November 01st 2011 by Jeff Hammerschmidt
As the Supreme Court prepares to take up a GPS surveillance case that is expected to result in the most important Fourth Amendment decision in a decade, a bipartisan group of legal experts and law enforcement officials issued a report saying that a warrant should be required by police to conduct any GPS tracking that lasts longer than 24 hours.
The report (PDF), released by the Constitution Project, a D.C. think tank, also said law enforcement should be required to obtain a warrant before placing a GPS device on a suspect’s property, such as a vehicle.
“Law enforcement should be permitted to use these powerful tracking tools, but only where they can demonstrate probable cause and obtain a warrant,” the Constitution Project report says. “If such tracking is not considered to be a search covered by the Fourth Amendment’s warrant requirement, then law enforcement would be permitted to conduct unlimited GPS tracking on anyone, anywhere and could do so for illegitimate reasons or for no reason at all.”
The report recognized that the courts have, until recently, been hesitant to examine Fourth Amendment implications of new technologies until the role of such technologies in society became clearer. But the report indicates that now is the time for such examination.
“[T]racking technologies have now advanced well beyond the use of radio-signal beepers,” the report states. “These technologies, including tracking of cell phone location information and the use of GPS technology, are now far more sophisticated and precise, and more significantly, they are capable of providing continuous monitoring and the compilation of vast databases of information about individuals’ daily movements.”
The report referenced the case that the Supreme Court will be hearing this year, United States v. Jones,131 S. Ct. 671 (2011).
“The Supreme Court recently granted review of a decision by the U.S. Court of Appeals for the District of Columbia Circuit holding that continuous GPS monitoring of a car’s every movement for four weeks straight does infringe on a reasonable expectation of privacy.”
The report also encouraged legislative remedy from Congress in the event the Supreme Court rules in favor of warrantless GPS and cell phone location tracking by law enforcement.
“[E]ven if the Supreme Court disagrees with our Constitutional analysis, we urge that Congress should adopt legislation to implement these limits. We also recommend that Congress should amend the Electronic Communications Privacy Act (ECPA) to require the government to obtain a warrant based upon probable cause in order to access cell phone location information.”
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