Reason Foundation

Supreme Court Rules Police Need a Warrant to Track Your Car

Posted on January 23, 2012, 3:07pm | Steven Titch

In a major step toward defending constitutional rights and due process in an age of high-tech surveillance, the U.S. Supreme Court unanimously found that police require a search warrant to place a tracking device on a suspect's vehicle.

In doing so, the high court overturned the conviction of Washington, D.C nightclub owner Antoine Jones on charges of conspiracy to sell drugs. To convict Jones, prosecutors used as evidence information from a GPS tracker that had been attached to Jones' SUV. Although the Washington, D.C. police had obtained a search warrant for the device, officers did not execute the warrant until the day after it had expired. They also placed the device on the vehicle when it was in Maryland, outside the D.C. jurisdiction of the warrant. Jones' attorneys appealed his conviction to the D.C. Circuit Court of Appeals on Fourth Amendment grounds against illegal search and seizure. Prosecutors, supported by the Obama administration, argued that the search warrant, however improperly executed, was unnecessary to begin with because GPS tracking was not a search as defined by the Bill of Rights. The Appeals Court disagreed and the Supreme Court today upheld the ruling.

The decision will stand as a watershed moment in the application of Fourth Amendment guarantees in an era where police--from local precincts up to the FBI--have a bevy of intrusive electronic tools at their disposal. Although the decision pertained to electronic surveillance, the Opinion of the Court, written by Justice Antonin Scalia, notably rested on brick-and-mortar aspects, primarily that police trespassed on private property to execute the warrant.

Still, by the court's own admission, the ruling doesn't cover the use of technologies that do not require law enforcement to set foot or otherwise tamper with a suspect's property. These can range from location tracking via automatic highway toll payment systems to the use of thermal and infrared cameras, which can "see" in the dark, and sophisticated radio imaging devices, which, although still in prototype, have the potential to see through walls.  

However, the Supreme Court, as it often does, used this case as an opportunity to set up a framework for future cases that might tackle these greater issues. It chose to say that the "no reasonable expectation of privacy" test that has been used in other Fourth Amendment cases, including Katz v. United States, to allow the use information obtained from a suspect's behavior in public--as well as the use of information if it has been transferred to a third party--did not apply in this case. Even so, the opinion seemed to go out of its way to note that "expectation of privacy" claim was intended to augment, not diminish or replace, citizens' rights against search and seizure as laid down in the Fourth Amendment. It subtly reclaims "expectation of privacy" as touchstone for defendants and makes it less of an escape clause for government snooping.

This could have ramifications should a case involving a warrantless seizure of electronic data from cloud-based third-party storage services, such as Carbonite and Dropbox, come before the Supreme Court. Here again, then, the opinion chose to quote from Katz, reminding us that "the Fourth Amendment protects people, not places."

How Long Before Someone Dies Because of an Unsecured Wireless Router?

Posted on April 26, 2011, 11:48am | Steven Titch

According to an AP story out of Buffalo, N.Y., federal agents armed with assault weapons stormed a residence in the early morning hours last month looking for child porn on a home PC. The homeowner, whom the article did not identify, was roughed up and forced to the floor at gunpoint while agents accused him of being a creep and pervert.

Three hours later, after seizing the man’s PC along with his own and his wife’s iPhones and iPads, officials discovered no child porn and conceded that the raid had been a mistake.

It turned out that the resident had an unsecured wireless network, and that a neighbor—the actual culprit arrested a week later—had been using it to avoid detection. The AP does not say whether the Fed apologized for the raid, but the law enforcement community did its best to deflect blame. An official said that the homeowner would have avoided the confrontation if he had secured his home wireless network.

But even the AP article points out that the Feds could have easily determined that the network was unsecured before breaking down the door. And given that somewhat intelligent pedophiles know they can cover their tracks by finding and using someone else’s Internet connection—the AP article lists several examples where it’s been done--agents and their supervisors could have exercised some common sense before conducting a heavily-armed raid.

Here at Reason and formerly the Cato Institute, Randy Balko has been doing some terrific work detailing the cost police paramilitary tactics have had in terms of human life. A regular component of the drug war, these raids, often conducted for their theatrical value, too often end up targeting the wrong house or the wrong people with lethal results for innocent parties. To extend these militarized break-ins in a search for child porn, where the only evidence is an IP address, in a country where, as of 2007, an estimated 80 percent of home wireless networks were unsecure, is downright irresponsible. Police should not be using them; judges should not be approving them.

Besides, the whole (dubious) justification for a surprise, armed-to-the-teeth police raid is that the suspects themselves may be armed, and to prevent a drug stash from being quickly disposed of down a convenient toilet. Whatever you may say about their characters, collectors and distributors of child porn are not likely to be armed or violent, and a laptop or hard drive can’t be erased within seconds. Even if an attempt to delete a disk is made, the data is likely to be recoverable.

Yes, it is wise to secure your home wireless network, but failure to do so is not a crime and certainly not an excuse for police to use when they wrongly terrorize you in your own home. The AP article doesn’t say if the homeowner is pursuing any action against the federal government for the botched raid, but he should. Some expensive judgments today might, in the future, prevent a SWAT team from killing someone while attempting to seize a laptop, only to learn that the real culprit was a creep down the street who rigged a repeater with a potato chip can.

People at Michael Phelps Party Arrested

Posted on February 10, 2009, 12:00am | Adrian Moore

Reason magazine's Jacob Sullum says "the Richland County Sheriff's Department has arrested eight people on marijuana charges in connection with the November party where Olympic swimmer Michael Phelps was photographed taking a bong hit."