It's been two years since an unarmed man, 25-year-old Bijan Ghaisar, was shot and killed by police in Fairfax County. Kojo sits down with Bijan's family to discuss their quest for answers.
Last week, law enforcement officers used GPS tracking to locate a woman who had been abducted in Philadelphia. The vehicle of her alleged abductor had a GPS device installed by the dealer, which the police then used to find the suspect and the victim. We explore the legal issues around when and how police can use surveillance technology like GPS, and what a 2012 Supreme Court decision means for such cases.
- Chris Calabrese Senior Policy Director, Center for Democracy and Technology
- Mark Eckenwiler Senior Counsel, Perkins Coie
MR. KOJO NNAMDILast week surveillance video showed a woman being grabbed off a street in Philadelphia and forced into a car. The police used a GPS device to track the car to a parking lot in Jessup, Md., where they rescued the woman and arrested a suspect. It's a crime story with a happy ending in which technology saved the day, but it may not be that simple, given the legal debate around police use of GPS tracking devices.
MR. KOJO NNAMDIBack in 2012 the Supreme Court took issue with a GPS device police placed on a car. So what are the rules around when and how police can use GPS to track someone? Joining us to discuss this is Chris Calabrese. He is the senior policy director at the Center for Democracy and Technology. Chris Calabrese, thank you for joining us.
MR. CHRIS CALABRESEThanks for having me.
NNAMDIAlso in studio with us is Mark Eckenwiler. He is senior counsel with the law firm Perkins Coie, where he focuses on privacy and security. Mark Eckenwiler, thank you for joining us.
MR. MARK ECKENWILERThank you, Kojo.
NNAMDIChris, first, for those who don't know about the Philly abduction case, can you remind us of the relevant details? Briefly, what do we know about events that led police to a parking lot in Jessup, Md.?
CALABRESEWell, what we know is actually probably not the whole story. But what we've sort of gleaned is essentially this woman was abducted in a terrible abduction that was caught on video. And, you know, police circulated the video of the abduction, which caught the car, which had abducted her. And other officers in -- and this happened in Philadelphia.
CALABRESEOther officers in Virginia recognized the dealership sticker and where it had come from, remembered that that dealership tended to put GPS devices on the cars -- presumably so they could repossess them if they fell behind in their payments -- contacted the dealership and then they were able to use that location information to find the car.
NNAMDILet's talk about that GPS device itself. GPS tracking devices are not standard on cars. Why did this vehicle have one in the first place?
CALABRESEWell, you know, I don't think we know 100 percent. Or we certainly don't know the details of sort of when that device is activated and whether they constantly do it. But the impression that comes from the news stories is that the purpose of the device is so that they can locate the car and repossess it in cases where, you know, the person has fallen behind on their payments.
NNAMDI800-433-8850 is our number, if you'd like to join the conversation. Do you think police should be allowed to use GPS tracking devices on cars or do you see that as a violation of privacy? 800-433-8850 or send email to firstname.lastname@example.org. Mark Eckenwiler, what legal issues does this case raise for you or first should we step back for a moment and talk about the Supreme Court case from 2012, United States v. Jones?
ECKENWILERSure. In the Jones case the FBI put a GPS tracker on a car belonging to the wife of a suspect, Antoine Jones. Although he was the one who was known to be using vehicle. Just a footnote, for that case the FBI and the U.S. attorney's office did, in fact, obtain a warrant. However, the FBI slipped up, they executed it too many days after the warrant was issued and they also did it in a different jurisdiction. So for purposes of litigation the warrant was treated as not valid.
ECKENWILERWhat the Supreme Court said in Jones was that -- and this really was a new kind of Fourth Amendment test articulate in Justice Scalia's majority opinion -- that when you put together the physical trespass, the touching of the car and the installation of the device on it, for the purpose of obtaining information that constituted a Fourth Amendment search. But the Court left open a whole series of other questions, including whether or not a warrant would be required, whether that varied depending on how long the monitoring continued and so on.
NNAMDIThe Jones case, Supreme Court case, and this Philly case possibly as well, raised something known as the Third Party Doctrine. What is that and why should we be looking at it?
ECKENWILERThe Third Party Doctrine is a long-standing doctrine in American jurisprudence. The Supreme Court has said in a series of cases that if you voluntarily give records to another entity -- the Supreme Court cases have involved telephone companies and banks, most obviously -- that you no longer have any Fourth Amendment interest in that information when the government obtains it from that third party. So the government can subpoena your bank records. They don't need to get a warrant to obtain those kinds of records.
ECKENWILERThe Third Party Doctrine has come under increasing attack in recent years. Certainly we can look at Justice Sotomayor's concurrence in the Jones case, where she said she believes that it needs, in effect, a wholesale rethinking.
NNAMDIIn the Philly case, as we said, the GPS device was already installed on the car by the dealer. Does that, Mark, make a difference?
ECKENWILERThat may very well make a big difference. To set this up, first of all, we don't know all the facts. Presumably they didn't disclose to the defendant, who was the purchaser of the car, that they were doing this. But it might make a difference if this was a rent-to-own circumstance, if the owners -- or the dealer, excuse me, still owned the vehicle, as opposed to selling it with a right to repossess if payments weren't issued.
ECKENWILERThe one thing we can say is the physical trespass here was not one performed by the government or at the government's direction. It took place before the government was ever involved with the dealer, with respect to this car. And so it's not a search -- at least not under the Jones test. And I think that illustrates the narrowness of what comes out of the Supreme Court's decision in 2012 and the number of questions that are still unresolved in the wake of that decision.
NNAMDIWell, let's complicate it a bit more, because the physical trespass had already taken place with the dealer installing the GPS device. But the police asked the dealer to switch on the GPS tracking. Is that relevant detail?
ECKENWILERI think it would be very relevant whether or not the device was already on or whether -- as some of the reports have suggested -- the dealer activated it. If the device was already on and the dealer already had the information about the car's location, then this is just a Third Party Doctrine case. And under at least the existing precedence, they ear free to give that to the police if they want to. The police are free to compel it with a subpoena. No warrant required, at least as a matter of federal constitutional law.
NNAMDI800-433-8850. We're talking about GPS tracking and law enforcement with Mark Eckenwiler, senior counsel with the law firm Perkins Coie, where he focuses on privacy and security. And Chris Calabrese, who is the senior policy director at the Center for Democracy and Technology. Do you think new technology is getting ahead of laws that would prevent abuse? Are you concerned about government surveillance violating your privacy?
NNAMDIGive us a call, 800-433-8850. You can shoot us an email to email@example.com or a tweet, @kojoshow. Mark, you can have lawfully performed searches without a warrant. In this case, time was of the essence and a woman's life was likely in danger. Does that also make a difference?
ECKENWILERIt does indeed. There's a doctrine in Fourth Amendment law known as exigent circumstances. So if a house is on fire, if an armed fugitive has just run into a resident's house, the police can enter. They don't need to stop, write up an affidavit to go to a neutral and detached magistrate and get a warrant because, obviously, there's a risk of serious bodily injury, maybe even death. And that doctrine I'm sure will be invoked in this case, as it plays out, as we see the motion practice as the criminal prosecution goes forward.
ECKENWILERBut the interesting thing about the exigent circumstances doctrine is that it has to have a limitation. You can't rely on it -- so if the police had, you know, exigent circumstances to track a vehicle, that's fine for the first two hours, maybe six hours -- and I think there's sort of a gray area, not a bright line -- but I think what's clear is exigent circumstances will not allow you to start tracking a car and then track it for four weeks, as was done in the Jones case. Because that's more than enough time to go to a judge and get a warrant.
NNAMDIChris Calabrese, how about transparency? We got an email from Sue, in Alexandria, who says, "I recently bought a used car. How would I know if there's GPS device installed in it? Does the dealer have to let you know that they are doing this?" Chris, should someone be informed if a GPS device has been placed on a car?
CALABRESEI think the simple answer is yes. They should. Whether they do or not is very much an open question. You know, there is very clear law on, for example, whether someone can listen to you without your permission. The Federal Wiretap Act is very clear that they can. We don't have an equivalent federal law around GPS devices that controls whether someone can track your location or not. So, you know, it just highlights the incredible, both invasiveness and ubiquity of location tracking at this point in our society.
CALABRESEWe have more and more devices, starting with our cellphone, that track where we're going all the time. And this information is incredibly revealing, but yet we don't have clear rules about when that tracking can happen and under what circumstances.
NNAMDIIs this how the digital age is affecting some of these Fourth Amendment questions around information?
CALABRESEIt really is. One of the complexities of the Jones case is -- Mark is absolutely right about what the majority said. But there was sort of strange second majority opinion in that Jones case. It was a unanimous case. And five judges agreed that, you know, violating the car and putting this device on it was what caused the Fourth Amendment search, but five justices also agreed -- four in a concurrence and one in a separate concurrence -- that it would also have been a Fourth Amendment violation just to track the person for 28 days, whether or not it involved putting something on the car.
CALABRESESo the Court is clearly grappling with this idea that tracking someone for long periods of time, sort of mass surveillance, is also a potential violation of the Constitution. And I think that's one of the interesting things that this case raises, is just the tracking -- even if it wasn't as part of, you know, putting something on the car -- raises a Fourth Amendment question.
NNAMDIGot to take a short break. When we come back we'll continue our conversation on GPS tracking and law enforcement. If you have questions or comments for us, give us a call at 800-433-8850. Do you think police should be allowed to use GPS tracking devices on cars or is that a violation of privacy? 800-433-8850. You can go to our website, kojoshow.org, ask a question or make a comment there or send us an email to firstname.lastname@example.org. I'm Kojo Nnamdi.
NNAMDIWe're talking about GPS tracking and law enforcement with Mark Eckenwiler, senior counsel with the law firm Perkins and Coie, and Chris Calabrese, who is the senior policy director at the Center for Democracy and Technology. Taking your calls at 800-433-8850 or email to email@example.com. Mark, just to help people understand what the Fourth Amendment in a case like this. How does a reasonable expectation of privacy apply to a vehicle as opposed to, say, a home?
ECKENWILERThat's a great question, Kojo. The Supreme Court has, in fact, explained that distinction. There is a set of cases, pair of cases 30-some years ago. They were the only tracking device cases the court have decided prior to Jones in which they found that where the tracking was of a car -- there was no trespass in this case because the tracker was given to a drug dealer in a can of chemicals.
ECKENWILERSo, at the time, it was installed. It was installed with the complicity of the vendor. It wasn't a trespass onto the car itself. The court said as long as you're just following the car in the public roadways where anybody could see them, then there's no Fourth Amendment search and no issue. But in the second case, prophetically in the year 1984, a case called Karo, the Supreme Court said, however, if you track exactly the same kind of canister of chemicals and you learn about its presence inside a house, you learn about the interior of a private space -- of course, the home is, you know, the apex of Fourth Amendment protections -- that you would not otherwise learn about through external observations, then that is a Fourth Amendment search.
ECKENWILERSo, there is, in fact, a big distinction between public facts and private facts, at least in the case law that existed prior to Jones. The suggestion, as Chris had mentioned, we have the two concurrences in Jones that suggests a rethinking of that doctrine, at least where the duration of the surveillance is prolonged.
NNAMDITalking about information held by a third party. We got an email from Cara in D.C. who says, "I think police should be able to use all technology and tools possible. But I don't agree with the government looking at phone records. To me, there's a difference between mass surveillance and police working on a specific case." Chris, talk about that. The debate over the government can collect phone records in the name of national security and this issue of information being held by a third party like the dealer who has access to the GPS on your car. Are these issues related?
CALABRESEOh, absolutely. And I think that's a very powerful distinction. We've always understood that police can investigate specific people for specific wrongdoing. Much of the debate has been around mass surveillance. The fact is that today we live in a world of records. Everything we do generates records. Our phone calls do, where our cell phone does, when we get off the Metro, we generate a record.
CALABRESESo if there's going to be no limitation on how those records are used, we'll very quickly be in a place where we'll have almost no privacy in public and a rapid erosion of privacy even in our own home. So there has to be a line. And I think starting at a line of individual suspicion, constitutional protections and warrant requirements is a good place to go.
NNAMDIMark Eckenwiler, same question.
CALABRESESo, I agree with Chris that this is an area where there has been enormous ferment. Just to look at individual case investigations, we've seen a number of courts raise the bar for, for instance, government access to email. There's a statute, there was an act in 1986, the Electronic Communications Privacy Act, fairly complicated law. And one of the ins and outs of it is that on the face of that law, the government can compel stored communication. So the contents of your webmail account with less than a warrant in certain circumstances.
ECKENWILERThat's what the statute says on its face. We have a comparatively recent federal appeals court opinion saying, no, even though that's in the hands of a third party, because it is a reasonable expectation of privacy attached to it and because you haven't really disclosed the contents of your email to your service provider in the same do you disclose phone numbers when you place a telephone call that the government should have to get a warrant in order to compel that content.
NNAMDIOn to the telephones. Here is Jeff in Philadelphia, PA. Jeff, you're on the air, go ahead please.
JEFFYeah. I provide GPS tracking services and my clients might be a landscape company and they put the (unintelligible) parts that pertains to their employees' right to privacy. These with the company-owned vehicles. They put the tracking devices in these vehicles. Could an employee, I don't know, come up, you know, take their employee to task for violating their own privacy if the company is tracking their own vehicles?
NNAMDICompanies tracking its own vehicles, but the employee who is driving that vehicle feels that that may be a violation of his privacy. Mark?
ECKENWILERSo, to begin with, it doesn't have any constitutional implications if the employer is not a government agency. The Fourth Amendment only protects against government searches and seizures. And there are a number of cases in which I can think of one, it was a case out of Minnesota from about three or four years ago in which an employee was, in fact, using a company owned truck to go out and commit burglaries during the day.
ECKENWILERAnd the government obtained the location information from the employer. A conviction followed and the defendant lost his appeal. I think rightly so under existing law because this wasn't his property. That said, the Fourth Amendment really sets a floor for how we behave as a society. And I think if I were advising a client -- if that landscaping company were paying me to advice them, I think my advice might be it's really better just to get it all out there.
ECKENWILERIf you really want to shape behavior, then tell people upfront or perhaps put conditions. You know, you only use this vehicle for, you know, workplace related things. You know, I'm not going to let you take it home at night for personal reason. So you can draw a clear dividing line there. And, you know, that way the individual employee gets to make an informed decision about what they do and where they go and what information they disclose.
CALABRESEAnd also, if they are going to let them, you know, take the -- the vehicle home, they should recognize that that's different than what they're doing at work and they should either give them the option to turn it off or not record the information. Again, I think it's transparency but it's also differentiating between what happens at work and what happens in your private life.
NNAMDIThank you very much for your call, Jeff. Chris, a related privacy and technology debate. Talk a little bit about the device known as Sting Ray and how that fits into this discussion.
CALABRESEWell, this is really a contentious and interesting subject. I mean, a Sting Ray is basically a portable cell tower that police can use to essentially activate and, in some cases, take over cell phones in a particular area. So I could carry this device around, for example, from door to door in an apartment building looking for a particular cell phone. I'd never have to knock on the door, I could simply trigger the cell phones and figure out where someone is without actually entering the house.
CALABRESEYou can imagine how invasive it is and there's a great deal of discussion now about how these devices should be regulated. There's also, of course, concerns beyond police to foreign actors or spies or, you know, commercial espionage. There's real concerns about privacy invasions because these devices are largely unregulated.
NNAMDILocation can be a very revealing piece of information. obviously. And so, technology and the privacy issues they raise are today being often found around mobile devices.
CALABRESEThat's right. You know, technology -- the information that we glean from our cell phones is just astonishing, where you go to church, where you go to school, whether you went to the bar instead of going to school. I mean, embarrassing information, your doctor, whether you're at a protest rally. It's just incredibly rich information and it's not just where you are now but a historical record of where you've been.
NNAMDIOn the other hand, there is this usage. Here is Robert in Washington, D.C. Robert, you're on the air, go ahead please.
ROBERTYes. Yeah, thank you very much. We live in Bonita Springs, FL. We were visiting our sons here about three years ago and I was robbed at gunpoint. And luckily, I'm okay. I was okay. But the robber got away with, you know, possession and in there was my iPhone. And when they came to investigate, asked that I leave the service on the phone since I had GPS tracking. And within 16 hours, the individual was caught, apprehended. My stuff was recovered. He was tried, convicted and sentenced and is now spending 10 years in jail for armed robbery. So, I'm a...
NNAMDIAll because of the GPS tracking device on your iPhone?
ROBERTAbsolutely. I'm absolutely in favor of the letting law enforcement have access to that. It is -- in my particular case, in less than 16 hours, the individual -- and everything was returned. So I'm very much in favor of.
NNAMDIAnd Mark Eckenwiler?
ECKENWILERSo, the key here, Kojo, in Robert's scenario is that the phone belonged to him and he was the person who gave the consent to track his own property. The robber have no lawful possessory interest, that's the way lawyers would describe this. And so, it has no Fourth Amendment claim about the tracking of that object because not only is not the owner, he is a wrongful possessor. And we see this come up in a whole series of scenarios.
ECKENWILERThere's, you know, the most obvious one is somebody robs a bank and the teller passes them a packet of what's called bait money. It's got a tracker in it. Well, when the robber gets tracked down, he really has no grounds for constitutional complaint. And interestingly enough, when Justice Alito was with the Office of Legal Counsel at the Department of Justice, he wrote a memorandum on precisely this question, about whether or not a bank robber would be able to raise a Fourth Amendment claim against tracking bait money.
ECKENWILERAnd Justice Alito concluded, and I think the status one case law has adopted the same view, that no, he actually does not because he doesn't have constitutional standing.
CALABRESEAnd, you know, the other thing this raises -- and I just want to clarify, I don't think these things are in opposition. It's not a question of should law enforcement be able to do this or have no access to it. By and large, we just we just want the rules to be consistent and appropriate, you know, constitutional standards. And it really highlights the fact that a lot of these tools give police more tools than they had 20 years ago.
CALABRESEThey have more ways to solve crimes. So it's appropriate that we regulate them, recognizing that, in fact, there's more information out there than there used to be.
NNAMDIChris, you say, if we want to understand the future of surveillance, we should look at poor communities today. What do you mean by that?
CALABRESEWell, I think you can just start with the case at hand. Certainly, it had a good result here. I mean, no one is going to dispute that this was a wonderful result. But the fact is, I think, most people would be a little unhappy if they thought their car dealer was tracking them around all the time. That's true even if you're in a rent to own situation and you may be can't afford to buy your car out right. You shouldn't end up in the circumstance where you have less privacy simply because of how much money you have.
NNAMDIBecause in this situation, it has been reported that some car dealerships do this to people who have lower credit ratings.
NNAMDIAnd not to the general buying population.
CALABRESEThat's exactly right.
NNAMDIMark, civil forfeitures in the news a lot lately. Can you remind us what that is and how it relates to what we've been talking about?
ECKENWILERWell, civil forfeiture is basically a set of laws that allow the government to claim title to money or other property that supposedly stems from wrongdoing. Probably a classic example would be drug money proceeds. The key here is that for similar forfeiture, as I say, the showing is very, very low, the government doesn't have to prove beyond a reasonable doubt that anybody has committed a crime, they just have to show, in most cases, mere probably cause that the property is derived from illegal proceeds.
ECKENWILERThe way I think that this ties in, so much of the tracking that goes on has to do with vehicle tracking. And, you know, the vast majority of these cases, just as we see in the wiretap context, the overwhelming majority of federal wiretaps are for narcotics investigations. Somebody gets tracked, a car gets pulled over and lo and behold, there's a bunch of money and maybe some narcotics in the car. And that means that the government claims that property, initiates a forfeiture proceeding.
NNAMDIWe're running out of time. But that's being challenged right now.
NNAMDII'm afraid that's all the time we have. Mark Eckenwiler is senior counsel with the law firm Perkins and Coie, where he focuses on privacy and security. Mark, thank you for joining us.
NNAMDIChris Calabrese is the senior policy director at the Center for Democracy and Technology. Chris, good to see you again.
NNAMDIAnd you all for listening. I'm Kojo Nnamdi.
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