Tracking Privacy Rulings: New York Finds Warrantless Use of GPS To Be Unconstitutional While Wisconsin Gives Police Unlimited Use

180px-Magellan_GPS_Blazer12In a major ruling, the New York Court of Appeals has held that the police cannot use a GPS device on a suspect’s car without a warrant — ordering a new trial for Scott Weaver, 41, a burglary suspect. In the meantime, the Wisconsin Court of Appeals came to the opposite conclusion: finding no need for a warrant in the use of GPS devices against citizens for any reason by the police.

In this 4-3 decision, the New York Court of Appeals ruled that the use of the GPS device violated the protection against unlawful searches and seizures.

A divided Court of Appeals, in a 4-3 decision, reversed the conviction of 41-year-old Scott Weaver, finding that his protection against unlawful search and seizure under the state constitution was violated. Chief Judge Jonathan Lippman wrote: “What the technology yields and records with breathtaking quality and quantity is a highly detailed profile, not simply of where we go, but by easy inference, of our associations — political, religious, amicable and amorous, to name only a few — and of the pattern of our professional and avocational pursuits.”

There has long been a race between privacy and technology with the need of the courts to periodically address new technological threats to privacy. This was the case with the Supreme Court’s eventual rejection of the “trespass doctrine” when technology developed that avoided physical trespass — leaving citizens vulnerable to warrantless surveillance. In this case, Lippman argued that “the great popularity of GPS technology for its many useful applications may not be taken simply as a massive, undifferentiated concession of personal privacy to agents of the state.”

Oregon and Washington also found required warrants under their state constitutions. These decision create a vital bulwark against intrusions since federal courts have not required warrants for such surveillance.

Wisconsin took the opposite view. While saying that it was “more than a little troubled” and asking Wisconsin lawmakers to regulate GPS use, it said that police could current use the technology without limitation — even against people who are not even suspects of a crime. Judge Paul Lundsten wrote for the unanimous three-judge panel that “police are seemingly free to secretly track anyone’s public movements with a GPS device.” The panel held that it could “discern no privacy interest protected by the Fourth Amendment that is invaded when police attach a device to the outside of a vehicle, as long as the information obtained is the same as could be gained by the use of other techniques that do not require a warrant.”

For the full story out of New York, click here.

For the Wisconsin story, click here.

16 thoughts on “Tracking Privacy Rulings: New York Finds Warrantless Use of GPS To Be Unconstitutional While Wisconsin Gives Police Unlimited Use”

  1. There is another conflicting – and positive- ruling on warrants and GPS tracking from this week:

    In what may set a Delaware precedent, a Superior Court judge has gutted a criminal case against a Newark man who was pulled over with 10 pounds of marijuana because police used a GPS tracking device without a warrant to follow him for nearly a month…

    While police have long been allowed — without a warrant — to follow suspects as they drive from place to place, Superior Court Judge Jan R. Jurden wrote earlier this month that using a GPS device is different.

    “The advance of technology will continue ad infinitum,” she wrote. “An Orwellian state is now technologically feasible. Without adequate judicial preservation of privacy, there is nothing to protect our citizens from being tracked 24/7.”

    Though police can follow a suspect in public, there are limits to how long officers can keep up the tail, whereas a GPS device never sleeps and “provides more information than one reasonably expects to be ‘exposed to the public,’ ” the judge wrote.

  2. This reminds of of the lecture I went to on the misuse of our DNA. If you thrown your cup in the trash at McDonalds it can be taken for analysis. DNA yields a lot of data. Technology is definitely outstripping our rights to privacy. There is a reasonable expectation that one’ sippy cup won’t be used to find out which baby (or adult male!) missed the toilet in McDonald’s and will that child go to Harvard if the DNA is “good” enough (or in some cases, is that child enough of a psycopath to work at the OLC after graduation)! Likewise, why do the police need to track everyone’s whereabouts? If they have reasonable suspicion let them get a warrant. I think this does infringe on freedom of association, one of our most basic rights. The courts and state/fed Congress memebers need to plug these ginormorous loopholes. Cell phones and RFID? Don’t get me started!!!

  3. I tell you what gets me…

    The constant texting that teenagers do!! We went to dinner the other night with my husbands brother and his wife and kids. Their 14 yr daughter would not pull her nose and thumbs away from the darn thing. I became annoyed with that and took her phone away and said, “Hey we never get to see you, how about we chat and catch up?” She huffed, rolled her eyes, and her mother put the phone away.

    But my favorite are the people with the bluetooths that walk around with those little things attached to their ears. They appear to be aimlessly wandering around while speaking to themselves. The insanity of it all!!

  4. Sally

    YOu wrote:


    My father in law is convinced that Big Brother can turn on your cell phone, even if you turned it off.**

    That’s funny. I sort of knew that there was something too good to be true about being able to talk on the phone regardless of where one is or what one is doing.
    It would not bother me a bit if all the cell phones on the planet just disappeared.

    I find them annoying, intrusive, unnecessary oh and did I say annoying?

    All the people on their phones. Somehow I don’t remember them all lined up at pay phones 15 years ago. Amazing how I managed to rear 4 children without one. is there something that important going on that they just can’t miss for an hour or two?

    I took up golf to get away from phones — the regular ones. During my Wednesday 18-holes I was unreachable. It was glorious to be in the middle of the city and yet in the middle of nature listening to the birds, the distant traffic on the freeway, the sound of laughter.
    Once cell phones found their way to the golf courses I took up fly fishing. I did not think that any of the folks on the river would allow cell phones and they didn’t. I had to move from that town to a place where no one fishes, sadly there is no river here; and where everyone is glued to their cell phones. I’m back on the golf course and yes, I do have to share it with the cell phone people. Doesn’t stop me from hitting away into a foursome where 3 of the 4 are on phones. I’m just a silly girl, after all.

  5. Well I need to add that it really doesn’t talk about Big Brother doing this, it’s an experiment that was done. And a very interesting one might I add!!

  6. okay

    this may be a stupid question…. does the GPS on cell phones work if the phone is turned off?

    while I dislike the idea that I can be located and followed for no apparent reason and that there are cameras in every parking lots, most light signals and mounted to just about every public building, I am still more concerned that my actual phone conversations are listened to without my knowledge or permission under the guise of national security. If I am being monitored clearly no one is having much fun at my expense. Yesterday, for instance, I went to the driving range, swam laps at the gym, returned a pair of bike shorts at Target and picked up a prescription. on my cell phone I made a doctor’s appointment, an appointment for a facial, talked with a friend about American Idol ( Yay Adam!) and listened to my mother complain about her landscaper for what seemed an eternity. I called my kid in D.C. and we chatted about her summer job and her on-again/off-again boyfriend and in between these conversations I turned my phone off.
    what bothers me way more than any of this is being frisked every time I fly.
    Yup every time. I had a hip replacement 2 years ago and my new titanium hip sets off the metal detector. They wand me and of course when they get to my left hip their wand screams, “suspected terrorist”
    so I have to stand in the glass booth, not unlike Adolph Eichmann, while they fetch a female TSA officer. I usually try to engage them in conversation, where will they be patting me down, etc. There seems to be no standard and I’ve had TSA’s touch my breasts, place their hands between my thighs all the way up to there and stroke my buttocks. I have no legal recourse for this if I want to fly and if i don’t want to be flagged as a trouble maker and be unable to fly at some future date.
    big brother isn’t only watching. he is listening and his sister is having her way with me at airports around the world.

  7. I don’t get that last part…”As long as the information obtained is the same as could be gained by the use of other techniques that do not require a warrant?”

    That really makes no sense to me…If it could be gained by other methods, then why would you hack someone’s GPS. That sounds like a pretty big loophole. Too many things in that ruling stink of bad judgement.

  8. So some states require a warrant to follow me around with various GPS devices and some states don’t – but the federal government needs no warrant to intercept all my e-mails and phone calls? It seems that “government officials” can track whomever they want, however they’re able, with or without a warrant anyway, regardless of the law. They seem to believe it’s easier to defend a court case for warrantless spying than refrain from snooping in the first place.

    Remind me not to move to Wisconsin; I’m having enough trouble trying to live a private life in Texas.

  9. Shrink the GPS chip to a grain of rice. Surgically implanting the fetus with it in the 17th week of development.

    “For Thou form my inward parts: Thou didst weave me in my mother’s womb.”
    Psalm 139:13

  10. I’m reminded of the early days of spam. Sure, some people said, it was a pain, but it was only 5% of email. Easily discarded. Critics such as myself pointed out that that was irrelevant since spam could be sent by computers without human action and it would eventually far exceed legitimate mail.


    I think the current numbers are that spam is more than 90% of all email traffic – that is, only one piece of legitimate mail for every 10 spam messages. Maybe it’s 99%. Some experts are worried that email may eventually become unusable outside of isolated corporate islands due to spam — why should companies pay real money for bandwidth and servers if the vast majority of the cost is wasted?

    I see the same thing with GPS tracking. The proponents claim it’s no different than having a cop follow you, but the key thing is that a cop is a human and hence a limited resource. The police have to prioritize their actions and the public won’t support unlimited tracking. They have more important things to do.

    GPS devices are cheap. If they can be used, there’s intense pressure to use them early-and-often because of the CYA factor. (“What do you mean that you didn’t track the suspect?”) We won’t see widespread use at first, but DNA testing shows that we will see them widely used within a decade or so. Who can protest forcing people on parole for felonies to pay for a GPS tracker? Or drunk drivers? Or people out on bail?

    Toss in the fact that, as others have pointed out, that newer cell phones have GPS built in already and it seems like a small step to require them in all cars.

  11. puzzling 1, May 14, 2009 at 7:58 am

    These rulings deal with state-owned devices installed on cars.

    What would prevent Wisconsin from eventually compelling GPS capability and tracking in cell phones? Or as a condition of registering a car?


    And you don’t think that the cars without antennas don’t have GPS tracking in them. Have you looked at the center of your license plate? Ever noticed a 3 ringed reflection in the center of your plate? don’t think that a satellite could be tracking your car. Have you tried to turn off the GPS on you cell phone since 2000? Cannot be done, do you have internet on your phone? Try turning it off. It has a Proxy Setting too. Now isn’t this just too much information that Big Brother may or may not be watching you. Scary huh.

  12. I’m sure Judge Lundsten would not appreciate the police tracking each of his movements throughout the day.

  13. These rulings deal with state-owned devices installed on cars.

    What would prevent Wisconsin from eventually compelling GPS capability and tracking in cell phones? Or as a condition of registering a car?

    Will states create laws to make detection or removal of such state-installed devices illegal?

    If devices became widely installed, would Wisconsin want to know who was attending gun shows? Political rallies? Who would this information be available to?

    GPS measures a precise location, time, and therefore speed. Could this data be used to issue automatic traffic violations to the vehicle owner?

    Many cell phones already have GPS built in. Could this Wisconsin ruling create a basis for allowing the State to pull these phone location records without a warrant?

    Massachusetts is now attempting to force New Hampshire retailers to collect sales taxes on purchases made by its residents in sales tax free New Hampshire. Could Massachusetts use cell/car GPS location records as a basis for auditing where residents are making purchases?

    Where would these intrusions end?

    They wouldn’t.

  14. I despise the alarmists who talk about how Big Brother is looking over our shoulder or the conspiracy theorists who believe the government is tracking our every move, but each day that goes by they begin looking more sane and I begin to look more crazy.

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