GPS Tracking: The Supreme Court Takes a Step for Privacy

Wednesday, January 25, 2012

The United States Supreme Court on Monday unanimously decided that law enforcement needs a warrant to place a GPS tracking device on a vehicle. We applaud the Supreme Court for ruling correctly that warrantless installation of a GPS device violates the Fourth Amendment.

The Washington Supreme Court first considered this issue back in 2003, prior to any other state or federal court. The ACLU-WA submitted a brief arguing against warrantless GPS surveillance, and our court agreed that warrantless tracking violated the Washington Constitution. While prosecutors claimed using a GPS is no different than the time-honored practice of a police cruiser tailing a vehicle, the court found that 24-hour, uninterrupted surveillance by GPS is fundamentally different.

“The intrusion into private affairs made possible with a GPS device is extensive as the information obtained can disclose a great deal about an individual’s life,” said Justice Barbara Madsen in the court’s ruling.  The court pointed out that GPS devices can provide detailed information about personal details of an individual’s life, including travel to doctors’ offices and banks, attendance at houses of worship and political meetings, and visits to restaurants and bars.

Since that time, several other courts have considered the issue. Some were persuaded by the Washington case, but others decided that warrantless tracking was OK under the Fourth Amendment. Yesterday’s decision by the United States Supreme Court means that GPS tracking now requires a warrant anywhere in the country.

Unfortunately, the Court based its decision entirely upon the physical act of placing the device on the car, rather than on the detailed surveillance that resulted. This approach is different from all of the previous courts that had considered the question. The good news is that five of the nine justices signed concurring opinions that expressed concern about the surveillance itself, and strongly hinted that similar surveillance that could be accomplished without physical intrusion would also be unconstitutional. And they invited Congress to enact privacy-protective legislation.

Hopefully this will spur on Congress to move the GPS Act. This legislation, which has bipartisan support in both the House and Senate, would require full warrant protection for all types of location tracking. (If you want to show your support for the GPS Act, please take action now!)

The New York Times had previously called this case “the most important Fourth Amendment case in a decade,” since it was anticipated that the Court’s decision would affect not just GPS tracking, but a variety of other surveillance techniques, including tracking people’s locations through their cell phones. The actual decision is much narrower, so the case ends up being merely one stepping stone along the path to reconstructing privacy rights in the 21st century.