence, here is an intro to the Exclusionary Rule: http://lawcomic.net/guide/?p=1585


This isn't true. ยง1983 gives you civil remedies for violation of your rights, including attorney's fees and punitive damages.

I'm too lazy to look it up, but I believe you could also seek an injunction to force the government to stop.


I wonder if this will result in a blanket requirement that getting ANY GPS data for an American Person would require a warrant.

The significance is that this pertains to a "GPS Tracer/Tracker" being "attached". How about a modern smartphone? (As the article touches upon)

Is the mere presence of an already attached GPS system enough to trigger the purview of this ruling? I suspect not but hopefully this will be put to the test soon.


No if you read the opinion they very specifically do not rule on whether collecting the data is legal, they only ruled that in the case of GPS trackers you must actually place the tracker on the item to be tracked which is considered trespass of property which means it requires a warrant.


Say what you will about Roberts, he has done a lot to advance individual freedoms in this court.


True. People polarize SC judges like they do politicians. However, they are often more nuanced in their decisions. You could strongly agree with some rulings AND strongly disagree with others from the same justice.


I wouldn't be surprised if a prosecutor used historic data of repeat sex offenders to justify it as a reasonable search. Given the horrors of sex crimes, particularly committed against children, I don't think this would be hard to argue.


The Supreme Court was careful not to rule on that; they ruled only that it was a search, not that it was constitutionally unreasonable. There is good coverage of this decision by Orin Kerr at http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015... .


I'm not sure if you read the article but this is monitoring after the individual has served his/her time.


Sex offenders have one of the lowest rates of reoffending.


Link?

Also, I'm sure any crime that puts you in jail for longer periods of time have lower rates of reoffending, since you're in jail. Murderers also likely have low rates of reoffending.


Reoffense tends to be measure a number of years once released (such as 5 years) and not over a lifetime (because in that case the length of a prison sentence would matter).

Part of it has to do with why crimes are committed. Most sex offenders and murders are not serial rapists/killers, and as such only offend in very specific situations (such as killing a wife who was caught cheating). These situations are likely to not happen again. Compare this to other crimes which are more related to crimes of need. Joining a gang for the protection it offers (even if it doesn't actually offer protection, the individuals think it does) is not a situation that goes away. If anything during prison they become closer to the gang as they group up within prison to survive. Someone who was addicted to drugs is really likely to relapse into their addiction. Most individuals selling drugs have even less legal opportunities to earn money once they get out than before. And this isn't even getting into the class aspect of things. It isn't something that is really captured in a single paper but rather a larger topic.


> Reoffense tends to be measure a number of years once released (such as 5 years) and not over a lifetime (because in that case the length of a prison sentence would matter).

It matters anyway. If you give someone a long prison sentence, their personality will be different when they get out. Crime is a youth phenomenon.


In which case we should be focusing on the age when they committed their offense as well as (or maybe instead of) the crime they committed. And this is assuming there is significant differences in the age of release per crime.


You mean murderers who have been caught. The rate of solving murders has declined a lot in the last 50 years. NPR just did a special on that, but I couldn't find the link. Does anyone know about the rate of re-offending of murderers who have not been caught? Of course, in order to find that out, you have to solve the murders and look at the behavior of the murderer before they were caught or died.


They have only said GPS trackers are a form of search.

They haven't determined if GPS Trackers are an unreasonable form of search for a recidivist sex offender.


So how does this play into "metadata" phone tracking by the NSA? And Stingrays? AFAIK, those report positions.


It doesn't affect the NSA because the NSA never brings criminal charges against people, so they don't have to worry about a defense attorney getting their evidence suppressed.

If you aren't familiar with suppression of evidence, here is an intro to the Exclusionary Rule: http://lawcomic.net/guide/?p=1585


I'd imagine the EFF is looking for an NSA/Stingray lawsuit to apply this decision to right now.




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