There is increasing evidence that US police forces are now using GPS tracking devices regularly and with impunity. Following court rulings at different levels which have left the legal situation unclear with only the Supreme Court left (this coming week), police forces across the country have been slapping GPS trackers on thousands of private vehicles, without warrants, and until recently, without the knowledge of those being tracked.
However, Wired‘s Threat Level blog has been reporting on the growing numbers of cases of Americans who have discovered GPS trackers on their cars, and in one particularly bizarre case, a device that was replaced by undercover officers while the Wired reporters were in the vicinity, having just removed and photographed the original device!
There are many pictures and manufacturers’ detail on Threat Level. Here are a couple…
GPS tracker in place:
GPS tracker disassembled showing souped-up longlife battery, including manufacturer’s details:
One of the more perplexing things about the use of these devices is what recourse the US citizen has when they discover them. If they are placed ‘legally’, do you have the right to remove or indeed to disassemble them? What would be done if they are removed? The experience of Wired would suggest that the device would be replaced, but how many times could this go on? At what point would the state take some kind of legal action to attempt to prevent the removal of a device? In the case of location tracking devices that are known about but unable to be legally removed, surely you have a situation that becomes equivalent not to simple (if it is even simple) unwarranted surveillance, but to electronic tagging.
The complex landscape of the US judicial system has thrown up a ruling on the police use of GPS tracking devices completely at odds with the recent ruling handed down by the appeals court in Wisconsin. The New York appeals court ruled 4-3 that police GPS tracking should require a warrant. Judge Lipmann’s words on the case, quoted by the New York Times, are particularly interesting as it appears that he wa taking a long view of potential harm in making his decision. He said:
“One need only consider what the police may learn, practically effortlessly, from planting a single device. The whole of a person’s progress through the world, into both public and private spatial spheres, can be charted and recorded over lengthy periods possibly limited only by the need to change the transmitting unit’s batteries. Disclosed in the data retrieved from the transmitting unit, nearly instantaneously with the press of a button on the highly portable receiving unit, will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on. What the technology yields and records with breathtaking quality and quantity, is a highly detailed profile, not simply of where we go, but by easy inference, of our associations — political, religious, amicable and amorous, to name only a few — and of the pattern of our professional and avocational pursuits. When multiple GPS devices are utilized, even more precisely resolved inferences about our activities are possible. And, with GPS becoming an increasingly routine feature in cars and cell phones, it will be possible to tell from the technology with ever increasing precision who we are and are not with, when we are and are not with them, and what we do and do not carry on our persons — to mention just a few of the highly feasible empirical configurations.”
This long term thinking has to be applauded. Sometimes imagination is necessary in the law, and particularly when the issue is one of socio-technical changes. The technological determinism of ‘if it exists, then it must be used’ is a way of thinking that has to be challenged. The question now for the USA is if either of these case or others will find their way to the federal courts. Until then, US citizens and police do not really know where they stand and the constitutional questions remain open.
CNET’s ‘Technically Incorrect’ blog leads me to a rather disturbing story in the Chicago Tribune last week about a ruling from a court in Wisconsin, USA. The judges in the appeal court decided that police use of covert GPS tracking devices is equivalent to the naked eye and therefore is not covered by US constitutional prohibitions (in the 4th amendment) on search and seizure. Whilst the local representative claimed that “GPS tracking is an effective means of protecting public safety”, ACLU argued that in fact this is an unwarranted extension of surveillance powers: “the idea that you can go and attach anything you want to somebody else’s property without any court supervision, that’s wrong.”
Now the case itself involved a man suspected of stalking, itself a form of surveillance and not something anyone would want to encourage or defend, however, once again, ends do not justify the means, particularly when the implications of the use of such means are so profound. The ruling illustrates the widespread inability of judges (and lawmakers more broadly) to deal effectively the way in which new technologies change the game or perhaps the inability of constitutional protections to protect effectively in an age of vastly improved technologies of visibility.
In fact the judges in this case themselves expressed some disquiet about their ruling. I can sympathise with them – it is far from obvious how to interpret new surveillance technologies with the constition and laws available. One would think, after the wiretapping cases of the 60s and 70s in the USA, that this lesson might have been learned, but it seems courts will continue to take terms like ‘inside’ and ‘outside’ literally – as perhaps they must. But surely if a device is attached to the ‘outside’ of a car or a house, or indeed is not attached at all and is remote, it does not automatically follow that the information that the device collects is not intimate and personal, and indeed not the same as what could only have been obtained in previous decades by direct human intrusion? For example, a device that can effectively ‘see through walls’ is not the same as the naked eye – it is the equivalent of a police officer being inside the house. Whether this applies to a GPS tracker on a car (whether it is really any more or less than an officer sitting outside the house, or following the vehicle) is a moot point – there will be more and more of these cases, as police test the technological limits of the law, and it seems that most countries, not just the USA, still lack the professional (as opposed to the academic) legal thinking to deal with them.
…it is the USA that effectively controls earth orbit. However many other emerging economies see no reason why this should be the case….
Following last week’s collision between an obsolete Russian military satellite and an US Iridium communications satellite, there has been a lot of discussion about the management of orbital space (or, more accurately, the lack of it). Orbital positions are managed by the International Telecommunications Union (ITU), but the effective control of orbital space is a matter of power projection – i.e.: which country can maintain a stronger and more pervasive presence in space. With the Russian program almost defunct, and European satellites limited in number, it is the USA that effectively controls earth orbit. However many other emerging economies see no reason why this should be the case. India now has a regular launch program and in particular China is massively expanding its space presence, even making noises about its ability to destroy satellites if necessary.
China seems now to be using this incident to sound out other countries and the international scientific community about a more coherent and comprehensive international management of orbital space. In an article published on the official English-language news site, Chinadaily, various senior Chinese scientists and People’s Daily journalists are quoted in favour of “establishing a system for the promotion of space safety is an important method of space traffic management”, through “long-term cooperation from the international community”, and perhaps even a “space traffic law”, although it is acknowledged that this is “still a very remote concept”.
The one organisation that is not going to like this at all is the US military. USSTRATCOM has absorbed the space power doctrine developed in the 1990s by USSPACECOM, which argued effectively that orbital space should be part of US military plans for ‘Full-Spectrum Dominance’ (FSD) and that international projects like the International Space Station would be tolerated only insofar as they could be ‘leveraged’ to US advantage. The US military wants to maintain the ‘ultimate high ground’ that dominance of earth orbit gives them, for communications, for surveillance, for weapons targeting. They are not even very keen on the EU Galileo project, the new and more technically-advanced rival to GPS (which is a US military system).
Just as with the discussion about internationalising management of the Internet and moving it beyond US government control, any suggestions of a more comprehensive international management of space are likely to be resisted even at the expense of logic and reason. The Chinese know this very well, and are being rather cleverly provocative. They are however, right.