Monday, September 26, 2011

Debate over GPS devices on suspects' cars spurs 'Big Brother' concerns

Mercury News
Thomas Peele

A legal case with implications that some say spring straight from the pages of George Orwell's "1984" is headed to the Supreme Court in November, and its outcome could have a major impact on one of the Bay Area's biggest murder cases in the past decade.

Justices are being asked to decide whether law enforcement officers need a warrant to hide GPS devices on suspects' cars to track their movements using satellites and computers.

The case pits constitutional rights of privacy and protection from unfair police tactics against high-tech government surveillance. It has already drawn analogies to the "Big Brother"-type government intrusion Orwell envisioned in his novel.

Critics of the warrantless tracking say that without checks, police could routinely monitor everyone's location, all the time. Others say police are already free to conduct surveillance by simply following people around, and there is no legal difference between trailing someone by car or on foot and using technology to, in effect, do the same thing.

"We don't have a reasonable expectation of privacy when we are out on public streets," said Anthony Barkow, director of the Center for the Administration of Criminal Law at New York University Law School. "Police can do it without technology. This (case) is just sexier because it is high tech."

Earlier this year, evidence from a tracking device installed without a warrant on a car belonging to Yusuf Bey IV, the former leader of Oakland's Your Black Muslin Bakery, helped convict him and another man in the 2007 murder of journalist Chauncey Bailey. Bey IV's lawyer argued the tracking data was obtained illegally, but a judge ruled otherwise.

If the Supreme Court rules that installing a tracker without a warrant violates the Fourth Amendment protection against unfair searches and seizures, the convictions of Bey IV and his co-defendant Antoine Mackey could be thrown out and a new trial ordered on Bailey's murder, legal experts said.

Two other murder convictions against Bey IV and one against Mackey would not be affected.
The case headed for the Supreme Court, U.S. vs. Jones, has already been cited in Bey IV's preliminary appeal documents, said Gene Peretti, who represented Bey IV at trial.

"All the police have to do is get a warrant. What's the big deal?" Peretti said.

The prosecutor in the Bailey case, Alameda County deputy district attorney Melissa Krum, declined to comment, saying she would wait for the Supreme Court ruling, which is expected next year.

In the case headed for the high court, a federal judge signed a warrant allowing a GPS tracker to be placed on the car of Antoine Jones, a suspected drug dealer who was later convicted of selling cocaine and sentenced to life in prison based, in part, on evidence of his movements obtained by the device. But the warrant had expired before the device was installed. U.S. Justice Department lawyers argued no warrant was really needed. An appeals court overturned Jones' conviction and the government appealed to the Supreme Court.

In the Bey IV case, Judge Thomas Reardon said he saw no real difference between police following a car around or tracking it by sitting at a desk staring at a computer.

Police investigating Bey IV's alleged involvement in the kidnapping of two women hid the device on his car while he was at a Vallejo courthouse for an unrelated hearing. The GPS was still active more than a month later when data showed the car parked outside Bailey's apartment less than seven hours before his Aug. 2, 2007, slaying and then driving past the killing scene less than hour after the shooting.

The GPS data was a key part of the prosecution's evidence against Bey IV.

The legal questions before the justices in the Jones case are "tricky," said Stanford Law School professor Jeffrey Fisher. "It's such a novel issue."

Among the issues to be considered, he said, is whether placing a tracking device on a car can be considered either a search or a seizure of property. Justices, he said, may view the case more as a privacy issue.

In the Jones case, federal appeals court Judge Douglas Ginsburg wrote that the prolonged electronic surveillance is a violation of the right to privacy because it tells "what a person does repeatedly."
He wrote, "The sequence of a person's movements can reveal still more -- a single trip to the gynecologist's office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story."

The Jones case has important consequences for Americans, said Jay Stanley, an ACLU analyst who monitors the intersection of privacy and technology.

If the police don't need a judge's approval to plant a tracking device on a car, will they soon not need it to track people by the GPS devices in smartphones?

"If you told people in 1978 that in 2011 everyone would be carrying a device that lets them be tracked, people would have said, 'Oh my God, we lost the Cold War to the Soviet Union,' " he said.

As GPS devices become less expensive, a ruling upholding warrantless tracking could signal few limits to use by law enforcement unless "they go through the ancient process of getting a warrant."
As technology improves and gets cheaper, Stanley said he can see an age when police, at least theoretically, could use GPS devices routinely, creating the type of Big Brother monitoring about which Orwell wrote.

"Technologically, there is no limit," he said. "They can put them on every car."

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