Friday, January 30, 2009

A Call for Uniform GPS State Regulation

According to wbstv.com (http://www.wsbtv.com/2investigates/18588494/detail.html) 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.

Monday, January 12, 2009

GPS evidence & Jurisdiction-Proponent & Opponent

In order to charge someone with a crime, or to join them in a lawsuit, the court you wish to bring to your aid (or the "peoples" aid, if you are a criminal victim) must have jurisdiction over the person. Black's Law Dictionary, Sixth Edition, defines jurisdiction as:
"A term of comprehensive import embracing every kind of judicial action. It is the power of the court to decide a matter in controversy and presupposes the existence of a duly constituted court with control over the subject matter and the parties. Jurisdiction defines the powers of courts to inquire into facts, apply the law, make decisions, and declare judgment. The legal right by which judges exercise their authority. It exists when court has cognizance of class of cases involved, proper parties are present, and point to be decided is within powers of court" (Paraphrased). In other words, the court has to have the authority before it can render a judgement.
While there are many different kinds of jurisdiction, one main way of establishing jurisdiction is geographic. For instance, usually if an auto accident happened within the boundaries of a state, its laws control how the case is handled, how damages are awarded, what time limits apply, what elements of damage are available, etc. While police usually can determine such things, in some border cities, things can get complicated. In Beloit, Wisconsin, at least one road runs right down the Wisconsin-Illinois border. How, then are head-on accidents handled? Under which state's rules? It depends on whether the center line is crossed, and who crossed it. GPS evidence can help. . . or, it may not have the accuracy to do more than muddle the question.
The stakes are higher in criminal cases. There have been cases where a murder occurred, and even the perpetrators did not know what state they were in when the murder occurred.
One state may have the death penalty, the other does not. How to prove where the murder occurred? Again, GPS evidence will help, if there is a GPS track available. Likely, the vehicle was stopped to dispose of the body, probably close to the place of the murder (especially if it is in a moving vehicle). GPS gives the timeline to show what happened when, including the stop of the car to dispose of the body, or erratic driving during a struggle.
However, there is a catch. Different rules may apply from one state to another about how GPS track evidence will be handled. Was the GPS unit attached in a state that doesn't require a warrant, but indicates the murder happened in a state that requires a warrant for GPS evidence admission? Or the converse, the GPS unit attached without a warrant in a state that requires one, but indicates the murder occurred within the borders where warrantless GPS attachment is allowed?
Finally, in this mobile society, we can imagine cases where GPS evidence will be offered of cross-country trips, for instance, to show how illegal aliens or illicit drugs were smuggled. If one of those states should bar the admission of GPS evidence, will the court of the state trying the charge have to exclude that portion of evidence for that state? Or will it admit that evidence, because the state trying the case allows such evidence? Will proponents have "holes" in their evidence that will defeat the case because of the differing treatment of GPS evidence?
Today, we have cross country trains, planes and trucks and cars that are recording the same GPS track evidence from one state to the next. Both the value and admissibility of that evidence may depend on the whims of the last appellate court to rule on GPS evidence handling, even though both quality and the methods of gathering the evidence is identical from state to state.
The catch-22 is, how can you use excluded GPS evidence to prove the GPS evidence should not be excluded? The only reasonable way I know would be an offer of proof. However, where two courts are battling over jurisdiction, and one rejects the GPS evidence on its face because of the manner of its collection, there will likely be no resolution short of an appeal to the highest courts.
A more rational system would be for the legislatures to adopt uniform laws for the states to follow, as has been done for child custody, the uniform commercial codes, etc., stating how and when GPS evidence will be handled in the types of situations that are likely to occur.
Getting back to jurisdiction, how can you prove you are in the wrong court if the court won't listen to your GPS evidence that you are in the wrong court? Or, how can you prove that the court has jurisdiction if the court won't view the evidence proving it has jurisdiction? The only answer I can come up with is, either uniform laws, or a pre-emptive federal law that will take GPS evidence-handling out of the hands of state governments.
There is rational for such regulation under the Commerce Clause-clearly, the GPS satellites in high earth orbit are outside any state jurisdiction. Furthermore, any GPS unit accessing those satellites must tune to frequencies that originate outside state boundaries for triangulation purposes. Jurisdictionally, this type of access is interstate commerce. Accordingly, at least for commerce and civil law purposes, GPS evidence should be able to be federally regulated, and not barred from admission in any state base on state law rulings. Like navigable waterways and other interstate commerce, free flow of GPS evidence will not only resolve jurisdictional conflicts but resolve cases more quickly, efficiently and with fewer judicial resources.

Friday, January 9, 2009

Relevancy of GPS evidence under 904.01 Opponent


A GPS track may be constitutionally collected. A GPS track may be accurate. A GPS track may depict a time frame that included the events that the case is about. And yet, a GPS track might not be admissible because the track is not relevant. Wis. Statutes 904.02 admits all relevant evidence; 904.01defines "relevant evidence" as "evidence having any tenancy to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the existence of the evidence."

How can a track that depicts a relevant time frame not be relevant? Track users often forget that the “line of travel” that tracks depict is just an estimation of travel between a line of points. The line does not really exist, only the track points. Depending on the issue the fact finder must decide, these track points may be too far apart to give the judge or jury relevant information, and thus the entire track should be excluded.

For instance, if the issue is whether the tracked vehicle ran a stop light, a single track point that falls 4 minutes before the accident and second that falls two minutes after the accident would likely have little relevance to the timing of the accident. However, a two-second track-point track in the same situation would have relevant, but not conclusive, information for the jury, especially if the track showed the tracked vehicle stopped at the light.

Imagine the issue in the photo above (courtesy of GPS Insight http://www.gpsinsight.com/) is which of the two roads visible the defendant traveled to get to point “A”. The 2 minute track (red) clearly doesn't give that information, while the 3 second track of the same vehicle shows the driveway stop happened. Accordingly, the 2 minute track would not be relevant. However, if the issue is defendant's denial of driving anywhere near the area, both tracks would be relevant, as both tracks place the defendant's vehicle in the area.1

Therefore, the first question should be, what is really the issue GPS evidence is intended to address? While it is high tech, and has the “CSI” sexy factor, it may not be able to prove any disputed fact in the case, and therefore may have no relevance. Second, if GPS evidence in general can address the disputed issue, does the proffered track in particular have the ability to address the issue? The answer can be a flat no (GPS evidence not relevant, and should be excluded), clearly yes (admit the GPS evidence), or a close call (allow the evidence to be admitted and let the parties argue its relevancy to the jury).

A jury can be pretty unforgiving of "overkill". A few years ago, I heard about a case where the police had very convincing evidence of a felony, but also tried to convict the defendant of using a specific vehicle to commit the felony in the same case. The defendant didn't present any exculpatory evidence on the principle charge, but presented an airtight defense to the use of the specific vehicle. When the defense counsel finished his case, he asked the jury, in essence “If the State was so sure of this vehicle charge, and got it so wrong, what else did they get wrong? Can you be sure beyond a reasonable doubt?”

My point is, using GPS evidence that is arguably irrelevant might backfire, as if the jury figures out, or the defense correctly points out how meaningless it is, the proponent will be in danger of the jury asking “Is this all they have? How weak is their case if they are relying on this?”
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1This photo does not depict any actual crime scene, but was created to show the difference between "dense" track-points and less frequent track-points in general transportation use. See http://www.gpsinsight.com/blog/?p=443