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.

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