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.

2 comments:

  1. First thank you for the blog postings. They have been interesting to read.

    It seems to me that there is a difference in purpose between laws regarding sobriety testing and laws regarding tracking the movements of an individual.

    In the case of sobriety testing, the implied consent laws seem to be centered around two points. One, that a driver under the influence is currently placing the general public in danger by the driver's actions. Two, that the evidence of the crime is perishable. Eventually any trace of the crime will expire. With these two items under consideration, it is understandable why states would pass implied consent laws regarding sobriety testing.

    However in the case of tracking movements based on GPS evidence, the driver is not necessarily placing the general public at risk. The evidence might and probably is being obtained to prove some previously committed criminal action that is not ongoing. Also, the evidence of the crime is not perishable. The digital record will continue to exists as long there is no intervening act to destroy the evidence. The passage of time itself would normally not be sufficient for the evidence to expire. This is similar to any evidence that might exist in a suspected persons vehicle. Therefore, the gathering of GPS evidence should be considered similar to gathering any evidence from a suspected person's vehicle. So if you were to apply implied consent laws to GPS Evidence, why would you not apply them to the entire vehicle. Would it be okay to say that by operation a motor vehicle you automatically grant police the right to search you vehicle at any time without permission or even reasonable suspicion? I do not believe so.

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  2. Blog Author's Response to comment:
    Thanks for this comment-it emphasizes several important points.

    GPS evidence can be gathered for, and has stopped, ongoing crimes such as continuing arsons, continuing burglaries, continued and ongoing sexual assaults, and GPS evidence has convicted murders where both the offender themselves or non-police third parties "provided" the tracking evidence.

    Committing a crime on foot gives a small geographic area for police to search. I would argue that unsolved crime has increase primarily due to the criminal's use of high speed private transportation to commit crimes and flee the scene, commit crimes and hide the evidence at remote locations, and commit crimes and hide within a movable hideout, the automobile, which so hinders personal identification as to act as a disguise for criminal activity. Because of high speed private transportation, law enforcement has to have a geographic reach equal to the ability of criminal actors to evade them- GPS evidence gives them the right to do so.

    Constitutionally, there is only a fourth amendment right against searches and seizures where there is no "reasonable expectation" of privacy. (See generally John S. Ganz's article on the links to your left). If legislatures put licensed drivers and vehicle owners on notice that there was no reasonable expectation of privacy in the mere movement of their vehicles by requiring implied waiver of any such possible rights, there can be no constitutional violation. (I agree with Attorney Ganz that "its already public" and there is no reasonable expectation of privacy of the movements of a vehicle in public view.) However, where New York's courts disagree, I believe the New York legislature can step in and regulate the movements of the vehicles on its roads.

    I believe that the legislature has the power to allow searches on the same principle, but they won't, as there isn't a public interest in doing so.

    There is a public interest in what happens when vehicles move. You have to remember that, if GPS evidence doesn't show criminal activity, unlike a police stop, search, or service of warrant, the target suspect does not even need to know the GPS was attached. There is no inconvenience. As a matter of fact, there is LESS inconvenience, as the target will be exonerated as a suspect without even talking to police. No police lineups.

    I also refer you to previous posts about what GPS records-no photographs of activity, no identity of the driver, no actual evidence of crime itself-only location, location, location. And the locations only become relevant through good police work and correlation to mapping systems and research of the background of the suspect. Therefore, GPS track evidence, in itself, only raises questions that guilty suspects can't answer, and innocent suspects will have no problem answering.

    Just as a drunken driver threatens the public interest, those who commit crimes and use vehicles to escape from those crimes are placing the public at risk-one victim at a time. The public has a right to be protected by GPS evidence gathering.

    However, I agree strongly with your concern about what happens to the digital GPS record. But what GPS records should not be confused with the issue of how we as a society control how the information it generates is handled. We have laws controlling lots of private information- information involving medical records, children, certain court cases, adoptions, etc.

    The Legislature must create laws making it a crime to use GPS information to embarrass, blackmail or threaten an otherwise lawbiding citizen engaged in a legal but otherwise embarrassing activity. Legislatures have done it before, they can do it again.

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