GPS spying may prove irresistible to police
As I write this, my car is parked in The Boston Globe's parking lot. Of course, if you're a cop, you may already know this.
It's possible the police have attached an electronic tracking device to my humble Ford Contour, enabling them to track its every voyage. Unlikely, but possible -- and perfectly legal, according to a federal court ruling handed down in New York this month. It seems that police have an unlimited right to use digital technology to track our movements, all in the name of keeping us safe. Somehow, I don't feel any safer.
Robert Moran, a Troy, N.Y., attorney, is a suspected associate of the Hell's Angels motorcycle gang. Moran has been indicted on charges of conspiracy and drug trafficking, partly on the strength of police surveillance, which tracked him driving to various Hell's Angels hangouts. The cops didn't tail him, like private eyes in a film noir. Instead, they stuck a homing device on his car, like the one James Bond used to track Auric Goldfinger, only more advanced. This one used global positioning satellites.
The GPS readouts let the police track a driver's every move, without the risk and expense of putting a human tail on him. Similar devices were used to track California fertilizer salesman Scott Peterson in the days after the disappearance of his wife, Laci Peterson. Evidence from GPS helped to convict Peterson of murder. His attorneys argued that GPS technology was unreliable, but it's good enough to help the US Army find its way around Iraq, and the judge wasn't buying it.
Moran's attorney, Kevin Mulroy, tried a different tack. He demanded the data be tossed out, because police did not get a judge's permission to electronically eyeball his client's movements. "That could be construed as a violation of the Fourth Amendment," Mulroy said. That's the one that forbids police from illegally searching people or their property.
US District Judge David Hurd didn't see it that way. "Moran had no expectation of privacy in the whereabouts of his vehicle on a public roadway," Hurd wrote in his ruling. "Thus there was no search or seizure and no Fourth Amendment implications in the use of the GPS device."
On the surface, Hurd's ruling makes perfect sense. But think it through and it ought to give you the creeps.
Police obviously have the right to follow suspicious characters through public places. If they had to get court orders first, the hoodlums would own the streets. Hurd figured that in this case, the police were simply using a digital technology to do the same thing police had always done.
The judge was backed by the best kind of precedent: a 1983 US Supreme Court ruling. The high court held that police did not need a warrant before planting a radio beacon inside a drum of chemicals, then tracking the drum to an illegal methamphetamine lab. As they say on "Law and Order," the case is on point.
But if GPS surveillance doesn't require a visit to a judge, can the government digitally track a citizen's location whenever it chooses? Assistant US Attorney David Grable, prosecutor in the Moran case, thinks so: "I think the government would take the position that since it's not a search, you don't need any justification to use any one of these devices."
He admitted the concept is troubling. "I get nervous about some of these big brotherish implications," Grable said. But he believes cops won't generally abuse this power, because they haven't the time or the inclination to track people at random.
But soon they won't have to. GPS devices are being built into more and more automobiles. They're embedded in millions of cellphones. So is the cost of routing the intercepted signal to a computer system that could maintain a database of every location visited by every car on every day. As long as those cars or phones are on public roads, the users have no right to object.
Hurd's ruling, and the Supreme Court decision on which it's based, are rooted in the limitations of the physical world. In an age when cops could only tail you on foot or by car, there was no need to set legal limits on the practice. The department's budget and an officer's sore bunions did the trick.
"Manpower is limited. It forces you to make decisions," said Lauren Weinstein, moderator of the Privacy Forum, an Internet site. "But GPS is cheap." So cheap that the temptation to engage in casual surveillance may become irresistible.
In a world gone digital, where cops can follow you anywhere by pushing a few buttons, it's time to think differently. Just as there are sensible laws governing the use of wiretaps, there should be statutes requiring some kind of judicial review before the police can track a citizen's travels.
Until then, a bit of advice to the police: I rarely travel anywhere you'd find interesting. Take my word for it. Please.
Hiawatha Bray can be reached at bray@globe.com.
