WASHINGTON — Months after the U.S. Supreme Court ruled that the police’s use of GPS tracking devices on suspects’ cars constitutes a search for Fourth Amendment purposes, law enforcement officials, defense lawyers and lawmakers are trying to define the limits of the ruling.
While police and prosecutors say the January 2012 decision in U.S. v. Jones has hampered their efforts to track suspects and conduct criminal investigations, some lawmakers are pushing to expand the scope of the ruling to cover other electronic information, such as cell phone data.
The Jones case involved the warrantless attachment of a GPS device to a suspected drug dealer’s automobile. But in an age of increasing use of electronic tracking information from a host of other sources, the case’s reasoning may extend much more broadly, lawyers say.
“I think [Jones] spells trouble for not just GPS monitoring devices, but any electronic tracking or monitoring device, whether it requires attachment to an individual or no attachment whatsoever,” said Jeffrey T. Green, a partner in the Washington office of Sidley Austin who wrote an amicus brief in Jones on behalf of the National Association of Criminal Defense Lawyers.
The issue has gotten the attention of some lawmakers who say the current practice by local and federal law enforcement officials of obtaining and using electronic location data from cell phone carriers and vehicle security systems without a warrant amounts to an end run around the court’s decision.
In May, Sen. Al Franken, D-Minn., sent a letter to Attorney General Eric Holder asking for an explanation of how federal authorities gather and use tracking information from GPS devices and cell phones.
“I am very concerned to read recent reports suggesting that state and local law enforcement agencies may be working around the protections of Jones by requesting the location records of individuals directly from their wireless carriers instead of tracking the individuals through stand-alone GPS devices installed on their vehicles,” Franken wrote in the letter. “I was further concerned to learn that in many cases, these agencies appear to be obtaining precise records of individuals’ past and current movement from carriers without first obtaining a warrant for this information. I think that these actions may violate the spirit if not the letter of the Jones decision. I’m writing to ask you about the Department of Justice’s own practices.”
Meanwhile, lawmakers have introduced the Geolocational Privacy and Surveillance (GPS) Act, H.R. 2168, which would require police to obtain a probable cause warrant before obtaining data from GPS devices, cell phones or other electronic sources, and also prohibit private individuals from obtaining or using that information.
“The Supreme Court has laid down the broad principle that location tracking without a warrant constitutes a search under the Fourth Amendment. It is now up to Congress to enact a comprehensive statute to fill in the details,” said the bill’s sponsor, Rep. Jason Chaffetz, R-Utah, during a May 17 hearing on the legislation.
Police push back
But law enforcement officials say that Jones and its proposed legislative progeny work to tie the hands of investigators seeking to build cases against criminals, including terrorists. At the time the Jones decision came down, the FBI had about 3,000 warrantless GPS devices in use that had to be shut off to avoid running afoul of the law. Though warrants were secured for the majority of the cases, hundreds could not be reactivated.
FBI director Robert S. Mueller III, told members of the Senate Judiciary Committee this month that in order to protect the public, federal authorities need the ability to continue to obtain electronic surveillance information via court order, a lower standard than obtaining a probable cause search warrant.
“Because of [the] gap between technology and the law, law enforcement is increasingly challenged in accessing the information it needs to protect public safety and the evidence it needs to bring criminals to justice,” Mueller testified.
At the hearing on the House bill, John Ramsey, national vice president of the Federal Law Enforcement Officers Association and a special agent based in Jackson, Miss., echoed Mueller’s sentiment.
“These are not witch hunts that law enforcement officers are involved in,” Ramsey said. Cell phones and other devices “provide law enforcement with historical data as well as possible location information which becomes important when determining whether the need rises to the level of a court order or a warrant.”
One issue left unresolved by Jones is whether the use of historical data, such as information about past cell phone location and movement, requires a warrant.
Joseph I. Cassilly, a Harford County, Md., state’s attorney who testified on behalf of the National District Attorneys Association, said it shouldn’t.
Such information provides crucial clues to police investigating crimes, such as whether a suspect’s cell phone was near the location of a murder at the time it was committed.
“Even with this information the police do not have probable cause to arrest, but they at least have the ability to focus their investigation,” Cassilly said.
But Catherine Crump, a staff attorney in the New York office of the American Civil Liberties Union, said that the privacy concerns articulated by five of the nine Supreme Court justices in Jones make clear that more protection is necessary, particularly given the ubiquity of cell phone use.
“Today it is difficult to function in our society without having a cell phone,” Crump said. “I think it’s a mistake to equate the decision to carry a cell phone with the decision that you do not mind being tracked 24 hours a day, seven days a week.”
Green said he believes the ruling applies to historical data as well.
“I don’t see how obtaining that kind of historical information without a warrant is any different than actually monitoring someone,” he said.
Green said that as legislation is debated and more test cases make their way through the court system, police should err on the side of caution.
“If I were a careful lawyer for police department, I would say we are going to stop doing either cell phone or GPS tracking unless we get a warrant,” he advised.