Out in Front: When the Gavel Comes Down

By Alan Cameron

Perhaps you don’t track suspected criminals in your spare time, nor do you design or supply a GNSS product that does so. Still, the fresh Supreme Court ruling on GPS use for this purpose reverberates for you, in ways yet unknown. The most interesting part of the court’s ruling pops up in a somewhat open-ended “what if” comment concerning future issues that at least one justice thinks the court should address.

GPS trackers are a form of search, and police must obtain a search warrant to use them, the court unanimously ruled. This comes as a setback to government and police agencies who increasingly rely on GPS surveillance. Justice Scalia said the government’s installation of a GPS device to monitor a vehicle’s movements constitutes a search and violates the Fourth Amendment’s protection against unreasonable search and seizure.

Justice Samuel Alito further said the court 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. “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 wrote.

This, or its exact counterpart, has already occurred in cell phones: government-mandated location technology embedded in all devices, over a sliding timescale that comes to maturity, or full application, fairly soon.

The words “no protection” in Justice Alito’s opinion appear to state that personal cell-phone records are open season to government investigators. Such has already been the case in a number of instances.

Murkier than government use — if such a concept is conceivable — is commercial use of a consumer’s location data. In other words, privacy. This issue has been raised since GPS-enabled phones were first theorized, and since the very whisper of the first location-based service, but it has never been fully or adequately addressed by anyone in industry or government.The notion of “granting permission” to use one’s location data, in order to benefit from services thus provided, still seems unresolved to me.

Presumably, we are all waiting around for a test case, such as that of the Jeep owner in the Supreme Court just now. With LBS poised — same as it ever was — on the brink of widespread acceptance, it might benefit everyone if such a case came sooner rather than later.