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Wednesday, January 25, 2012
Supreme Court Says Warrant Needed For GPS Tracking
Justices express concern over the use of advanced surveillance technologies
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WASHINGTON (AP) — In a rare defeat for law enforcement, the Supreme Court unanimously agreed on Monday to bar police from installing GPS technology to track suspects without first getting a judge's approval. The justices made clear it wouldn't be their final word on increasingly advanced high-tech surveillance of Americans.
Indicating they will be monitoring the growing use of such technology, five justices said they could see constitutional and privacy problems with police using many kinds of electronic surveillance for long-term tracking of citizens' movements without warrants.
While the justices differed on legal rationales, their unanimous outcome was an unusual setback for government and police agencies grown accustomed to being given leeway in investigations in post-Sept. 11 America, including by the Supreme Court. The views of at least the five justices raised the possibility of new hurdles down the road for police who want to use high-tech surveillance of suspects, including various types of GPS technology.
"The Supreme Court's decision is an important one because it sends a message that technological advances cannot outpace the American Constitution," said Donald Tibbs, a professor at the Earle Mack School of Law at Drexel University. "The people will retain certain rights even when technology changes how the police are able to conduct their investigations."
A GPS device installed by police on Washington, D.C., nightclub owner Antoine Jones' Jeep and tracked for four weeks helped link him to a suburban house used to stash money and drugs. He was sentenced to life in prison before an appeals court overturned his conviction.
It's not clear how much difficulty police agencies would have with warrant requirements in this area; historically they are rarely denied warrants they request. But the Obama administration argued that getting one could be cumbersome, perhaps impossible in the early stages of an investigation. In the Jones case, police got a warrant but did not install the GPS device until after the warrant had expired and then in a jurisdiction that wasn't covered by the document.
Justice Antonin Scalia said the government's installation of the device, and its use of the GPS to monitor the vehicle's movements, constituted a search, meaning a warrant was required. "Officers encroached on a protected area," Scalia wrote.
Relying on a centuries-old legal principle, he concluded that the police action without a warrant was a trespass and therefore an illegal search. He was joined in his opinion by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Sonia Sotomayor.
All nine justices agreed that the GPS monitoring on the Jeep violated the Fourth Amendment's protection against unreasonable search and seizure, a decision the American Civil Liberties Union said was an "important victory for privacy."
But there was a major division between Scalia, the court's conservative leader, and Justice Samuel Alito, a former federal prosecutor and usually a Scalia ally, over how much further the court should go beyond just saying that police can't put a GPS device on something used by a suspect without a warrant.
Alito wrote, in a concurring opinion, that the trespass was not as important as the suspect's expectation of privacy and the duration of the surveillance.
"The use of longer-term GPS monitoring in investigations of most offenses impinges on expectations of privacy," Alito wrote in an opinion joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan. Sotomayor in her concurring opinion specifically said she agreed with Alito on this conclusion.
No justice embraced the government's argument that the surveillance of Jones was acceptable because he had no expectation of privacy for the Jeep's location on public roads.
Alito added, "We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the four-week mark."
Regarding the issue of duration, Scalia wrote that "we may have to grapple" with those issues in the future, "but there is no reason for rushing forward to resolve them here."
Sotomayor, in her separate opinion, wrote that it may be time to rethink all police use of tracking technology, not just long-term GPS.
"GPS monitoring generates a precise, comprehensive record of a person's public movement that reflects a wealth of detail about her familial, political, religious and sexual associations," Sotomayor said. "The government can store such records and efficiently mine them for information for years to come."
Alito also said the court and Congress should address how expectations of privacy affect whether warrants are required for remote surveillance using electronic methods that do not require the police to install equipment, such as GPS tracking of mobile telephones. Alito noted, for example, that more than 322 million cellphones have installed equipment that allows wireless carriers to track the phones' locations.
"If long-term monitoring can be accomplished without committing a technical trespass — suppose for example, that the federal government required or persuaded auto manufacturers to include a GPS tracking device in every car — the court's theory would provide no protection," Alito said.
Sotomayor agreed. "It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to their parties," she said.
Washington lawyer Andy Pincus called the decision "a landmark ruling in applying the Fourth Amendment's protections to advances in surveillance technology." Pincus has argued 22 cases before the Supreme Court and filed a brief in the current case on behalf of the Center for Democracy and Technology, a civil liberties group with expertise in law, technology and policy.
Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., said the court's decision was "a victory for privacy rights and for civil liberties in the digital age." He said the ruling highlighted many new privacy threats posed by new technologies. Leahy has introduced legislation to update the Electronic Communications Privacy Act, a 1986 law that specifies standards for government monitoring of cellphone conversations and Internet communications.
The lower appellate court that threw out Jones' conviction also objected to the duration of the surveillance. The case is U.S. v. Jones, 10-1259.
Monday, January 9, 2012
Video, a New Tool for the Police, Poses New Legal Issues, Too
By ERICA GOODE
Published: October 11, 2011
When a man was fatally shot by a police officer on a street in Oakland, Calif., late last month, the shooting was captured by a video camera.
Steven Alford/Corpus Christi Caller-Times
Officer Nick Navarez of the Corpus Christi, Tex., police tried out a video camera. The cameras are increasingly popular.
But the video was not taken by an alert pedestrian with an iPhone. It was recorded by a device clipped onto the police officer’s chest.
The Oakland Police Department is one of hundreds of law enforcement agencies that are trying out the body-mounted video cameras, using them to document arrests, traffic stops and even more significant encounters, like officer-involved shootings.
The cameras, legal experts say, are the latest addition in a world where everyone is increasingly watching everyone else.
The police already record illegal left turns and ignored stop signs using cameras mounted on the dashboards of cruisers — evidence displayed vividly on video screens in courtrooms, sometimes to the chagrin of drivers who have just insisted they did no such thing.
Surveillance cameras watch for shoplifters and potential terrorists. And ever since a bystander recorded Los Angeles police officers beating Rodney King in 1991, video has been used by witnesses or suspects to record what they believe to be misconduct or inappropriate behavior by the police — a practice that has proliferated with the advent of smartphones.
The ubiquity of video in police encounters — some of it promptly uploaded onto YouTube — is creating new frontiers for judges and lawmakers, who must sort out the issues raised by the new technologies.
Courts in several states are considering cases where citizens who videotaped the police have been charged with violating wiretapping or eavesdropping statutes, prosecution that civil rights lawyers say violates First Amendment rights.
If body cameras are widely adopted by police departments — Vievu, the Seattle firm that sold Oakland its cameras, has supplied them to more than 1,100 police agencies across the country, according to Heidi Traverso, a company spokeswoman — privacy questions are likely to be added to the legal stew.
“If a police officer is taking a picture of every interaction, one of the things that he may find is me, naked as a jaybird, when my wife calls to complain,” said Franklin E. Zimring, a professor of law at the University of California, Berkeley. “Let’s assume that it’s either against the law or not, but I sure don’t want it on YouTube. The potential for a sort of permanent embarrassment is a looming presence when everything is filmed.”
Police officers argue that the pager-size devices, which are more versatile and cost far less than dashboard cameras, can provide objective evidence in situations that might otherwise depend on “he said, she said” accounts. Indeed, the videotape of the police shooting in Oakland is likely to play a critical role in the investigation by the department’s internal affairs division. The department has not released the names of the victim or the officers involved in the shooting.
Video from the cameras has also been used in Oakland to evaluate citizen complaints about police behavior, said Officer Johnna Watson, a spokeswoman for the department, adding that in one case — she declined to provide the details — an officer’s video proved that a complaint was unfounded.
Some legal experts also say that the more video evidence available, the better.
“With all its ambiguities and difficulties, the photographic brave new world is better than its predecessor,” Professor Zimring said. “The kinds of mistakes you can make with it are less often and less catastrophic” than with dueling verbal renditions of what occurred.
Howard Wasserman, a First Amendment scholar at Florida International University’s law school, noted that video recordings were not free from subjective interpretation.
“Film and literary theory show that it is a myth that video evidence is an unambiguous, objective, conclusive, singular and clear reproduction of reality,” Professor Wassermanwrote in a 2009 paper on the implications of video recordings for civil rights litigation.
But he, too, said that a world where “all encounters can be recorded by everybody” is “not necessarily a bad state of affairs.”
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