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Obama administration says police should be able to use GPS to track suspects without a warrant

Last week, the discovery that iPhones and 3G iPads hold onto all locations logged by internal GPS systems sparked an outcry in the technology press and among some members of the public. Now, the Obama administration is pressuring the Supreme Court to overturn a U.S. Court of Appeals decision that ruled law enforcement must have a warrant preceding a surveillance-based investigation using a global positioning device attached to a suspect’s vehicle.

Passive GPS tracking is a known — and, as smart phones begin to dominate the cellular market, much more common — feature of mobile technology. The issue with the Apple devices is that they don’t just dump the data after a certain amount of time, like Android phones do, and that they restore the internal tracking database across backups and even migrate it over to new devices when, for example, a user upgrades to a new iPhone.

Privacy advocates who have voiced similar discomfort with Google and Facebook’s information collection practices say that the information could conceivably be sold to the highest bidder to bolster targeted corporate advertising. But last week’s developments could have larger resonance and far more immediate impact in the ongoing push to allow law enforcement to use GPS tracking information as evidence in federal court.

There is no uniform federal policy on whether search warrants are required for police and other law enforcement officers to track suspects using GPS devices. In August, the Ninth Circuit Court of Appeals, which has jurisdiction over the entire West Coast, plus Hawaii, Alaska, Montana, Idaho and Nevada, ruled in agreement with a lower court that police can legally attach GPS monitoring devices to suspects’ cars without needing a warrant. The court claimed that there is no reasonable expectation of privacy when one travels on public roads and that just following someone’s actions as they do so is fair game.

The very same month, however, the Court of Appeals for the D.C. Circuit fell on precisely the opposite side of the issue. It ruled that the FBI and D.C. police couldn’t use information from a tracking device as evidence in a drug conviction for a nightclub owner and suspected cocaine kingpin.

The Obama administration has now stepped in to fill in the gap that has arisen within the federal courts over the issue. Solicitor General Neal Katyal has submitted a petition to the Supreme Court asking it to review the D.C. Circuit Court’s decision. And the administration is proving to be no friend to privacy advocates: Katyal wants the Supreme Court to overturn the D.C. ruling and bring it in line with what was decided in California.

The Washington Post’s Robert Barnes reports:

The decisions come as judges increasingly are asked to unravel the connection between modern technology and constitutional protections of privacy and against unreasonable searches. GPS devices in cell phones and cars contain a wealth of information about a person’s movements, and a smartphone can provide law enforcement with vast amounts of information.

“This case is really going to confront the court with the problem of adopting the Fourth Amendment to a new information age,” said Daniel Prywes, a Washington lawyer who wrote a brief in the Jones case for the American Civil Liberties Union and the Electronic Frontier Foundation.

“I think it’s the seminal privacy case of the 21st century.”

It’s unknown if the Supreme Court will follow up on the administration’s request and hear the case. There are dueling precedents at play that cloud any theorizing over how the court would rule if it elects to take up the issue. In 1983, the Burger court ruled in United States vs. Knotts that the installation of a beeper-enabled tracking device on a vat of chemicals didn’t constitute a privacy violation, while a year later, the same court ruled in United States vs. Karo that installing such a tracking device on a can of ether became a privacy violation as soon as the can left public roads and ended up on private property (the conviction in that case was upheld anyway).

Both rulings, however, asserted the legality of the use of tracking devices to monitor evidence that could otherwise be obtained by simply watching suspects go about their business. If the Supreme Court interprets precedent along the lines desired by the Obama administration, it could very well pave the way to unimpeded, warrantless use of smart phones’ tracking information by law enforcement. The future of the government’s take on privacy rights in the information age hinges on what the Supreme Court does next, if it decides to take the case.

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