Most who will read this blog will know by now that the U.S. Supreme Court made its ruling in U.S. v. Jones, 565 U. S. ____ (2012)(No. 10–1259). Most will believe the press that the court announced sweeping rules requiring a warrant any time law enforcement uses a GPS to track a vehicle. Some, however, will realize like Professor Orin Kerr, that this was actually a very narrow ruling.
The majority of the Court decided that attaching a GPS
unit to a vehicle was a “trespass,” and that “trespass” constituted a fourth amendment “search.” Because the government attorneys arguing the case at the courts below the Supreme Court didn't address fully whether the search was reasonable, but only argued that it was reasonable at the Supreme Court, the Court found that the issue of “Reasonable Search” was waived-but only for the Jones case.i Future cases that can argue that attaching a GPS unit is reasonable may not be excluded by the 4th amendment.
Of course, the majority opinion and the concurrences would have used different grounds to reverse the decision:common law trespass vs. “reasonable expectation of privacy.” Whether GPS attachment was “reasonable” is important for two reasons: 1) the fourth amendment only protects against unreasonable searches; and 2) there is a whole body of U.S. Law giving law enforcement privileges to “commit acts that would otherwise be a trespass” if under a Duty or Authority Based Upon Public interest, and if they act reasonably. Restatement of Torts (2nd) §265.
The Court seemed to equate the volume of the data a GPS can produce with a trespass, which the concurrence attacked as leading to “vexing” future problems. Clearly, this is a rational approach, analogous to viewing the tiny trespass of a few lines of computer code loaded into an unsuspecting computer transferring reams of information to law enforcement.
My reading of the opinion is that the government, in the proper case, may be able to argue “reasonableness” based on the length of the surveillance. However, as noted by the concurrence, with no clear bright line of what would and would not be reasonable, law enforcement will have no idea what to do to get admissible evidence, until each and every type of case reaches the court and is ruled on.
The one question the U.S. Supreme Court did lay to rest-GPS accuracy is certainly sufficient to admit tracking results into evidence. Indeed, its very accuracy results in the privacy issues complained of. If GPS can't pinpoint a private location, than targets can have no issue with it disclosing private destinations.
In the nearly twelve years since GPS tracking began, no real meaningful legislation has been passed to either limit the collection or the use of GPS generated data. I published an article in 2004 urging legislation; the Wisconsin Court of Appeals and Supreme Courts asked for legislation, and yet, there is no GPS evidence regulation in Wisconsin. Any court can only react to the case and facts before it; even the Jones court made a very limited ruling that gives little guidance to law enforcement.
Therefore, I believe it is time for law enforcement to proactively demand a system that allows warrantless GPS data collection, but cannot be used to disclose the private destinations of tracking targets, without a good reason, on the record, and while leaving a record for a court to review and act upon. Given the requirements of Jones, such a system would also enhance the probability that GPS evidence collected with a defective warrant, lapsed warrant or procedurally questionable warrant would survive constitutional challenges, under either state or federal constitutions.
Why should this burden fall upon law enforcement? Law enforcement will save the budget dollars; law enforcement must face the victims; law enforcement can remove GPS evidence's “Big Brother” stigma; and law enforcement faces the possibility of years of total uncertainty while the judiciary tries to address GPS evidence problems one small issue at a time. Therefore, law enforcement should demand GPS manufacturers produce GPS devices that encrypt GPS track evidence, decrypt limited evidence only after cataloging and reporting all access to GPS evidence, and allow law enforcement the ability to introduce only that evidence necessary to obtain a conviction, and destroy evidence not relevant to the case.
WHY IS GPS TRACKING EVIDENCE NECESSARY?
Historically, sixty years ago, crime occurred where the criminal was. Investigators were where the criminal was. Public transportation – trains, planes, buses or streetcars, were too slow, too unreliable, and allowed for recognition of the criminal after the commission of a criminal act, so could not be used as a “get-away” path. However, with the advent of cheap used automobiles that generally look alike, a system of superhighways that allow a criminal to travel 70 miles per hour, legally, away from where his criminal acts were committed, gives the criminal a virtual cloak of invisibility-the automobile.Physical tracking is almost impossible, given budgets, traffic, speed of travel, and similarity of auto styles.
Because the criminal can increase the geographic territory of his crimes, local law enforcement must now go farther, faster, and better, with fewer officers and shrinking budgets. Because law enforcement doesn't even know which way a criminal might flee, they must investigate much more territory to find and prosecute a criminal. For every mile further from the scene they go, more and more population must be considered (including the criminal population) as persons of interest, increasing geometrically. This is not just in one direction, but in ALL directions, and ever increasing circle for each mile traveled. Even if the police locate a suspect, the speed of travel makes it harder to establish timelines, thwart false alibis, detect false statements, etc. This gives the person of interest great leeway in lying about his whereabouts and activities. It is a wonder any crimes are solved at all.
If a vehicle a criminal is driving is being tracked by a GPS unit, however, law enforcement can:
Limit the playing field- Once law enforcement has a GPS track, the suspect will have to answer questions about why he was where he was during the time of the crime. By geographically limiting where the suspect can say he was, he is limited in false excuses of why he was at that location. Tracking targets that answer where they were honestly have no problems justifying their presence at geographic locations.
Establish the time line-Along the same lines, because GPS establishes not only the place of travel but the time of travel, a criminal answering falsely will not only have to fit geographic details into their lie, but chronological ones.
GPS tracking evidence, therefore, focuses the investigation in time and space.
GPS tracking evidence does not answer questions, but raises questions that the innocent will (usually) have no problems answering, but the guilty will have no good response for.
GPS, therefore, removes some of the virtual cloak of invisibility modern automobile travel gives a criminal. However, such tracking must be constitutional, and after Jones, it looks such tracking must reasonable protect private destinations from disclosure, or the track evidence will be excluded.
WHAT IS “REASONABLE” IN GPS EVIDENCE GATHERING?
It is not the tiny bulk of the GPS device, attached by magnets or glue, that has offended any court. It does no damage to the vehicle it is attached to, and, unless a warrant so permits, uses no electricity and is not hooked to the cars wiring. Rather, it is the information that the GPS device generates that the court finds constitutes a search.
We hold that the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a “search.” U.S. v. Jones, 565 U. S. Slip Opinion at 7 (2012)
What is this information? A track, that is, a series of connected longitude and latitude fixes, (track points) each labeled with a very accurate time stamp.
Breaking down the process, is it the collection of the GPS fixes that troubles the court and make the trespass a search? Collectively, yes. Individually, perhaps. Perhaps not. Here's the problem. A series of track points can be used by law enforcement, or anyone viewing the track when correlated with electronic mapping software, to track very legal but very private activities, “including professional, religious, and sexual associations. See, e.g., People v. Weaver, 12 N. Y. 3d 433, 441–442, 909 N. E. 2d 1195, 1199 (2009) ('Disclosed in [GPS] data . . . will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic,the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on').” Slip op. Concurrence 565 U. S. ____ (2012) at 3.
Under current GPS tracking systems, when law enforcement either gets GPS track information in real time or retrieves and downloads a GPS device, they get ALL the information, private forbidden information (if any), innocuous information, and, what they are looking for, evidence of any crimes or criminal activity. Ironically, just thepossibility that private information track points might be disclosed and abused is sufficient to exclude the relevant track points that evidence a crime. In short, law enforcement gets TMI-”too much information.”
COLLECTION vs. POTENTIAL USE
Every day, confidential and potentially embarrassing information is collected on thousands if not hundreds of thousands of people every day. Each time we pick up a phone, the recipient, the length of the call, and much other information is recorded. Our medical and Social Security records contain reams of personal information, much of which we might find embarrassing if disclosed. However, we accept the information beingcollected because we are assured it will be kept private. Yet, courts do issue warrants, when necessary, for phone records, medical records, etc., based on probable cause and the reasonable needs of law enforcement for the common good. The gathering of medical, phone, and other private information is not barred by the fourth amendment. Why should the gathering of information about private activities in public areas on a GPS system be found unconstitutional, if it can be kept confidential?
How, then can we create a system where relevant GPS data can be collected, but not disclose private and personal information without a warrant?
NATURE OF GPS TRACKS
The answer to a “reasonable” GPS evidence collection and distribution lies in the nature of GPS data collection- each track point is separable from the next track point; each has its own time stamp, longitude and latitude. Each track point will either be either relevant evidence, superfluous information, or even forbidden private but legal information. A “reasonable” GPS system would allow disclosure of the relevant evidence, but keep superfluous information and private information hidden.
Crimes that are investigated by GPS tracking have links to locations in geophysical space-otherwise a GPS investigation would show nothing. A murder may occur at a specific location, a chain of burglaries happens at certain longitudes and latitudes, conspirators meet in specific places, etc. (I'll call these “crime points” for shorthand.) Where there is a physical location of a crime and there is a GPS track points collected, law enforcement could calculate relationships between the track point information and crime point information that would either give them probable cause, or exclude the tracking target from the investigation.
Therefore, if the GPS tracking device can 1) record all the information BUT 2) encrypt the information, and store it in a database-type system, private data won't be exposed. Law enforcement can then (without a warrant) ask the database specific queries that relate to the crime scene or physical evidence locations:
On (date(s)) in (timeframe(s)) what distance was (GPS unit serial number) from (crime-point- Locations of a string of burglaries)?
NOTE: Such a query would not expose private information, because although it might give the distance to the crime scene, it does not give a compass bearing, or the actual longitude-latitude location of the GPS unit.
I will describe many variations on this query system later.
THE EQUAL JUSTICE SYSTEM OF GPS TRACKING
STEP 1: GET A WARRANT
STEP 2: ENCRYPT GPS TRACK DATA ON DEVICE
Because GPS data collection alone is reasonable, if that data is either never disclosed or disclosed only in such a way that legitimately private information is protected, ANY
recording of GPS data would have to be immediately encrypted, and either stored on the GPS unit, or encrypted on the unit, then transmitted and stored to a secure third-party site.
Using rolling codes devices paired with the GPS ensures that only those in possession of the rolling-code device can decrypt the track information or make queries. Recording all access insures that attempts to access track points will be documented for court consideration.
STEP 3: TREAT THE TRACKPOINTS AS A DATABASE, AND QUERY THE DATABASE FOR AS LITTLE INFORMATION AS NEEDED CONVICT THE INDIVIDUAL OR TO ESTABLISH PROBABLE CAUSE FOR A WARRANT TO DECRYPT LIMITED GPS TRACKPOINT LOCATIONS.
GPS evidence is simply computer data that can be compared, like a database, butwithout disclosing the actual location of that data. For instance, knowing that the vehicle in question was within 500 feet within the timeframe in question limits the law enforcement inquiry and helps pin down the person of interest to that location. The Equal Justice GPS system would allow such comparisons without giving the exact locations of the encrypted trackpoints, thus preserving privacy until a spacial relationship between the “crimepoints” that are known and the encrypted trackpoints, that remain unknown, is established.
The only way to decrypt this data would be through software that uses a rolling-code device (such as banks use to access accounts) to allow even partial decryption. ALL decryption attempts would be documented by the firmware and stored in the firmware; therefore, an electronic record would exist of every query or attempted query of the encrypted track.
As discussed above, law enforcement queries without a warrant would expose onlyrelationships between the encrypted track points and crime points, but not the actual locations themselves.
Queries to the encrypted database would proceed only as needed to get either probable cause, or to further the investigation by non-GPS based methods- that is, physical investigations, questioning persons-of-interest or witnesses, or checking other technology – such as security cameras that might have recorded physical evidence of a target's presence.
Keeping the search “reasonable” would use the least amount of warrantless GPS possible to accomplish the goal of solving the crime or getting a warrant for the rest of the already gathered evidence. This step-by-step method investigation would ensure that no more GPS evidence is used than is absolutely needed to get to probable cause.
This “relationship” information will raise questions-questions an innocent person will have no problems answering, but questions a guilty person won't be able to answer.
STEP 4: APPLY FOR A WARRANT FOR DECRYPTING RELEVANT GPS TRACKPOINTS; BUT ONLY DECRYPT WHAT IS NECESSARY
With “relationship” data in hand (for instance, that the GPS, attached to the target vehicle, was 220 feet from the scene of a burglary in the 5 hour window of the burglary) will determine when they have probable cause to unlock the actual GPS locations- but only for relevant time frames (related to crime points) and relevant time frames (also related to crime point times frames.) Accordingly, even though a GPS device might be attached to a target's vehicle for 6 months, only a few hours and few hundred track points might be relevant to the case. This avoids “Big Brother” tracking, unrelated to specific crimes or events. Prosecution will continue with the pinpoint GPS evidence of the crimes, together with any physical evidence available.
STEP 5: ERASE UNUSED GPS TRACK INFORMATION
There will be targets where Step 2 Queries will give no relationship between the GPS track points and the crime points. This does not exonerate a target; perhaps a different vehicle was used to commit the crime. However, when an investigation is no longer open; has run out of leads, or ends in conviction (and all appeals are exhausted), all unused GPS evidence should either be archived while encrypted, or erased. Digital erasure to Department of Defense protocols will ensure that any private data will be completely destroyed. Archived encrypted must be justified in the same manner as queries. The GPS units could be programmed with “drop dead” dates that would required further action (with warnings) or encrypted data would be erased, further ensuring continued privacy.
THE EQUAL JUSTICE GPS TRACKING SYSTEM IN SPECIFIC SITUATIONS
KNOWN CRIME LOCATIONS- (Crime example- Arson) Police think a target has been setting fires, but haven't got enough probable cause evidence for a warrant. Police place a Equal Justice GPS device on the target vehicle. When the next fire occurs, they recover the GPS and query the encrypted database for the GPS distance to point of fire origin for 3 hours before and after the suspected start time of the fire, which report the unit was 30 feet from the crime point fire origin. Using this information, they get a warrant to decrypt GPS data that for seven other fire scenes and get GPS data of the times surrounding those scenes. The other four months of irrelevant GPS data is erased. The alleged arsonists 4th amendment challenges fail; the search is deemed reasonable.
LINKING TARGET WITH MULTIPLE POTENTIAL CRIME LOCATIONS(Crime example-drug dealing) Where Law enforcement knows the locations of believed drug houses, but can't connect the person of interest to those locations, they can attach a Equal Justice GPS to the target vehicle. After a time period, they can query the GPS database about specific times the target visited the specific locations, within a certain radius. Given this information, they can either apply for a warrant, or ask the Equal Justice GPS for a real time warning of an approach of any of the locations.
POTENTIAL STALKING SITUATIONS- Where the crime point might be a person that is constantly moving, things get more complicated. However, someone who is the victim of stalking, who is a witness, or needs police protection from the tracking target will have no objection to wearing a Equal Justice GPS unit paired to the Equal Justice GPS unit attached to the target vehicle. Both GPS units encrypt their locations, and without human intervention, exchange and compare locations – and if the locations come within preset distances, signal an alarm to Law enforcement and transmit both decrypted locations for immediate action. Again, no private information on the tracked target is disclosed.
PROVING A CONSPIRACY – Two (or more) linked GPS units, both with encrypted data, could be programmed to communicate securely with each other, trade data, etc. When attached to two (or more) vehicles of possible co-conspirators, the units will report only “meetings” within a certain geographic distance, at a certain point-but keep the other travel details of the targets private and undisclosed. Of course, this will be useful when the parties claim never to have met, or not met within a certain time frame. In a conspiracy, linking the targets is likely more important than the location of the meeting, although if one location is linked to a target (like the target's home) conspiracy might be easier to prove.
TERRITORIAL MODE – (crime; violent crimes like serial rape or muder in a specific area) When crimes are occurring in different locations, but in a specific territory, neighborhood, or area, law enforcement can set up a “geofence” in the Equal Justice GPS- that is, a geographic boundary (square, circle or closed irregular boundary) that will trigger the Equal Justice GPS to start reporting the target's encroachment in realtime, decrypted mode (while keeping movements outside the geofence encrypted.) While this mode is constitutionally more risky than a standard encrypted passive tracking mode, it would be used for violent crimes tracking targets where criminals “hunt” for victims that are at risk of life and limb, or arson tracking targets that could kill people. Property crimes that can be later matched to “crime points” are not worth the constitutional risk. Alternately, Equal Justice territorial mode could be used on probation or parol, or bail targets to allow them privacy and freedom of movement within a specific geofenced geographic area, but trigger real-time tracking if they leave the geofenced area.
LOCATE UNIT MODE – Since GPS's are not attached to a vehicle's electrical system (as most courts determine that attachment using electricity is both trespass and unreasonable) units must be recovered at some point. Allowing a unit to broadcast a “I'm here” beacon if not recovered when power is waining constitutes only a slight constitutional risk and seems reasonable, as long as such “beaconing” is not recorded as unencrypted evidence.
EMERGENCY REAL TIME MODE-For use in “Exigent circumstances.”(See Wikipedia, 4th Ammend.) There will be situations where a Equal Justice GPS is attached to a vehicle, and law enforcement will be faced with an emergency- information a child is kidnapped in the vehicle, gleaned from other evidence. The Equal Justice System should have a real-time tracking emergency mode triggered by the correct rolling code trigger. This mode should allow the officer to go back in time; but the officer should be able to control how far back in time to go, so that he doesn't violate even the rights of an alleged kidnapper.
ADVANTAGES OF TRACKING WITH THE EQUAL JUSTICE SYSTEM GPS
- The time an Equal Justice GPS unit is attached to a vehicle is no longer relevant to any “reasonableness” analysis – Case after case discuss the time period the target is under surveillance, with the justified idea that the longer surveillance lasts, the more privacy is lost. While such an idea can be attacked on several logical grounds (a legal secret that occurs once every six months should not be given more respect that daily AIDS treatments or chemotherapy), the Equal Justice System equipped GPS would protect both secrets equally – regardless of how long the unit was attached. If the target has no geographic relationship to the crime points, no information will be reported. Indeed, Equal Justice queries may exonerate innocent targets quicker than those who are not tracked at all- at lower expense, and at no loss of privacy. The longer a tracked target is not related to the crime points, the better for the target.
The Equal Justice GPS System allows Law Enforcement to proceed more accurately and control the risk of getting GPS track evidence thrown out, step by step. With Equal Justice, law enforcement can decide to query the database so that they have just enough information to collect other evidence, or apply for a warrant to decrypt the relevant portions of the GPS track. They can question a target or witnesses, query the track, and with new information go back to the target or witness, all while making sure to protect the private information that may be contained on the track. If the target isn't caught by real-time tracking, the track within the geofence can be decrypted (with a warrant) to disclose possible links to the targets whereabouts.
The Equal Justice GPS System allows the same cost savings, deterrence, and crime solving capabilities that a standard GPS system save, with less privacy risk. Because the Equal Justice System increases the likelihood of a conviction on more limited GPS evidence, it will reduce appeals, court costs, encourage early pleas, and remove uncertainty from prosecutions, thus speeding up the justice system.
Tracking with an Equal Justice GPS System actually preserves more privacy than a physical human surveillance would – Because a human surveillance team must follow a target anywhere they go, not just to “crime points,” a human surveillance team would disclose exactly the types of secrets U.S. v. Jonesseeks to protect. This points out one of the weaknesses of the Jones analysis- that although human surveillance is difficult and expensive, it is legal, it can be done, and it will be done, in the right case. So, high value target secrets tracked by humans aren't protected, but low value target secrets are? The Equal Justice System treats both the same.
Equal Justice System Technology could even protect the privacy of Workers- Employers have the right to require GPS tracking on Employee vehicles as a condition of employment, but may chose to protect the off hour or off territory
If a “crime point” is a “private destination,” even a Equal Justice System GPS will likely disclose that fact; but so would a standard law enforcement investigation. Taking precautions to preserve privacy (of thing, it must be remembered, that are done in public) meets the test of “reasonableness”; there is no guarantee of privacy when traveling in public.
While Equal Justice technology might well be patented, I am releasing it under a GNU public license. Why? While courts talk about how many officers it might take to mount an investigation, criminals have gotten more mobile. Criminal hurt real victims. To the potential victims, budgets, ease of investigation, how much work it would take to bring a person to justice just doesn't matter. I hope this technology helps potential victims stay just that, potential, not real, victims. At the same time I recognize that GPS evidence can be misused to bully a citizen with a legal secret into pleading to a crime. Equal Justice technology with save those potential victims and preserve their privacy. Criminals shouldn't be able to hide behind the legitimate privacy concerns of citizens; Citizens shouldn't have to sacrifice privacy because there are criminals – then those citizens also become criminal victims.
Does an Equal Justice GPS System exist today? No. However, all the technology I've mentioned is “off the shelf,” and nothing more than combinations of devices already in use, and some software. I suggest the “data screens” because sometimes imagining the technology is harder than actually putting it together. This is a blueprint. I know at least one GPS tracking system that, because of its current sophistication, could probably accomplish everything the Equal Justice System requires with some changes to firmware and a few software changes. So, please, build this system!
iWhat of a 2-day monitoring of a suspected purveyor of stolen electronics? Or of a 6-month monitoring of a suspected terrorist? We may have to grapple with these “vexing problems” in some future case where a classic trespassory search is not involved and resort must be had to Katz analysis; but there is no reason for rushing forward to resolve them here.
The Government argues in the alternative that even if the attachment and use of the device was a search, it was reasonable—and thus lawful—under the Fourth Amendment because “officers had reasonable suspicion, and indeed probable cause, to believe that [Jones] was a leader in a large-scale cocaine distribution conspiracy.” Brief for United States 50–51. We have no occasion to consider this argument. The Government did not raise it below, and the D. C. Circuit therefore did not address it. See 625 F. 3d, at 767 (Ginsburg, Tatel, and Griffith, JJ., concurring in denial of rehearing en banc). We consider the argument forfeited. See Sprietsma v. Mercury Marine, 537 U. S. 51, 56, n. 4 (2002).“
U.S. v. Jones,: 565 U. S. ____ (2012) at 8.