Monday, November 30, 2009

GPS Evidence-Two Sources are better than one

As I've stated in a previous post here, GPS track evidence admissibility may hinge on whether it is relevant to the issue in the case, and the GPS evidence relevance will, in turn, hinge on the frequency the track information is recorded. A high frequency track (like one track-point per second) is like a very high resolution digital picture, razor sharp in every detail for the time frame it covers. A low frequency track (like once every thirty seconds), although each track point is accurate, is "fuzzy" and "indistinct" in between track points, like a lower resolution picture.

A high frequency track would be important to pinpoint actual speed as accurately as possible, to defend against speeding tickets or charges of excessive speed in an accident situation. Low frequency tracks, although of general interest, may not be legally relevant, and thus not admissible in court, in cases needing greater accuracy.

Like photographs, there is a trade-off for both high frequency tracks and high resolution photos- available data storage space. High frequency tracks burn through available memory and use it up quickly, just as high resolution photos quickly use up memory cards. Even if you use a GPS that transmits to a third party, high frequency tracks (like a one track point per second track) are much more expensive than a low frequency track (like 30 or 40 second track point spread.) So what do you do if you both the protection of a high frequency track and the economy of a low frequency track? Simple. Get two GPS systems. Set one to record at a low frequency track rate, to generally track travel, etc. and set the other GPS system to the highest track recording frequency the unit allows, such as once a second or better. While the high frequency GPS unit would over-write data very frequently, such data wouldn't be needed unless there is an accident or speeding stop. In both situations, power would likely cut off the GPS tracking and preserve the evidence, or the operator could shut the unit down manually until it could be properly preserved.

Imagine an over-the-road trucker with ticket problems. Although he drives within the limits, police radar does make mistakes, sometimes tracking trees or other vehicles. This driver could loose his livelihood if such an error happens to him. GPS forms a potent defense to radar speed traps. His employer uses a GPS tracking service to track the trailer and truck, and generally check his driving, but it only records his location once every 30 seconds. Therefore, he carries a portable GPS set to one second tracking.

An officer pulls him over in a rural setting. He's sure he wasn't speeding, but takes the ticket. He shuts off the GPS and contacts his attorney. His attorney locates a local private investigator who can download and preserve the GPS track from high frequency GPS. The low frequency GPS info is already preserved at the headquarters of the remote tracking company; They need only verify and send it to the attorney, and testify by phone if necessary. The attorney takes the case to court and wins. Its not just the trucker's word, its his word and two GPS's.

Remote tracking companies can also develop (if they haven't already) secondary high frequency tracking units that don't send any data until 1) either they are triggered by the operator or 2) set off by the g-forces of an accident. Such a unit, like a blackbox flight recorder, would continuously over-write previous data for 20-30 minutes, preserving the GPS information in high detail for the small time frame it was necessary.

Some say a man with two watches never knows what time it is, because the two never agree. Is this a risk with two GPS's? No, because like two camera taking the same picture, one high resolution and one low, they don't record exactly the same thing, but close enough to fairly and accurately represent the scene. I doubt a low resolution track would ever cause the more accurate high resolution track to be excluded from evidence.

Tuesday, September 29, 2009

GPS Evidence Legislation/Regulation - Part II

In January 2009, I wrote a post calling for Uniform GPS evidence regulation/legislation. You can find that post here, including my wish list for such regulation.

Since that time, three more cases have gone through state courts, and its my recollection that all three courts called for legislation. Wisconsin's court of appeals allowed warrantless GPS tracking evidence admission, but called for legislation and regulation of the practice. New York required a warrant under the New York State constitution (not under the Federal constitution) in part because of the lack of state regulation of GPS tracking evidence. Massachusetts approved GPS evidence obtained with a warrant, but strictly regulated (by judicial mandate) even warranted GPS evidence collection, again, in the absence of state regulation on the subject, and under the Massachusetts constitution. So, state courts are asking their own legislatures for GPS legislation and regulation.

In addition to my previous post, I will run through the reasons why GPS evidence regulation not only benefits all of society, but specific groups that have an interest in GPS evidence regulation:

Why these groups should support GPS regulation:
1. Law enforcement & prosecutors: I believe most of those who are in law enforcement want to go by the rules, because going by the rules get convictions that are not overtured, and going by the rules gives the best chance that guilty parties are going to jail rather than innocent people. Right now, there are no rules (except the previous caselaw, which, while clear, doesn't provide much guidance) so law enforcement may be tempted to "push the envelope." How many cases could be overturned, and guilty parties released, if the courts suddenly find current police practices too intrusive? However, if state legislatures make systematic, clear rules, law enforcement can use GPS evidence with confidence, without the concern that the state courts will later throw out dozens, or hundreds, of cases where GPS evidence led to a conviction or led to other evidence that led to a conviction.

Prosecutors are being overwhelmed with numbers. GPS evidence, because it is high quality evidence, (See my blog posting on the "Economics of GPS evidence") induces guilty pleas in the guilty very early in the process. This, in turn, cuts down on handling the "iffy" cases at an early stage so prosecutors can concentrate on the important cases, trying more cases and giving better public enforcement.

2. Public and Private Criminal Defense Bar- Public Defenders serve an ever growing number of the citizen accused. Some are guilty of a crime, some are truly innocent, and some have committed a crime, but law enforcement can't prove it. Unfortunately for public defenders, not all the guilty admit their guilt. The truly guilty look a lot like the truly innocent, and their aren't enough resources to take every case to trial. Even if there were, there aren't enough hours in the day for everyone to get an appropriate defense. Accordingly, both the prosecution and the defense engaging plea bargaining. With plea bargaining, innocent defendants might agree to a conviction because of the threat of even worse punishment if the state can somehow make the case. Innocent defendants may not have confidence in their overworked public defenders to win the case even if they are innocent.

GPS evidence will cut down the number of "iffy" cases by showing the guilty high quality, convincing evidence of their guilt. Public defenders then will have more time to devote to those who, on the surface, appear truly innocent, or at least have little evidence against them. Of course, public defenders will never have to see those GPS evidence exonerates, as law enforcement will look at the GPS evidence and conclude there is no use bringing charges against them.

Finally, if public defense investigators can track those who are actually guilty of the crimes that the public defender clients are accused of, they can swiftly bring the guilty to justice while exonerating the innocent.

3. Victims - GPS evidence will jail the true perpetrators of crime, rather than the most convenient person that doesn't have an alibi. Victims do not prosper by the incarceration of the innocent.

4. Courts - Courts are crowded, justice is delayed because of cases with low quality evidence. GPS evidence, by settling cases quickly, determining guilt in a fashion that the guilty can clearly recognize, will cut down on trials and allow the court to sentence the guilty with confidence. Clear guilty verdicts also mean fewer appeals, as who would appeal a clear cut confession and guilty plea based on being caught with GPS evidence?

Of course, the unstated problem is that no one wants a society of police officers who spend their time constantly monitoring the same GPS units, hooked to the same cars, waiting for those they have predetermined are guilty to slip up. I would term such law enforcement practice locational myopia. GPS evidence is a tool, but without safeguards, it will become a crutch, and a weak crutch at that. The safeguards come the form of legislative limitations:

1. How GPS evidence can be distributed and used: The concerns of Washington's Supreme Court are real- GPS evidence can be one of the most powerful tools for blackmail known to man. However, if treated like medical records (equally potent), legislative action can criminalize the distribution of legitimately gathered GPS evidence for illegitimate purposes. The legislature can designate ways GPS evidence can be stored, handled, anonamously warehoused (with identification for possible later use, but only by trusted experts.)

2. How GPS evidence can be gathered (without consent or waiver)- It is clear that police, under the current law, can legally attach tracking devices to cars in public places, if those devices don't have to be connected to the vehicle's electrical system. However, problems will occur if the public start putting GPS devices on cars. Altercations will occur. While the author does favor some form of public ability to GPS track, it should be through a reasonable process - the GPS unit's serial number recorded, the vendor noted, and website (if any) disclosed, a fee charged, and public officer, private investigator or police agent charged with placing the unit, just as we have police or third parties serve documents. Placing a GPS should be licensed, as should retrieval of the data (unless done remotely through a website) to preserve integrity of the process. This would protect the person requesting GPS evidence from charges of "stalking." Then, if someone finds a GPS on their vehicle that is not authorized by law, legislation should provide criminal penalties for the person who placed it.

3. How GPS evidence can be admitted into court - Since GPS evidence is so powerful, the legislature should promulgate chain of evidence rules to make sure the evidence presented is really what it proports to be. GPS evidence that doesn't comply to strict standards should be excluded.

4. Who should be excluded from rules - Some types of GPS evidence should be excluded from the rules, such as tracking one's own property, employer tracking (with prior warning & waivers), parent tracking of minor children, tracking those who have been adjudicated incompetent (for their own safety), or anyone a court determines should be excluded from restrictions (by petition to the court under particular circumstances by ex parte order.) Fraud in such a petition should be criminally punishable, and GPS evidence obtained from a fraudulent petition excluded from admission before the court.

5. How long tracking should be allowed without returning to an authority - GPS tracking of a citizen for an indefinite time frame, while technically possible, is morally repugnant. There are circumstances, however, where the tracking party should be allowed long time periods of GPS tracking to continue to collect the most evidence. For instance, where a short period of tracking discloses a criminal conspiracy, short periods of time might be insufficient to disclose the entire extent of the conspiracy. In such circumstances, extended GPS tracking, including multiple tracking, would allow the fullest disclosure of arrangements that are designed to be secret.

I'd love to be able to provide the perfect blueprint for GPS legislation, but in a democracy, such a blueprint only will come from open hearings involving all the possible interested parties, including potential victims, the public, the investigators, the prosecution and the defense. I hope this opens a dialog and starts a discussion. Waiting for the courts is not an option, as many of the courts themselves recognize they are not the appropriate place for these issues to be regulated and decided.

Thursday, September 24, 2009

GPS Evidence-Avoiding Locational Myopia-Opponent

GPS Evidence may be one of the greatest criminal and civil evidentially breakthroughs of the twentieth century, able to convict the guilty and exonerate the innocent. Its potential is right up there with DNA, and its cost-benefits are much better than DNA.

However, although it is a powerful tool, it is still just a tool. That is why it needs regulation. It's too easy to turn every crime or civil problem into a locational issue - thereby missing real, perhaps contradictory, evidence.

I agree with Attorney John Ganz that public travels are "already public,"(see article at left) and therefore one needs no warrant to examine what, for lack of a better term, is in "plain view," not only of law enforcement, but of everyone. But unfettered and unregulated GPS tracking invites abuse in just the same fashion that unfettered wiretapping invited abuse a generation ago. Warrants are not the manner of applying that regulation. Legislation is.

Courts cannot, for all their attempts, institute comprehensive, well thought out regulatory schemes. Courts cannot take in all the possible factual situations that come before the court. They don't have the resources legislatures do. When courts attempt to regulate, they end up finding exceptions to their own rules, redefining their own rules, and even overruling their own rules. Courts can do this, because a rule created by the court is no more certain than the next case to come along, and the court has the power to overrule itself.

Court-created legislation creates uncertainty. Uncertainty, without a doubt, is bad for the progress of a civilized society. Courts function best when interpreting well thought out legislation, filling in the holes.

So why legislation? Why shouldn't GPS be unfettered? Too much reliance on GPS can lead
to what I call a version of the Peltzman effect, that "people to react to a safety regulation by increasing other risky behavior, offsetting some or all of the benefit of the regulation." (Wikipedia definition). When it comes to GPS evidence, I see the possibility of investigators and prosecutors so relying on GPS evidence that they might fail to gather potentially more persuasive evidence. Furthermore, myopic investigators might fail to fully investigate GPS evidence using physical facts, and thus be prey to being misled by false or misleading GPS evidence.

While this hasn't happened yet today, as even law enforcement is just learning to trust GPS, its not too soon to prevent over-reliance on a single tool. DNA is such a tool. Wisconsin set up a system to gather DNA samples from all those incarcerated some years ago, then relied on those samples to either accuse or excuse the "donor." Unfortunately, officials recently found about 12,000 samples were missing. Without checks and balances, even great tools like DNA and GPS evidence can lead to false security and myopia.

GPS Evidence-Waiving Possible Location-Based Evidentiary Rights

There is no question that in many jurisdictions, there are open questions as to whether individuals have a right to keep their location information private from tracking by GPS devices. While this is ironic, because no one can argue that public travel that is exposed to the naked eye is private, some courts have, based on state constitutions, found specific rights to be free from GPS tracking, at least by law enforcement. Furthermore, legislatures and the Federal Government may (and should, according to this author) put reasonable limitations on GPS tracking and the admissibility of the evidence it creates, thus creating limited rights not to be tracked.

Where rights exist, the ability to waive those rights exists. Everyone has heard of Miranda rights given to accused individuals by police officers, just before the accused is given an opportunity to waive those rights and talk with the officer. There is no reason any right to be free from locational GPS tracking cannot be waived, if rights as important as the Miranda rights can be waived. Just because a right hasn't been established doesn't mean that someone can't waive that right, should it be recognized. So, what should prudent prosecutors, attorneys, insurers, child support enforcers and employers do? Place GPS evidence collection and introduction waiver clauses in every contract, agreement, employment manual, court order, plea agreement, bond condition that crosses their desk. Just because today you can't think how to use GPS evidence doesn't mean tomorrow you won't. Waivers give the holder the right to collect and use GPS evidence where the rest of the world might not. Make sure to include the right to collect GPS evidence, as without it, you'll have nothing to introduce in court.

How might such waivers work? Take child support collection. Countless single parents have to raise children on their own income alone because payor parents find ways to work in "undocumented" jobs. Child support enforcement attorneys have the difficult task of "proving" the payor had employment with a virtual vacuum of information. How could GPS waivers help?

Employment has certain characteristics. First, it usually takes travel. Two, it takes time, usually upwards of 8 hours a day. Three, it is usually "periodic" and follows a set schedule.

Step 1: At the first possible hearing, the Child Support Enforcement Attorney requests (and probably will get) the GPS evidence collection and use waiver from the court. Of course, since it doesn't guarantee GPS monitoring, payor without visible employment might take efforts to avoid GPS tracking at first , but eventually will fall back into an ordinary routine.

Step 2: After a reasonable amount of time, Child Support Enforcement commences tracking. If it shows no pattern that would show employment, very few resources are lost (simply the time to review the track), and the investigator goes on to the next potential payor. However, if there is a pattern of employment (regular stops at factories, places of business, etc. with extended stays.) the investigator goes on to the next step.

Step 3: The investigator stakes out the potential employment site at the time the payor usually arrives and photographs entry and leaving times. If the GPS track shows regular periods, the investigator need only stay at the site long enough to get photos entering, then return to get photos leaving.

Step 4: The investigator finally consults with other law enforcement about suspicions of undocumented employment. Law enforcement can either confront the employer about the allegations, who will likely cut a deal and give evidence about the payor, or confront the payor with a deal (including back support) to give evidence on the employer.

The beauty of such a system is that, once the waiver is in place, the payor can't ever tell if he is being tracked. After a few cases of GPS child support enforcement hit the papers, payors will either start to sweat about whether there will be a knock on their door, or get valid, documented employment that the payee parent can get enforcement from.

Any periodic activity lends itself to this kind of tracking- workers compensation fraud (track them to the bowling league or baseball field), employee moonlighting, etc.

There is no downside to getting a GPS waiver in a contract as soon as possible.

Sunday, September 20, 2009

GPS Evidence-Revolutionizing Auto Risk Analysis?

Traditionally, auto insurance premiums have been determined by a number of general factors - driver age, drivers address, past drivers record, and a few more. Wikipedia lists the general process here. However, recently, several insurance companies have sharpened their risk analysis using GPS evidence. The new type of insurance, called Usage Based Insurance, is described by Wikipedia here. Insured persons or organizations typically pay based on the actual miles driven, combined with identified risk factors for that driver. Usage Based Insurance can potentially save the insured a great amount of premium over traditional risk rating systems.

Other systems use on board telekenitics reporting systems that report g-forces and other vehicle information without GPS location reporting. These factors report a lot about the vehicle driven, and perhaps the driver, but not much about the environment it is being driven in.

Combinations of these systems, together with some outside data on real physical risks of the environment, promise a pinpoint risk assessment system that can allow an insurer to charge no more than the actual risk the insured incurs. Rather than rating an entire town or region for risk, insurers could rate individual intersections and road segments, measure the insureds travel on those road segments and through those intersections, compare the insureds skill at driving (in near real time) and assess the premium.

The problem with usual rating systems- As I drive down the road, I am charged with the risk of the 2 a.m. bartime accidents, the "late to work" rush hour accidents, the noon time "hurry to lunch & back" accidents, the teen "after school rush" accidents, dusk "visibility problem" travel, even if I only drive at 10 a.m and 2 p.m. Even if I only travel residential streets, I could be charged with the risk of interstate highway travel, high volume intersection travel, sporting event travel, and the like. Even though might I travel through quite neighborhoods with little traffic, I could be charged with traveling through downtown, industrial area, or dangerous sections, if any of these are in my rating territory. Although I may only drive short distances relatively rarely, my insurer can only give me a small discount because some drivers might lie about their actual mileage, and the insurer take a risk if it has too small a bottom bracket. In short, a rating territory is (and has to be) quite large, and some drivers bear the costs of risks other drivers are taking. Usage Based Insurance balances and corrects those inequities.

The benefit the using both GPS and telemetry systems: The telemetry tells how the insured driver is driving; the GPS location + geocoded accident data (and the time of day) tell how the other drivers in the same area are driving.

If such systems were combined with real time feedback from the insurer, like a talking copilot to warn of dangerous intersections, or detected speed violations for the road in question, the insured could reduce his own premiums and the roads could be made safer for all. Never before could an insurer take positive actions in real time to reduce risk to the insured, both as public service and as a huge money saver.

Here's how it could work (and may work, as the author hasn't reviewed all the systems involved.) The following is just my opinion of what a GPS/telemetric system is capable of:-
  1. Insurers install, for a price break, GPS units on "study vehicles" in a given territory.
  2. Simultaneously, insurance rating organizations geocode (Wikipedia definition) the accident locations for that territory for a given time span, say, the last ten years. These geocodings include a cronological element, giving the time of day the accident occurred. A final code would indicate the severity of each accident, including whether the parties carried insurance for the loss.
  3. Using the geocoded information, insurers assign a relative risk rating to each street segment and intersection hour by hour. If necessary, data can be analyzed by seasons, as accidents will likely increase during winter or rainy seasons.
  4. When the system is generally deployed, insureds pay standard rates while driving with a GPS & telemetry data analyzers for a time period. This allows the insurer to "calibrate" the system and determine the accuracy of the GPS rating system. Ultimately, what rate to charge in specific situations will be a judgment call-however, that rate can be constantly adjusted by my current driving record, my personal driving risk (assessed by telemetry systems in the car), where I am driving, what time I'm driving, the kind, type, severity and time of accidents that have occurred on my route, and the length of time I'm exposed to those risks (by mileage and/or time.)
  5. Finally, the full system is in place, and the insurer starts charging its insureds by mileage driven or time the vehicle is traveling at a rate based on the factors above.
  6. Picture a drive under Usage Based insurance:
    • Sitting in my garage, my vehicle is still under some risk, say, of fire, so I'm charged a very low rate while garaged. Were my vehicle on the street, the risk might be higher, because of theft and weather threats.
    • I drive out onto the street. My onboard GPS tells the insurer where I am. Either in real-time (as it is happening) or later, depending on if there is a link to cellular phone system/ or the internet, the GPS would constantly update my position. The insurer's computers would correlate this position with accident histories on my street, assign a risk score, and charge a premium for my trip so far.
    • I come to a dangerous intersection- no traffic controls and I must cross four lanes of traffic. My GPS comes with "feedback", and warns me of the danger coming up, and suggests a safer route. (This "feedback" information need not come from the insurer in real time - insurers could send CDs, DVDs, or embed the information in the GPS memory for most "feedback" information where the insured is likely to drive. Insureds driving outside a covered area could get realtime "feedback".) As I drive down the road, my insurer can compare accident types, times of accidents, how much those accidents cost and assess how likely I am to have an accident on this trip (with my driving record, age, and driving habits.).
    • If I'm out in the country, its a beautiful day and a good song comes on the radio, my GPS will alert me that I'm going over the speed limit for this. Of course, it will take note of my slip and charge me a slightly higher premium, but the "feedback" stops me from continuing the risky behavior and having a much more expensive accident. The realtime "feedback" saves me money in the long run, as I'm much less likely to have an accident in the future.
  7. When a new accident actually happens somewhere to some GPS tracked driver (and it will) the GPS record and telemetry will help the insurer quickly determine fault, pay the claim if necessary, or litigate the claim if need be, with confidence. If both cars have GPS and telemetry, the additional information will make the investigation much easier. This is not to say GPS will solve all cases- a car crossing over the center line involves feet and inches, not yards & miles- but GPS & vehicle telemetry will narrow the issues like speed, location and timing, depending on how accurate the GPS is set to report and record. GPS's could record data to two areas-Standard and highly-accurate-rotating-buffer areas. The buffer would record, for instance, 20 seconds of very accurate data, continuously writing over that data, but "dumping" the buffer to permanent memory when high G-force conditions were detected. This would "freeze" the data from an accident situation.

If enough drivers have enough GPS "feedback" over time, they will change their habits, become better drivers, and thus, lower their premiums. Bad drivers, on the other hand, will be located quickly:
  1. Bob Baddriver, after an evening in a bar, gets in his vehicle and starts it up. The GPS notes its 2 a.m., bar time in most places, and a dangerous time of day even for the sober. While the GPS doesn't know Bob Baddriver was in a bar (it could, with enough correlation, but that would be both intrusive and prone to erroneous assumptions - maybe Baddriver is the designated sober driver) it can tell if there were accidents in this area around this time, and start charging an appropriate premium.
  2. Bob Baddriver, it turns out, has been drinking. He speeds. He ignores the feedback. His premiums are shooting higher as he goes. He crosses the center line. Realizing it, he locks up the brakes. He takes a deep breath, and drives home as carefully as possible. However, his insurer has noticed. His premium bill comes the next month. He will either pay for his risky behavior or have his policy canceled.
  3. Leaving the same bar Sammy Goodfella is a designated driver, using Usage Based Insurance. While he pays a little more for driving this time of night, the telemetry notes his anticipation of road hazards and safe driving, and his use of low risk routes. He pays a little more for being the designated driver.
  4. Bill Boring, home in bed, doesn't pay anything to cover the elevated risk of these two drivers.
This kind of analysis can go on for any motor vehicle, train, plane, car, bus, or commercial carrier.

As more drivers go to Usage Based Insurance, the remaining pool of traditional insured drivers will likely be the more risky drivers who want to hide their behavior. Premiums are likely to climb among them, driving more to Usage Based Insurance. Eventually, while standard insurance might be available, it is likely to cost so much that even the risky insureds will go with Usage Based Insurance, and the risk the insurer knows is probably less than the risk of the unknown.

Monday, September 14, 2009

Voluntary GPS tracking for the impulsive?

In our society, there are some individuals who have trouble controlling their impulses to do wrong and violate the law, unless they believe someone is watching them. Surely we've all seen traffic slow down when a police car is present, and the presence of video cameras in department stores surely cut down on shoplifting. I'm not talking about those people who will take whatever they can whenever they can. I'm talking about those who genuinely want to control whatever behavior violates the law, but in weak moments give in to the urge to do the wrongful act, and regret it later, even if they are not caught.

Such individuals, when they are of clear mind, might desire to be GPS tracked to help them curb their behaviors. Knowing someone is (or could be) watching their locational behavior will reinforce their conscience, keep them on the straight and narrow, and help them resist the passing impulse to commit crimes that are really not in their nature.

GPS technology could be set to give them feedback when they are entering a situation that might tempt them. Geofences, that is, electronic fences, could be set up to let them know they are close to an area they should stay out of, or leaving an area they should stay in.

Making GPS technology available to those requesting it for specific urges or problems would be cost effective both for the individuals and for society. The individual would lose their freedom if caught committing a crime. Society in general loses the cost of prosecuting, incarcerating and physically monitoring the individual if a crime occurs. Finally, victims of the crime stand to lose much more in property loss, bodily integrity, emotional agony, or even their lives. Victims costs are impossible to put in dollar terms.

Much like those we allow to civilly commit themselves to mental hospitals, those requesting GPS tracking could "sign themselves in" and out, presumably, or remain under surveillance. Much like the ankle-bracelet surveillance used for convicted or accused criminals, individuals voluntarily GPS tracked would have to allow the unit to be attached in such a way that only authorized personnel could remove it. Otherwise, at the first impulse the person tracked would take the GPS tracker off and commit the act. Removal would require a process, although voluntary, that would take long enough to allow the person to get through a period of bad urges without violating.

Here are some possible applications:
  1. Alcoholics could be tracked to help them keep away from drinking establishments, liquor store sales, and the like. Geofences could be programed around places that serve and sell alcohol so the person tracked would be alerted he or she was about to enter a dangerous area that might test their will power. The person tracked might even allow release of their tracks, in real time, to their AA sponsor, so an alerted sponsor might intervene in the behavior.
  2. Those who opt for criminal diversion programs may chose to allow themselves to be tracked. For instance, first offense DWI defendants might sign up to prevent that second DWI. (Insurers might insist on this as a condition of continued insurance.) This group might also use the "Geofencing" described above, along with the feedback provisions.
  3. Those under Occupational Licenses might sign up, so they know they can't deviate from the terms of their license. Loss of an occupational license could mean the loss of a job, and livelihood, so keeping on track can be very important for these individuals.
  4. Ex-convicts who are no longer under supervision might choose tracking to keep them away from other known criminals and ex-convicts-to help keep them from falling back into old habits, and keep them out of jail. "Geofencing" from known areas, addresses of other ex-convicts, and high crime areas could help them keep on the right track.
  5. Those accused of crime may want to be tracked to prove they couldn't have committed further crimes they might be accused of (such as serial crimes, like assaults or killings.)
  6. Those who have not yet committed crimes against children, but fear they might, could be Geofenced from areas where children congregate, like schools and parks.
  7. Traffic offenders - some folks can't help having a heavy foot, especially when no one is looking. Knowing GPS tracking is always looking will help them control and change their habits. Tickets not only threaten their continued ability to drive, it raises their insurance premiums, and makes them more likely to hurt or kill themselves or others. Here geofencing might be "keyed" to speed limits and perhaps, G-forces in the vehicle could be recorded.
Geofencing might be keyed to both location and/or time. In other words, it might be OK to drive by a bar, but if the GPS detects continued presence at the bar for 5 minutes or more, it will trigger a feedback alarm.

If the system is properly automated, the Geofencing can alarm whoever is tasked with "watching" those who are voluntarily tracked. The tracks, however, would be retained and archived (which would be explained to the voluntarily tracked) so if any laws were violated by the individual, the track would permanently provide evidence of the voluntarily tracked persons whereabouts at the times in question.

Even with a well administered system, some of the voluntarily tracked will give in to impulses. GPS tracking, then, will provide swift prosecution, solid evidence, and hopefully incarcerate those who only commit one crime rather than a string of crimes. Such a system would give justice to the victims, and lessen their numbers.

Friday, September 4, 2009

Should the Existence of "Spoofing" or "Jamming" GPS signals render GPS generated evidence inadmissable?

I've reviewed a couple of articles on the Internet that argue that GPS evidence should not be admissible in court. Some criticize GPS tracking as not accurate enough, which is surprising, as New York's highest court excluded warrantless GPS tracking evidence because of its far too accurate abilities. This post, however, will analyze whether "Spoofing" or "Jamming" technologies, by their very existence, so taint any possible GPS evidence generation as to render GPS evidence generally unaccepted and unreliable, and thus excluded under the Frye standard. (Wikipedia explanation).

Professor Susan Brenner did an excellent description of "Spoofing" and "Jamming" in her CYB3CRIM3 Blog. I see no reason to reinvent the wheel, so thanks to her, I will forgo an explanation.

In our society, many things can be forged, manipulated, altered or used without proper authority. U.S. Currency can be counterfeited, yet we all use it every day, usually without looking at it twice. Photos, now usually generated either digitally or from magnetic signal (on videotape) can be digitally retouched, making it difficult to know what the original looked like. Audio recordings can be sliced, spliced and diced to put words in someone's mouth. Documents can be scanned and signatures transferred that rival the original, thus rendering the documents complete and utter forgeries. Video tapes, likewise, can be doctored to make the impossible seem possible.

Yet, despite the existence of technologies that make it harder and harder to know what is "real," our court system every day accepts into evidence as real both currency, photographs, audio statements and recordings, signed documents and videotapes. While parties have the right to challenge the authenticity of evidence, no court I know of has ever barred evidence just because a technology exists that someone might use to tinker with or outright falsify the evidence. Likewise, I don't believe any court should exclude GPS evidence simply because someone somewhere has the capability of tampering with that evidence.

To be clear, there are four methods of "tampering" with GPS evidence I know of 1) "Jamming" GPS signals (thus blinding the GPS to location completely 2) "Spoofing" GPS- externally sending signals to the GPS reciever to make it think it is in a different location than it actually is 3) Uploading a false GPS track into a totally accurate GPS (which I describe in a blog post here.) 4) Tampering with the GPS evidence after it has been downloaded (which would be evident if the parties follow appropriate downloading procedures, and built a chain of custody of the raw GPS data.)

"Jamming" is very easily dealt with- It can't bar admission of GPS generated evidence, as, by definition, "Jamming" blinds the receiver. Now, unless the "Jammer" is mobile, and following the GPS tracked vehicle, it is likely only to block a portion of the GPS track. GPS tracks, however, are severable-that is, each trackpoint is constructed independent of the previous trackpoint, so each trackpoint constitutes admissable evidence without depending on the other trackpoints before it or trackpoints following it.
Therefore, if a court is presented with a "partial" track, individual track points, if relevant, are admissible to prove whatever the proponent is attempting to prove. Accordingly, "jamming" only creates an information vacuum for the period of time it is going on, and does not effect the veracity of the rest of the trackpoints, and therefore, the rest of the track.

Jamming is analogous to blinding a camera with a bright light to something the camera should be able to see, but can't through the light. We don't discard the rest of the photo because one portion is washed out. Nor does the washed out part lack information-we just can't see it. But the washed out part does not "contaminate" the rest of the photo.

Uploading a false track is like loading an official camera with film taken from a different camera, that appears to be real. Careful examination of GPS tracks will disclose problems, and careful "chains of evidence" will ensure the veracity of GPS track evidence.

Tampering with downloaded GPS evidence is like retouching a photograph after it has left the camera. This, too, can be prevented by preserving the raw data in a non-changeable form, like burning to a CD, and carefully protecting the chain of evidence that data goes through.

Attorneys should, and will, examine those who handle and process GPS evidence to make sure these evidenciary foundations have been fulfulled before GPS tracks are admitted. Doing so ensures the accuracy and credibility of the GPS evidence presented.

Finally, "spoofing" is the most troublesome technology. "Spoofing" a GPS is like setting a false scene for an official camera to shoot, but the scene appears real. The camera works, parts of the scene appear real, but something is false as part of the scene. Accordingly, where the jammer simply leaves a vaccum of information, the spoofer gives false information.

Fortunately, spoofing a GPS that would be admitted to court would be incredibly complicated. First of all, either the subject of the GPS tracking would have to know that he was being tracked to be involved in a "spoofing" in the first place, if he intended to use the spoofed track on his own behalf. The only GPS targets that know they are being tracked are criminals (or accused criminals) wearing GPS bracelets. While there is a possible scenario that the criminal spoofs the bracelet into thinking he is stationary when he is out committing a crime, the criminal would have to have good expertise, and good luck.

"Spoofing" has one other telltale characteristic- because the GPS satellites broadcast to ALL GPS recievers, and "spoofing" gear would have to overcome those signals to "spoof" a position, thus transmitting the "spoofed" signal to all the GPS recievers in the area, not just the target GPS. Where such tracks can be located and compared, and the GPS users interviewed, spoofing will either be proven, or disproven.

"Spoofing" an immobile GPS to make it look mobile could be easy, but in real life, "created" movements may become shockingly apparent when, for instance, a GPS tracked accused criminal crosses a river where there is no bridge, the GPS did not move with the actual current, and where the GPS isn't waterproof. Likewise, if the GPS travels over high fences, through secured areas or over cliffs, it will be suspect. Finally, a GPS attached to vehicle that routinely follows paved roads will be suspect when it starts to travel through cornfields and through swamps. While "spoofing" is possible in theory, "spoofers" may find that, like currency counterfeiters, the details are what trip them up.

"Spoofing" a mobile GPS would be quite difficult, given that the distances between the transmitting "spoofer" vehicle and the GPS tracked vehicle would vary, so would the strength of the signal, and real signals could leak through. Also, the "spoofing" vehicle would have to know where it was at all times to correctly transmit spoofing data that "makes sense" in the real world. How can it do that with a spoofed GPS reciever?

Because the slim likelyhood of successfully "spoofing" a GPS receiver without having it detected in the track, I would conclude spoofing, as a technology, is not a reason to either doubt GPS tracks or exclude them from evidence.

Finally, because both "Jamming" and "Spoofing" depend on transmitting data over the airways, anyone who attempts to either "spoof" or "jam" risks location and prosecution themselves. Because the equipment is specific, because many agencies can sample the airwaves, and because GPS signals have a national security dimension, it is unlikely in the extreme many would expose themselves by trying to jam or spoof GPS signals.

Monday, August 24, 2009

Turning the Tables on Abusive GPS tracking

Recently the issue came up-how should a person react if they believe they are being GPS tracked and the police won't help them?

Because of different laws in different states I can not give any advice on this. I am only licensed in Wisconsin. Please refer to all disclaimers below. The below is only a method to perhaps catch a GPS tracker. Consult an attorney before taking any actions in your jurisdiction.

Someone who is misusing GPS information to create fear or discomfort in a person is at one disadvantage - they must disclose that they know information to the victim, either by "showing up" at the the location the victim is at OR disclosing by voice or email to the victim.

I will use the term GPS misuser (I avoid the word "stalker" as 1) it has a specific legal meaning in most states, and 2) many legitimate searches for information are incorrectly characterized as "stalking." ) GPS misusers walk a fine line: They want the victim to assume the GPS misuser has super powers of observation and ability to control the victim's actions; at the same time, they want to characterize GPS tracked meetings as "merely coincidental" and "occurring by chance." Therefore, the key to disclosing GPS tracking abuse (without the actual GPS itself) would be to document the lack of coincidence, and the improbability of repeated "chance" meetings, and/or the repeated possession of knowledge of very recent otherwise unattainable public movements in close time proximity to those movements. While documenting repeated circumstances of the above does not confirm abusive GPS tracking, it is sufficient to raise the question-How can the alleged GPS abuser explain his or her repeated timely appearances and/or possession and communication of knowledge of very recent movements? If the question is being asked by law enforcement, it is a serious question indeed.

So, if I believed someone was following me based on GPS evidence I would proceed as follows:
First, I would search my car for the GPS tracking device. There was a case in Wisconsin where the person had a mechanic search her car, came up with the device, and then police got involved and contacted the company which made the device. Then the company released all its records and the individual who paid for the GPS. The GPS tracks provided evidence against the alleged stalker. This case is cited in my Wisconsin Lawyer article (see links to the left.)

If I couldn't find the actual GPS unit (and maybe even if I could), I would:
1. Start tracking myself with GPS evidence, through a third party (that is, over the internet) that can produce an admissible record of my locations.
2. Carefully documenting the following by having a friend videotaping it, I would - ask a second friend to chose a random location for me to drive to out the yellow pages. With the friend, drive to the random location (again, videotaping the drive and documenting the time.)
3. Enter the location (presumably some kind of public business) with the friend videotaping the situation, hopefully in such a manner that is inconspicuous.
4. Tape any evidence that the suspected GPS tracker is at the "random" location.
5. Finally, again carefully videotaping the travel home, documenting times (perhaps using a GPS for time references, because of its accuracy, perhaps even occasionally showing the GPS on camera to establish time sequences) return to wherever I get my email. If there is an email from the alleged GPS tracker that referenced the "random" location, both document it on video (showing the time frame of the email) and print it.

I would repeat all these steps several times. I would probably use a private investigator to document the evidence.

Then I would go back to the police with
-the GPS tracking evidence (with a link to the third party's site, I wouldn't download it myself.)
-the videotaped evidence
-the prints of the emails.

What I would be trying to do is rule out "coincidental meeting." The randomness of the location, paired with repeatedly the suspected GPS tracker, would start to rule out coincidence beyond any belief. Any email references to the meeting would show a pattern of what could be "stalking" behavior.

If local police did nothing, I would go to the Sheriff's Dept. or the State Police with the same evidence.

Finally, if the police were co-operating, I would arrange for them to be a pre-arranged location, drive to that location, and have them observe the GPS tracker at that site (undercover, of course.)

You should also be aware there was a "flipped" plot on Law & Order-Criminal Intent (on NBC, if I recall correctly), where the supposed stalking victim would GPS track her former lover who was under a restraining order. The supposed victim would go to the location the former lover was (because she was tracking him) and complain to the police that he was stalking her. I believe her goal was revenge. I don't recall the resolution. I do recall the "supposed victim" got caught. Criminal Intent did get it right, wherever GPS creates a track, if you are using it for the improper or illegal purposes, that track can "turn the tables" and be used as evidence against you.

Wednesday, August 5, 2009

Implied Consent for GPS Tracking evidence?

The government already controls almost every aspect of every vehicle's manufacturing, design, fueling, operation (including all traffic laws), and regulates not only the sale of vehicles, but titling and licensing of both the vehicles themselves and those who would legally operate those vehicles. While we are free (with many limitations) to drive our vehicles where we please, the government also limits what condition licensed drivers can be in to legally drive.

To this end, most states have law prohibiting operation while intoxicated by drugs or alcohol. Police test the driver's sobriety with devices to detect alcohol. When first introduced, some drivers thought they'd foil the system with a "you can't make me" response of refusing the test until the alcohol cleared their system.

Legislatures responded with implied consent laws: If you drive a vehicle, you implicitly give your consent to testing- that is, if you don't consent, you loose your license on the spot.

Now that states like New York have found warrentless GPS tracking unconstitutional under their own state's constitution (the subject of an upcoming post) is the New York and other legislatures hamstrung? I don't believe so. GPS tracking evidence would be admissible in any state if the vehicle driver consents to the tracking in advance. How can he or she do this?

If the legislature requires "implied consent" to GPS tracking, and automatic waiver of objections to GPS created evidence while operating a motor vehicle as a condition of getting a license, there ceases to be any constitutional issue for any court to rule on.

Wednesday, June 3, 2009

Carpe GPS (loosely interpreted "Seize the GPS")

"D" poses another interesting question that makes a nice correlary to yesterday's post: "If I am stopped for speeding and am using a GPS, can the officer impound it as a source of possible evidence?"

Once again, as a hypothetical, and to my knowledge of general jurisdictions,(keeping in mind I only am licensed in Wisconsin, and the disclaimers below) the short answer is "yes." But this opens another can of worms. Are there circumstances an officer won't seize a GPS, and why not?

As a matter of fact, some officers lost evidence for failing to seize the GPS in a marine case of suspected drug trafficking. (I am searching for the citation of that case and will update this blog when I find it.) As I recall, the officers had boarded the boat and observed the GPS. One officer noted that either the "track" or the waypoints entered were south of the border with, as I recall, Mexico. However, the officers did not seize the GPS. When testimony about the GPS "observations" was solicited, the court excluded the evidence. As best I recall, the court did not believe that it was appropriate for the officers to comment on what was in the GPS, without the actual GPS unit being taken into possession. I agree with the court. The message for law enforcement: "Carpe GPS" (seize the GPS) if you want what's in it in evidence.

Will he or won't he (or she?)
But wait! You've been stopped by a police officer who has a radar reading that you were speeding. He comes to your car and sees a GPS. I'm guessing at the time of the stop, neither you nor he knows what that GPS will read-you may suspect you weren't speeding, but you don't know. He may believe his Radar is accurate, but he doesn't know.

You'll remember that police can lie about evidence to suspects. However, there is a counter rule that, if asked for, police must turn over all exculpatory evidence-that is, evidence that tends to show you were innocent. Now, the police officer has a decision to make. If he seizes the GPS, and it shows you weren't speeding, what's a judge or jury to believe, radar or GPS? He will likely have to tell you (if you or your lawyer ask in a legally allowed manner.) So, he may not seize your GPS. In addition, he'll know if you download your GPS and it shows you were speeding, in addition to his radar, you'll likely make a deal to pay the ticket.

Of course, this all presupposes the officer will play by the rules, and not erase an exculpatory track, or worse, erase such a track just by failing to turn off the unit or incorrectly downloading it. I do believe that seizing a GPS won't happen unless you are a jerk to the officer and somehow escalate the situation - or you've had so many tickets, the officer is willing to go the extra step to get you off the road.

With the exception of the single case I haven't gotten the citation for yet, this is all my opinion based on how a GPS might factor into a traffic stop. Don't rely on it-see disclaimers below!

Friday, May 29, 2009

GPS Evidence Q & A

Thanks to "D" for the following questions, which I will answer subject to the disclaimers on the bottom of this page, and as hypothetical situations:

Question 1:
Does the GPS receiver have to be 'sealed' or at least in official custody to prevent tampering (upload of bogus track) when used to track a suspect or gather evidence for conviction?

A: Laws vary from jurisdiction to jurisdiction, and new laws are being enacted every day. Accordingly, that would depend on both the rules of evidence in the particular jurisdiction, and on the judge the GPS track evidence was presented to for admission. If there are no statutory requirements, generally all evidence must be accounted for in a "chain of evidence." In short, this would require those who attached the GPS and collected to swear to the manner of secure clearing of the GPS unit, the manner of GPS evidence retrieval (that is, was the entire GPS recovered, or was it downloaded by phone or by close proximity secure download.) Furthermore, the officers would have to testify regarding how the GPS track sought to be entered into evidence was securely stored, then about how it was processed for display to the court or jury. I've said this before- because a GPS track is just a data file, the information it contains is only as valuable as the veracity of those swearing to it. While GPS evidence is a particular type of evidence, it is, short of a jurisdictional control, just evidence. The proffered GPS track does have to be relevant to the situation in court, and not just a "Gee, Judge, we want to wow the jury with our CSI-like abilities, even though our GPS track has nothing to do with the case we are trying. . ." Law enforcement may choose to "seal" both the GPS and any downloads of GPS to make the job of introducing the GPS track into evidence easier, but it is not required. See my blog entry on relevancy here

Of course, in Washington, Oregon, and now New York, a warrant is required to even attach the GPS to the suspect or witnesses car. I will discuss the New York case (and Wisconsin's appeal court decision that did not require a warrant for GPS tracking in a blog shortly.

Question 2:
How can a receiver be used as defense (e.g. speeding) if it wasn't taken as evidence
(I could upload more bogus track info)?

A: Again, I take this as a hypothetical. See question 1, above, that all GPS data is only as credible as the person attempting to admit it. Given that a suspect of speeding suddenly has a GPS track of himself not speeding, which he did not disclose to the officer at the scene would be highly suspect. Why did this hypothetical suspect not disclose the supposedly exonerating GPS track to the arresting (or ticketing) officer? Simple-the suspect thought it might prove he was speeding! He wanted to check it out first. If he confirms he was, then he'll likely pay the ticket.

Likely, because the suspect doesn't know how to 1) preserve the track and 2) show the track in a manner the court might find acceptable, it is unlikely a court would admit such a track after the fact. The one exception I could see-where the track is both gathered and kept by a third party, that is, a remote tracking service that has no stake in the case, no reason to lie, and a business interest in keeping accurate records. Such records would be both tamper-proof (or at least resistant) and credible. The remaining qualification-would the GPS track of a speeding suspect be relevant? See my above link on relevancy, which is highly applicable to speeding situations. In short, because GPS tracks average speeds between track log points, only an extremely "dense" track (with a lot of track points, recorded very frequently, on the order of one track point a second or every two seconds) would have the accuracy to overcome a police radar reading that, at a particular point the radar gun was pointed at the suspect, he or she was speeding.

So, hypothetically, could a suspect after the fact tamper with a track, or create a track and load it into a GPS for police consumption? I've suggested in blog posts police could "dummy-up" a track to present to a suspect. Why shouldn't a suspect do this?

Two huge reasons:
1) Police are allowed to lie, suspects are not. Police are allowed to fabricate evidence to challenge a suspect's declarations of innocence to test his story. An innocent suspect, goes the theory, will stick to his story no matter how much false evidence is before him. A guilty suspect will confess because he thinks he's been caught.

Suspects, however, are not allowed to lie to the police, or present false evidence. Its a crime in most jurisdictions, called "Obstruction of Justice" or something of the like. Uploading a "bogus" GPS track and presenting it as real or tampering with a real track is either perjury or obstruction of justice, or both. Both are very serious, not like a speeding ticket.

2) A suspect in an interrogation room won't have time or expertise to analyze police evidence put before him or her, but police will have all the time in the world to analyze GPS evidence offered by a defendant to a speeding charge. Any offered track would be, at the least, part of the police file, at most, part of the court's evidence, and would stay in the file for analysis (today, or by future, more sophisticated methods) for years.

Police Experts (and private experts) can detect "bogus" tracks, given enough time. I won't get into all the ways, but one way is the laws of physics and common sense. For instance, if a track shows someone proceeding at 60 mph but slowing so suddenly that skid marks would have to be produced to do so, (and there are no skid marks) it would be evident that a track had been tampered with. Track points are time stamped, and tiny differences make huge differences in speed. Since one track point is dependent on the previous track point position, and so on, a tampering suspect might try to show he wasn't speeding for on stretch of road, but show he was speeding two minutes earlier. This internal structure of GPS tracks helps enhance their credibility and decreases the chance tampering won't be found.

Obstruction of justice is likely a much more serious offense than speeding, and not only would a court be likely to "throw the book" at a speeder who tried to fake a GPS track on the speeding charge, he or she would also likely throw the book at the speeder for obstruction of justice.

Thanks, "D" for raising this hypothetical question.

Thursday, May 21, 2009

The Economics of GPS Evidence

Government and law enforcement budgets are being slashed. At the same time, local and government law enforcement agencies are not only expected to enforce pre-9/11 laws, they are the first line of defense against domestic and foreign terrorists. Add to this the kind of crime increases that are coupled with unemployment (property crimes, child abuse and domestic violence) and our law enforcement bodies have their hands full.

What does it take to adjudicate a crime, in terms of resources and dollars? The cost to adjudicate a criminal (or for that matter civil) case is directly proportional to the quality and credibility of the admissible evidence presented:

  1. Marginal evidence of crime probably takes the least judicial resources, because no prosecution ever takes place. However, where it is certain a crime has been committed (for instance, an unsolved murder) an uncertain case continues to take law enforcement resources, with attempts to solve the crime continuing throughout the years. Where police need to investigate if a crime was committed (for example, an unexplained disappearance with no body) law enforcement has to weigh the wisdom of investigating a possible crime with pursuing solutions to verified crimes.

  2. Evidence of either a certain crime and uncertain perpetrator, or certain perpetrator and uncertain evidence of crime take the most resources. These cases are the most likely to go to trial and most likely to involve large blocks of investigative time.

  3. With certain evidence and a certain perpetrator, the case will likely settle, although some perpetrators insist on a trial. Here, the measure of resources will be determined by how much evidence the prosecution must present to the finder of fact before satisfying the criminal burdens of proof. High quality evidence that is easy to present is the best kind of evidence.

No alleged crime investigation and prosecution stands alone-all investigations are only as good as the totality of enforcement and prosecutorial resources that can be bought to bear on a specific alleged crime in relation to all the other alleged crimes before those enforcers and prosecutors at a given time.

Evidence of crime will be judged by three audiences before a guilty verdict is rendered:

1) the suspect (Is there enough evidence, and is it believable) enough here I should take a deal and plead guilty?) 2)The officer-prosecutor (Is there sufficient credible evidence to convict beyond a reasonable doubt?) 3) The jury (Is the suspect guilty beyond a reasonable doubt?)

At one time, the eyewitness identification was the “gold standard” of high quality evidence. However, scientific testing of the general publics' observational abilities has shown eyewitness testimony is actually poor proof of criminal identification. Fingerprint evidence, still valid and high quality, is only useful where the accused is a stranger either to the environment or the particular evidence in question. DNA evidence, the new gold standard, is useful, but only under the same circumstances. DNA evidence, in addition, must go through expensive and extensive testing, often at overworked State crime labs.

How would widespread GPS evidence investigation save money, time and resources in criminal investigation and prosecution while resolving more cases and solving more crimes?

Real police work involves asking questions and interviewing people. Surveillance, however, involves waiting for hours (often with several officers) for a single event or occurrence, or high risk tailing, that is, following a suspect without the suspect detecting law enforcement presence. Both involve high numbers of officers and high hours. GPS tracking evidence, while not replacing surveillance, can focus surveillance in such a way that police can mount surveillance at known suspect destinations, and often at very specific times.

GPS evidence tracks are high quality, credible evidence, to all the audiences above.

  • GPS evidence needs very little “processing” and will be available during the investigative stage (as opposed to DNA, which may take months to process.)

  • GPS evidence is straightforward, easily displayed and explained, and extremely persuasive. While fingerprints and DNA can be explained to a jury, a jury can watch a GPS track map display from a suspect's home or last identified location right to a crime scene. A guilty suspect in an interrogation room will see this immediately, and start looking for the best plea bargain possible.

  • Indeed, some GPS evidence is available in “real time”, allowing police to either actually prevent a crime or catch a perpetrator in the criminal act, something DNA will never do.

  • GPS tracking is “cheap”-although individual GPS units might be somewhat pricey, each unit is probably less than a batch of DNA tests. GPS units are certainly cheaper than the payroll of the officers, prosecutors, court personnel and judges that less certain "marginal" evidence requires to get the same results.

  • GPS tracking evidence frees law enforcement from time consuming surveillance tasks, letting them concentrate on real police work. Remember, hours saved in one case are hours that can be devoted to other cases.

  • Finally, the quality, accuracy and persuasive force of GPS evidence resolves cases short of trial. Because it is simple and easily understood, even the most hardened criminal knows he won't have a chance with a jury when they see a track of him pulling up before the house where the rape occurred, the arson happened, or outside his ex-spouses house he was stalking. Suspects will plead guilty. Prosecutors and officers can concentrate on other crimes.

  • Previously unsolvable crimes will be solved by GPS evidence. GPS evidence is already solving crimes like remote forest fire arson, where surveillance is impossible (because it would be spotted.) Just because these cases were unsolvable doesn't mean law enforcement didn't try, using time, money & resources.

  • Given the incarceration of repeat offenders, and the possibility of detection by GPS tracking, the more GPS tracking is used, the more crime will decline. Declining enforcement and prosecutorial commitments allows more investigative scrutiny of the remaining crime, thus increasing a criminal's risk of detection, and lower crime rates. Increasing prosecutorial pressure will mean longer criminal sentences, greater enforcement pressure, and again, greater risk for the criminals-which translates to a lower crime rate.

  • Very few types of evidence can exonerate a suspect. GPS evidence can. For instance, if police have narrowed possible suspects to three people, and use GPS tracking on all three. Two have tracks that show they were no where near the crime scene; and one suspect does. No further resources need to be devoted to those exonerated suspects.

For all these efficiencies, I have to restate that GPS evidence does not solve crimes, it only narrows the relevant questions to a specific geographic area for a specific time frame, raising questions that the guilty can't answer, but the innocent can. However, because both the geographic time frame and time line are so specific, guilty suspects will know they have no chance, and plead guilty.

Legislatures must act quickly to regulate GPS tracking so that the court system will not exclude GPS evidence based on faulty- Fourth amendment analysis. Economically, its only rational to preserve this valuable investigative tool that convicts the guilty and exonerates the innocent-for pennies compared to previous investigative methods.

Friday, February 27, 2009

Its All in the Timing. . .

The GPS system, consisting of the constellation of satellites and the receivers that use them, are most often lauded for their ability to accurately locate and record location. However, just as important is the GPS's ability to both accurately receive, display and record the timing of those geographic events. GPS time is so accurate, scientists in indoor labs often mount rooftop antennas to capture the GPS time signals (with GPS receivers) and use them for their experiments-even though the GPS receiver never moves an inch!

Why are GPS time signals so accurate? Because each satellite has an atomic clock, and a central atomic clock continuously co-ordinates the constellation of satellites so these clocks are within a few nanoseconds of each other. A GPS receiver that is on but not "locked" to the satellites (indoors or with very bad signals) is about as accurate as a new quartz digital watch, but a GPS that is locked to the satellites is as accurate as an atomic clock, because its time is being updated every few seconds. Now, although a new digital quartz watch may loose a few seconds or even a minute a month, how much time would it loose in a day? An hour? A minute? Since the GPS is constantly updated by the satellite atomic clock, it is, for all human measurable perceptions, as accurate as the satellite atomic clock.

We can accept that GPS timing is dead accurate. Not just close. Dead accurate. Why? Because of the way GPS works, even nanoseconds of error, which might show up as a large locational error, are tiny compared to our perception of time and events. If a GPS receiver has any lock on any satellite (required to record any position at all) the time it reports is as accurate as any human need can generate. If a GPS cannot get sufficient signal for a lock, it won't record a position.

What are the implications of a totally accurate time-keeping system that 1) can automatically record events and 2) can be accessed by any GPS receiver?
  1. Proactively, it means that diverse members of a unit can act in unison at a given moment, without the necessity to "synchronize their watches." Search warrants can be executed at 20 different locations at exactly 5:30 p.m. local time, thus denying members of a conspiracy a chance to warn other members.
  2. Retroactively, GPS track records can be plotted against each other based on time, and recorded events can be compared to see who was where, when (and what they were doing, according to their own narrative testimony or description.)
  3. GPS track records can be plotted against other time systems to determine actions. For instance, if a GPS track of 3:22 p.m. indicates that driver A (fatally injured) was going 60 m.p.h., and cell phone records indicate at 3:22 p.m. driver A received and read a text message, it can be inferred driver A was watching his phone, and not the road, before his fatal accident with a Semi-Tractor-Trailer, thus confirming the driver B's testimony.
    • Such systems can be compared after the fact to determine their accuracy . For instance, one could call the same type of phone while noting the GPS time, then check the phone records for the time the call was actually received. Most likely, however, the phone company is using GPS time to record its information, for the sake of accuracy. In the unlikely event of a difference, the offset difference can be noted and offset applied to relevant evidence. Accordingly, a one-minute difference would result checking what was going on in the track one-minute later.
  4. GPS track time lines can be used to narrow the investigation based on other time-based recording systems. For instance, using a GPS track timeline and location, investigators could find camera systems (banks, convince stores, surveillance cameras or web cams) that recorded the vehicle or person tracked based on the recorded time of the camera. This would avoid watching hours of tapes, etc. Again, current GPS time can be checked against current camera time to find any offset. While some of these camera systems might be dead accurate, others might have discrepancies that do not degrade the evidencing value-the time coding is only there to find specific frames, not to prove the time. Nor should such a discrepancy in timing reflect on the quality of the GPS track vs. the standalone camera, which may have its "clock" set by the guard's 10 year old watch.
  5. Prove a conspiracy- Accurate time lines can show not only locational co-ordination (that parties met) but that they acted in concert. For instance, phone records show two suspects spoke, GPS locational information might show they both drove away-but the time component might show they drove away simultaneously to do acts to help the conspiracy. GPS time lines further enhance law enforcements ability to demonstrate not only that suspects were just acting illegally, but acting in concert.
  6. For everyday circumstances, such as determining how long a driver worked, whether a person or delivery arrived before a deadline. Having a reliable independently verifiable source to determine "when it happened" may substantially reduce litigation around these areas. For instance, when children change placement, frequently one party claims the other is late to drop off, or that the party charged with picking the late. How to resolve these disputes? The traveling party can carry a GPS, and print the track results for all to see. If the parties use GPS time as their official time, rather than inaccurate car clocks and the like, they may find that both the parties are "on time", they just were using inaccurate clocks.

Wednesday, February 18, 2009

GPS Evidence Repository?

We are now entering the age where GPS tracking information, that is, GPS evidence, is collected on numerous people on a routine basis. We also live in an age where it is easy to keep 1) who (or what vehicle) the GPS track is related to 2) the raw data (which at the least consists of time, longitude and latitude, with some tracks adding altitude).

Whether such information is collected by an employer, a third party working for an employer, or as part of an investigation, clearly there will be evidentiary information related to such a "storehouse" of information. Now is time time to start programs to collect and preserve it.

Imagine an unsolved murder of a young suburban woman at her home. No clues exist to tell who killed her. However, someone using a GPS evidence repository (like a fingerprint or DNA repository) can chart the location of the murder, and look for all tracks that would have passed, for instance, within 200 feet of the murder site for a specific period of time, like three weeks before the murder. If this produces too many tracks, the search can be limited, either by distance or time period. While this does not mean additional tracks will not be followed up on, just filtered to get the most closely related tracks first.

Now imagine the detective in charge of the case has run this check, and found a UPS truck that stopped across the street, and a car stopped near the victim's residence that was tagged as going to a drug house (using the investigative technique I set forth in my Wisconsin Lawyer article). Correlations to know evidence are checked, and the detective discovers the vehicle is owned by an individual who showed up on caller ID at the victim's home, and who admitted a social relationship to the victim, but denied seeing the victim on the day of the murder. Further examination of the UPS truck & target car tracks shows that, although not in exact area of the murder at the same time, the target car passed the UPS truck at excessive speed shortly after the murder. The target car is photographed and the UPS driver remembers both the delivery and that the target car almost sideswiped him at high speed. This identification gives enough evidence to get a search warrant for the vehicle (which the police find easily with real-time tracking as the GPS is still attached.) A few pieces of physical evidence are found in the vehicle, but following the GPS track backward, the police find the target vehicle went to a pawnshop. At the pawnshop, the owner finds items from the victim's home, and picks the suspect from a lineup. The suspect is arrested, and confesses he attempted to enter the woman's home to steal items for drugs, but was surprised by her and killed her to avoid detection.

This little tale (totally fictional) demonstrates how a GPS evidence repository made up of both routine commercial records and law enforcement GPS evidence can be a valuable investigation tool. Today, we are building biometric and electronic repositories, including phone records, international travel records, immigration records, billing records and the like. Most can be retrieved and cross referenced to build cases and serve justice. Why not GPS tracking records?

In a related subject, given a known vehicle but an unidentified driver, is there a way of telling whether the vehicle was driven by a specific person? I think there is. Driving habits, as shown by GPS records. I call it GPS profiling. We all drive differently, and our routes at a given time, our acceleration, our stopping practices and our following practices all differ. Now, our driving may not be so different as to pick one driver from the general population, but driving probably varies enough (given a known baseline, that is, several different incidents of driving compared to one questioned incident) to be able to pick out one individual from say, for example, four or five people who actually had access to a vehicle and opportunity to drive it.

Of course, GPS profiling doesn't discriminate, that is, it looks at the movement of the vehicle as controlled by the driver, in order to tell who that driver is. There are several items necessary to draw any conclusions from a GPS evidence put into a profile:
  1. Exemplar GPS tracks, like the writing samples a handwriting expert needs to judge against a questioned writing. These exemplars would have to be from any person that was suspected of driving during the questioned track.
  2. A high resolution GPS track-Just as a handwriting expert can't make conclusions based on fuzzy copies or blurred signatures, or a photo analyst can't make a conclusion based on blurry photos, a GPS expert would have to have sufficient track points, showing time and location, to actually make a conclusion about driving patterns. As a rule, I would say anything that is beyond 5 or 6 seconds track points would be of doubtful use for GPS profiling, because profiling would require reading subtle differences in driving style. This does NOT mean track points beyond 5-6 seconds aren't accurate and valuable for other types of analysis or evidentiary use, just that they wouldn't be much use for telling who was driving the vehicle based on prior GPS track incidents.

Friday, January 30, 2009

A Call for Uniform GPS State Regulation

According to ( Georgia is considering regulating the use of GPS tracking devices. I applaud this action, and encourage all the states to regulate GPS tracking with a Uniform law, like the Uniform Commercial Code. GPS tracking evidence, by its very nature, will tend to travel across state lines through many states. The evidence generate by such a track should be uniformly admitted or excluded, wherever it is generated, and regardless of the place the unit was attached, downloaded or sought to be introduced. We have a blueprint for such regulation-wiretapping laws that exist throughout the United States.

We should keep in mind that 1) what happens in a vehicle on public roadways is "already public." (see Attorney Ganz's article ". . . It's Already Public" to your left.) Second, physically following a vehicle or person, even though difficult, is legal, but dangerous-both the the participants AND to the public who might get in the way.

Accordingly, there is a public interest in GPS tracking, because it keeps those who would physically follow recklessly from even appearing on the roads. Princess Diana died, in part, because of those who wanted to follow her. How many other accidents are cause by those who are following, and those who are trying to evade them? GPS tracking will never cause an accident.

Some argue that GPS tracking will disclose secrets that will cause those harmed to take revenge. I believe those keeping secrets will eventually be found out, either by physical tracking, GPS tracking, or a guilty knowing desire to be exposed. Any of these methods could lead to revenge. However, GPS tracking, in my view, lowers the possibility of a chance discovery that would lead to a crime of passion, or a car chase that would hurt innocent bystanders.

What would a uniform GPS regulation law include? Here's my "wish list":

-Penalty enhancers for stalking with a GPS.

-Criminalizing private third-party tracking for anyone other than a licensed private investigator, law enforcement officer (including corrections officials) or other individual if allowed under court order.
The only problem with this is it would require people to go through private investigators, and many can't afford private investigators. This would create two classes of people, those who can afford to check, and those who can't. One solution to this is to allow tracking by permit-you go to your local police station, they take down the information on your tracking device, and your information, and you get a permit for a certain amount of time. You can renew the permit with "good cause." Tracking without a permit would be a crime. Because the person tracking had already been to the police, he or she is unlikely to take the law into their own hands if the GPS reveals a problem. More likely, that person would use legal means to remedy the problem. Stalkers would definitely not track by permit, because 1) they don't want to have a record of their activities, and 2) they wouldn't want any time limitation on their tracking.

There should be a requirement of some kind of cause for the tracking, that is, some kind of legally recognizable action that could come from the claim. Therefore, a person could track a spouse he or she suspected of infidelity, because he or she could file for divorce based on the GPS track. However, people should not be able total strangers. Furthermore, they should not be able to track boyfriends or girlfriends, because they can't file any legally defined claim based on that status. (Yes, I know about palimony and common law marriage, but I believe a legally recognizable claim would have to be proven before tracking permits were issued, because otherwise someone could claim palimony desires after one date.)

-Allowing courts to order GPS tracking for bond enforcement, child support enforcement, child custody investigations, worker's compensation investigations, or other civil suit with a court order.

-Limiting law enforcement use to specific time periods,which could be extended with a court order with proper reason and cause, and requirements for logging equipment use and time, and requiring specific chains of evidence for admissibility.

-Enacting specific rules of evidence for the admission of GPS tracking, including documentation of attachment procedures, documentation of downloads, availability of the raw data to the opposition, and permanent writing of the GPS track record as soon as practicable.

This is the short list. I'll be adding to it over the next few days.

Wednesday, January 28, 2009

"Planted" GPS evidence-Opponent

Many people know you can download GPS track evidence from GPS units. However, many don't know that you can upload a GPS track, and that it would like like it was generated on that GPS, and would look as if it was downloaded from that GPS. GPS track files are simply data files. They should be treated as such, and require the same checks and balances, and should be correlated with the physical facts.

I'm not talking about a freestanding computer generated GPS track, which would be a simulated track, but an actual GPS track either downloaded from one GPS and uploaded to another, or transferred directly from one GPS to another.

Imagine the following scenario. A bad actor wants to appear as if he's somewhere else. He makes a show of buying a GPS, being seen with it, downloading his "tracks," and keeping them on a computer. He knows someone who has the same GPS with the same capabilities and upload/download system. When he knows the person will be traveling (and tracking himself) he commits a bad act (robbery or violence). The next time he sees the person, he downloads his GPS (with that person's consent, unaware of the bad act) . He uploads the track on his GPS as if it was his own track of his own movements. Police put together the pieces and find the bad actor, and seize and download the GPS. The "planted" track is the basis of the bad actor's alibi. The police, correctly assuming that the GPS is accurate and the "planted" track is valid, make the incorrect assumption that the track is for the bad actor rather than the friend. The police believe the GPS planted alibi. Just because a GPS track is on a GPS does not necessarily mean that it was created on the seized GPS.

This points out the value of verifying GPS track evidence by collateral records - security tapes, toll information, and other GPS sources - like cell phone GPS track compared to personal GPS track records. While it might take more time to confirm or refute an alibi, its worth it. Because both the GPS and these other sources are usually accurately time indexed, there would not be mounds of evidence to sift through to confirm or refute an alibi. In the above situation, camera's along the bad actor's supposed route would show him driving past, stopping for gas (if the track so indicated) or paying a toll at the correct time-indexed points.

This also bears out what I mentioned in an earlier post - a GPS tracks itself, but all else must be verified- and in this case, the bad actor's GPS didn't even track itself, another GPS was doing the tracking.

Other possible scenarios - planted GPS evidence on victims to throw off police investigations, planted GPS evidence to frame innocent persons (when the real criminal created the track & planted it on the innocent person.) Never let the accuracy of the data overwhelm common sense and good investigative proceedures.

Readers will recall that recently Hotel terrorists in India were found with GPS track evidence leading back to Pakistan. Given most GPS units capability to clear their memory with a series of keystrokes, such a track on a GPS seems suspicious - why leave a trail to where they came from? Either the terrorists may have wanted to instigate an outbreak of violence with Pakistan (where they may or may not have come from) or some other party may have wanted it to appear they came from Pakistan. In either case, one must be suspicious of a "smoking gun" GPS track. Such tracks might be planted for reasons unknown.

Wednesday, January 21, 2009

GPS Evidence-What is does differs from What you should do with it

Those who complain about GPS track evidence often confuse the issue of how accurate GPS evidence is and how powerful it is with the moral question of: What do you do with GPS evidence?

What to do with GPS evidence depends highly on the setting and the approach. For instance, compare two employers, the first secretly placing GPS on his fleet of equipment, then catching unsuspecting employees and firing them. The second employer speaks to his workers, announces his philosophy that he believes that most workers are doing their jobs, and its only fair to the workers who are working hard (to reward them) and to disclose the workers who aren't, and either take remedial measures or hire new, equally dedicated employees.

Who has the happier workforce? I would maintain that those workers who have prior knowledge they are being tracked will respond more positively than an "ambushed" workforce, a few of whom may be fired, but the remainder of who will be angry and insulted.
People are concerned about GPS tracking because they believe the information it discloses will be used in the worst possible ways- and they are sometimes justified. Just because an infraction is disclosed by GPS does not make it more culpable than if it were discovered by other means. Perhaps the "other means" are not as reliable as GPS, perhaps people confess when challenged by GPS evidence. This would mean we temper our punishments because we only half-believe other forms of evidence (hearsay, rumor, lie detectors) but when we really "get the goods" on someone with a GPS track, we "lower the boom" on them.

To me, one shouldn't let the quality of the evidence (or lack thereof) be involved in the punishment. If the evidence isn't good, there should be no punishment. But it shouldn't be "double punishment" if the evidence is irrefutable.

Is this reasonable? I would say it is not. While it makes an example of a bad employee, it also alienates all other employees. GPS tracking is so sophisticated, to many people it doesn't feel
"fair." Stealing employer's time and money, that might seem fair, but tracking someone without their knowing about it, well.

Right or wrong, I think that simply disciplining an employee caught with a GPS, and letting him and the rest of the employees know that there's a new way of checking on them will both make the erring employee into a model employee AND deflect ill-will towards GPS tracking. Once warned, any FURTHER violating employees can be dismissed to the fullest extent of the employee handbook.