The Constitutionality of Zero Marginal Cost Surveillance: A Study of Recent GPS Tracking Decisions

-- By StephenClarke - 16 Mar 2010

Since the Supreme Court decided United States v. Knotts, 460 U.S. 276 (1983), 4th Amendment doctrine has done little to police what locational information the government may obtain about an individual without a warrant. See United States v. Karo, 468 U.S. 705, 714, 720-21 (1984) (holding that electronic tracking constitutes a search only when the tracked object is inside a location where an individual has a reasonable expectation of privacy). Recognizing that GPS technology can obliterate the zone of privacy that was once maintained by resource constraints, courts have started to grapple with the concept of zero marginal cost tracking and surveillance. Though many courts have applied Knotts to uphold warrantless GPS tracking, some state courts have rejected and Knotts and developed theories under which the GPS tracking constitutes either a search or a seizure sufficient to trigger a warrant requirement. Each of these three theories is superior to the Knotts approach, but only one credibly reformulates 4th Amendment doctrine to account for modern technological conditions.

Knotts can be applied to hold that any type of GPS tracking does not constitute a search because it rests on two simple premises. First, a person has no reasonable expectation of privacy regarding locational information that could be discovered by “anyone who want[s] to look.” Id. at 281. Second, nothing in the Constitution prohibits the police from “augmenting” their “sensory facilities” using new technology to improve investigative efficiency. Id. at 282-83. Under this logic, it follows that no search occurs when law enforcement officers attach a GPS tracking device to a car or ask a cell phone service provider to send a signal to a cell phone in order to locate it using its built in GPS. E.g., United States v. Pineda-Moreno, No. 08-30385, 2010 U.S. App. LEXIS 625, at *11-*12 (9th Cir. 2010) (GPS device); United Statse v. Garcia, 474 F.3d 994, 996-99 (7th Cir. 2007) (same); Devega v. State, S09A2064? , 2010 Ga. LEXIS 107, at *12-*14 (Ga. Feb. 1, 2010) (cell phone “ping”); Stone v. State, 941 A.2d 1238, 1250 (Md. Ct. Spec. App. 2008) (same). Contra In re United States, 534 F. Supp. 2d 585, 613 (W.D. Pa. 2008).

The logic of Knotts is, however, dangerous because it contains no limiting principle. Courts applying Knotts to GPS technology have acknowledged this fact and taken note of how GPS technology has made arbitrary mass surveillance feasible. See, e.g., Garcia, 474 F.3d 997 (“One can imagine the police affixing GPS tracking devices to thousands of cars at random . . . ”) Like the Court in Knotts, these courts have stated that they know a police state when they see one and that the Fourth Amendment may stand ready to protect the masses against mass surveillance despite the fact that it does not protect the individual from total locational surveillance. See Knotts, 460 U.S. at 283-84; Peneda-Moreno, 2010 U.S. App. LEXIS 625, at *12 n.3; Garcia, 474 F.3d at 998.

Instead of placing faith in law enforcement’s sense of restraint or a sniff test for totalitarianism, the highest courts of both New York and Oregon have held that locational tracking can constitute a search. Rejecting the standard used to identify privacy interests protected by the 4th Amendment, the Supreme Court of Oregon started with premise that the privacy protected by the Oregon state constitution “is not the privacy one reasonably expects but the privacy to which one has a right.” State v. Campbell, 759 P.2d 1040, 1044 (Ore. 1988). It then held that radio assisted locational tracking constituted a search because it was a new kind of accurate surreptitious observation that impaired freedom by creating a constant “threat of scrutiny.” Id. at 1048-49. Though Campbell was well reasoned, it is not strongly persuasive authority in states that have adopted the federal reasonable expectation of privacy analysis. Compare State v. Bradley, 76 P.3d 217, 223-24 (Wash. 2003) (following Campbell based similar principles of constitutional interpretation), with Osburn v. State, 44 P.3d 523, 526 (Nev. 2002) (rejecting Campbell and following McIver).

Nevertheless, the New York Court of Appeals has demonstrated that reasonable expectation analysis is not incompatible with the idea that GPS tracking constitutes a search. People v. Weaver, 909 N.E.2d 1195, 1201-03 (N.Y. 2009). In Weaver, the court recognized that modern communications technology had “re-situated transactions of all kinds into relatively public spaces,” but people still expected matters to “remain to a large extent private.” Id. at 443. The court found that a “perhaps small” expectation of privacy with respect to locational information was sufficient to trigger the warrant requirement embodied in the New York State constitution given the “massive invasion of privacy entailed by the prolonged use of [a] GPS device.” Id. at 1201. Rejecting the applicability of Knotts, the court found that GPS tracking amounted to something more than sensory enhancement because it “facilitates a new technological perception of the world” by enabling law enforcement officers to cheaply generate a record sufficient to learn about every facet of a person’s life “by easy inference.” Id. at 1199, 1203.

Because it establishes a broader precedent that takes full account of modern technological conditions, the New York Court of Appeals approach is superior to the approach that the Supreme Judicial Court of Massachusetts adopted when it held that tracking a car with a surreptitiously installed GPS device constituted a seizure. In Commonwealth v. Connolly, the court concluded that tracking constituted a seizure of the defendant’s vehicle because it involved the use of the defendant’s private property to obtain information about him without his knowledge or consent. Connolly, 913 N.E.2d at 369-70. In effect, the court concluded that GPS tracking was tantamount to electronic trespassing. See Id. at 370 n.14. Even though the court’s reasoning may be straightforward enough to prove persuasive, it is imperfect because it undervalues the interests at stake by recasting a matter of personal privacy in terms of personal property.