In a monumental decision that will have no practical impact, the United States Court of Appeals in Philadelphia ruled yesterday that law enforcement agencies need a warrant to install a GPS tracking device on your car. The court considered the case of the Katzin brothers, some local hoodlums who the cops suspected of being involved in a series of pharmacy robberies. The cops put a “slap on” GPS device on the Katzin brothers’ van, tracked them to the scene of some of these robberies, arrested, prosecuted and convicted them.
Of course, last year in Jones v. United States, the US Supreme Court weighed in and ruled that the warrantless installation of GPS devices onto a car violated the privacy and property interests of the car’s owners, and required the results of the monitoring of that GPS device to be suppressed.
But no. The government unsuccessfully argued in the Katzin brothers’ case – ‘our GPS device is completely different from that used in Jones.’ ‘Ours did not have to be wired into the car – it had its own battery!’
The government made a lot of arguments about why it should be allowed to slap a tracking device on anyone’s car without probable cause and without a warrant, despite the fact that the Supreme Court said it was unconstitutional. It’s kind of like the guy who argues, “my dog didn’t bite you; my dog is peaceful; my dog doesn’t bite; I don’t own a dog.”
First, the government argued that the court had previously allowed the installation of a location beeper, and the GPS just tells location. So even if the search was unconstitutional, ‘I was entitled to rely on what I thought the law was, rather than what the law actually was.’ ‘Besides, other courts allowed cops to do it (the equivalent of, “you let my brother stay up late.. why can’t I?”).’
Besides, the government argued, this wasn’t really a “search” of the car – it was more like a “stop and frisk.” As long as I was suspicious of the behavior, ‘I could put the GPS tracker on – I don’t need no stinkin’ probable cause.’ The cops had a “special need” to do the search – they needed to track the Katzin brothers in order to establish probable cause, right?
But wait, there’s more. You see, the Katzin brothers, by driving in public had no reasonable expectation of privacy in where they were going. Since the GPS device simply tracked where they were, the government argued, they needed no warrant for that. Oh, and the law that allows cops in New York to pat down people almost at random without a warrant or probable cause (so-called Terry stops) also allows the cops to track people’s driving cause – well, they want to.
And that law that allows cops to search your car after they have pulled you over and smelled weed? Well the government argued that what is called the “automobile exception” to the warrant requirement (that allows searches of vehicles WITH probable cause but without a warrant because, well they can move while you try to get a warrant) allowed them to put the GPS device on a car that they had been tracking for weeks. This was no traffic stop.
The cops also argued that only the OWNER of the van can argue that his property rights were infringed when the government put the GPS device on his car, so they could track the passengers’ without a warrant (since they had no property interest in the car), and that they relied in good faith on the fact that the court had allowed the installation of beepers, so even if the search was unlawful, the evidence should not be suppressed.
The court rejected all of these arguments.
The Jones case pretty much settled the fact that installing a GPS on a car without probable cause AND a warrant was a violation of the Fourth Amendment. But it won’t make a bit of difference.
You see, even though the court threw out the evidence that came from tracking the Katzin brothers car, the government here, like the government in the Jones case, will ultimately win. All they have to do, like they did in Jones, is to subpoena from the phone company the GPS or triangulation location records of one or all of the Katzin brothers (or, maybe get it from the NSA?). Now, they can argue, ‘even if we didn’t put the illegal GPS device on the car, we COULD have found out where these guys were.’ ‘Since we COULD have found it out, then we would have inevitably discovered their location. And since we inevitably would have found their location, no harm no foul, and therefore we can use the illegally obtained GPS tracking data.’ See how that works? Elegant!
So it’s a case of heads we win, tails you lose.
That’s why we need a privacy regime that discusses the inherent privacy of things like location data, not simply based on how you obtained it. In the current criminal prosecution of the murderers of Washington Redskins (pardon the name) safety Sean Taylor in Miami, the cops solved the crime partly by obtaining the cell phone location records of people in Taylor’s house the night of the murder. In fact, location data is the holy grail of litigation. We need a privacy regime that discusses who can get this data, when, and how.
In 279-280 BCE, the King of Epirus defeated the Romans at Heraclea Asculum. In that victory, the King suffered massive losses, so that the King remarked, “If we are victorious in one more battle with the Romans, we shall be utterly ruined.” That King, Pyrrhus is responsible for the phrase Pyrrhic victory – one achieved at great cost. So even though the Katzin brothers have won the battle, ultimately the war is lost. At great cost to privacy.