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

In 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.