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Search of GPS for wanted suspect would violate privacy, federal judge says

New technology runs into old laws

By Peter Hermann, The Baltimore Sun

August 15, 2011

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As rapidly evolving technological advances allow people to be tracked by global positioning devices found in most new cellphones, Congress and courthouses nationwide are trying to balance privacy rights with the needs of law enforcement to locate criminals.

Maryland U.S. District Judge Susan K. Gauvey recently refused to issue a warrant sought by federal authorities to find a suspect through his cellphone's GPS data, saying the government was trying to use technology in a new way — "not to collect evidence of a crime, but solely to locate a charged defendant."

Nearly three dozen ACLU affiliates around the country filed public information requests this month with local police agencies seeking statistics on how often GPS data is sought, how it's used and how it's stored.

Congress, meanwhile, has held hearings on cellphone technology and privacy, acknowledging that existing law hasn't kept up with issues raised by the proliferation of smartphones and other devices capable of keeping real-time tabs on their owners.

"For investigators, the cellphone has become one of the greatest tools available," said Douglas Ward, director of the Division of Public Safety Leadership in the Johns Hopkins University School of Education.

"But certainly we want to do this the right way and protect people's rights," he added. "This technology is going to cause more and more of these arguments, and the courts are going to have to settle how it all turns out. Like anything else, there can be abuses. Justice demands that we weigh that."

So far courts have come to conflicting conclusions. A federal appeals court overturned a conviction of a Washington man based on a warrantless GPS search, while appellate courts in California and Oregon upheld convictions in their states. The U.S Supreme Court is scheduled to take up the issue in its next term — addressing whether police can place GPS devices on cars to track suspects without obtaining warrants.

In Baltimore's federal court, Gauvey conceded in a 139-page ruling that "to some, this use would appear reasonable, even commendable and efficient." But, the judge wrote, "To others, this use of location data by law enforcement would appear chillingly invasive and unnecessary in the apprehension of defendants."

The American Civil Liberties Union questions how the GPS data is being used by police. The group said last week that police in Michigan sought information for every mobile phone near a planned labor protest, and that Sprint, in just over a year, received 8 million requests from police for global positioning data. The Maryland ACLU chapter is not among those filing information requests.

The proliferation of this new technology has made it easier for police to go after suspected criminals. Detectives frequently track stolen cellphones to thieves who foolishly use them to call friends and relatives. Now, thieves can be tracked without even making a call.

"The ability to track the location of cellphones has become almost routine," said Ward, a retired 27-year veteran of the Maryland State Police. "To have that threatened in any way is going to make policing much less efficient."

In the Baltimore case, federal agents hunting an elusive suspect had a tantalizing bit of intelligence: his cell number. The phone was equipped with a GPS device, so even if police had no idea where the man was, his phone company did.

They could nearly track his every step.

Federal prosecutors thought it would lead to a quick arrest. But what seemed to authorities a reasonable request was to a judge an intrusion into the suspect's privacy.

Gauvey wrote that turning down the government's request "does not frustrate or impede law enforcement's important efforts, but rather places them within the Constitutional and statutory framework which balances citizens' rights of privacy against government's protection of society."

The judge wrote, however, that her ruling "does place the precise location information out of the government's casual reach."

James Wyda, the federal public defender for Maryland, argued in legal briefs that a necessary ingredient for a search warrant is proving "a fair probability that contraband or evidence of a crime will be found in a particular place. … In this case, the government did not claim that the cellular site information it sought … was evidence of a crime."

This is where existing laws have failed to keep pace with technology. Typically, search warrants target documents that already exist, called "stored information," according to the legal brief. In seeking GPS data, prosecutors are seeking documents that have not yet been created — where a person will be in the future.

Details of the Baltimore case, including the suspect's name and the crimes he is charged with, remain secret. The search warrant applications are sealed by the court, and Maryland U.S. Attorney Rod J. Rosenstein declined to provide more information.

However, authorities were in fact able to track down and arrest the suspect without using the GPS information.

Rosenstein called the circumstances unique. "We have never needed such an order in any case before or since, as far as I know, so there is little reason to appeal the moot opinion," he said in a statement.

Rosenstein said "the Justice Department is not proposing to use GPS to track random citizens. The person sought in this case was a felony criminal defendant for whom authorities had an arrest warrant. … Because of the circumstances of the case … they were concerned that he would flee if they called to ask him to turn himself in."

But Gauvey wrote that the suspect had no idea a warrant had been issued. The judge repeatedly noted in her ruling that "the government has reported no attempts of the subject to flee" and she questioned authorities for labeling the man a "fugitive" — saying that implies he had been a convicted felon, rather than a person accused of an unproven offense.

The judge did write that had there been evidence of a risk of flight, the request for the warrant "would have been fairly routine."

During a hearing in U.S. District Court in Baltimore, Nathan S. Judish, a senior counsel in the computer crimes and intellectual property division within the U.S. Department of Justice, sparred with the judge over how GPS data could be obtained.

"I think we are entitled to take reasonable steps to effectuate an arrest warrant and determine the location of the person subject to the arrest warrant," Judish argued, according to a transcript of the proceeding. "It seems to me extremely reasonable. We need to go where the person is and arrest them."

Gauvey countered, saying it was "highly likely" that the government would track the suspect inside his home, where he has an expectation of privacy, as much as they would track him on a public street, where he has no expectation of privacy.

The judge said the suspect has a right to privacy not only "in his location," but also "in his movement."

Judish said a suspect wanted on a warrant enjoys less privacy than others. But Gauvey disagreed. "I don't know any authority that says that," she said.

The judge also noted that GPS devices can pinpoint a person within 10 square meters, and that the average house size is 743 square meters. She cited studies showing that 65 percent of people sleep with their cellphones next to them. She questioned prosecutors wanting "unlimited location data at any time on demand during a 30-day period."

Ward, the Johns Hopkins police expert, said that warrants seeking access to GPS data cannot define the parameters and scope of the request, and ask for permission to spy on people in places and in settings not yet known.

That, he said, makes some judges uneasy.

"Warrants involving GPS allow police to develop patterns," Ward said. "It's not only who they're calling and what they're saying, but where they're going."

peter.hermann@baltsun.com

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