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Do Police Need A Warrant In Order To Use Global Positioning System Technology?
by R. A. Hettinga 21 Sep '03

21 Sep '03

<http://writ.news.findlaw.com/scripts/printer_friendly.pl?page=/aronson/2003…> FindLaw's Writ - Aronson: ---- Do Police Need A Warrant In Order To Use Global Positioning System Technology? A Recent Washington Court Said Yes, But It's Wrong By BARTON ARONSON baronson(a)findlaw.com ---- Wednesday, Sep. 17, 2003 Last week, the Supreme Court of Washington became one of the first states to address whether, when the police use Global Positioning System (GPS) technology to track a suspect's movements, they need a warrant to do so. The Court held the answer was yes. Like many search and seizure cases, State v. Jackson is an awkward attempt to fit new law enforcement techniques into old jurisprudential boxes. This time, the Court would have been better off paying more attention to the boxes: in finding that the police did need a warrant, the court seem transfixed by the novelty of the technological to the exclusion of the rights it was supposed to be protecting. The Facts of Jackson In October 1999, William Jackson reported that his nine-year-old daughter was missing from his home. Suspicion quickly focused on Jackson himself, but the police lacked the evidence for an arrest. They did, however, have enough for warrants to search Jackson's vehicles, which were duly impounded by the Spokane police. Before returning Jackson's 1995 Ford pickup, the police sought and were granted a warrant to attach a Global Positioning System (GPS) device to the truck. The device allowed the police to track Jackson's movements without any effort greater than logging onto their computers and downloading the GPS device's data stream. They returned the truck to Jackson, but did not tell him that the devices had been installed. The first warrant was for ten days, which the judge extended for ten more. During that time, the police used the GPS device to track Jackson's vehicle to two remote locations and a storage unit. At one of those remote locations, the police found plastic bags, duct tape, and hair and blood samples. At the other, they found Jackson's daughter buried in a shallow grave. Jackson was convicted of first-degree murder. Washington Law on Search and Seizure On appeal, Jackson argued that the police did not have probable cause for the warrant. In so doing, he invoked a provision of the Washington state constitution that differs from - and is more protective of privacy than - the Fourth Amendment of the U.S. Constitution. An intermediate court ruled that the police didn't need a warrant for the GPS device, and so never decided whether there was probable cause; the Washington Supreme Court ruled that the police did, in fact, need the warrant, but ruled that it was supported by probable cause. While Washington is one of the first states to address this issue, it won't be the last. And apart from the precise technology at issue, the dispute between the state's appellate courts illustrates two different approaches to the intersection of technological innovation and the law of search and seizure. The Law of Search and Seizure and the Definition of a "Search" There is no "right to privacy" in the U.S. Constitution - at least, not in so many words. But the Fourth Amendment, which forbids "unreasonable searches and seizures," has long been understood to protect our reasonable expectations of privacy by requiring law enforcement, before violating those expectations and trenching on that privacy, to get a warrant. By interposing a neutral party - a judge - between law enforcement and the rest of us, the warrant requirement is supposed to ensure public order while preventing abuses of executive power. But the police only need a warrant if they conduct a "search." And as the law stands, there is no search if all the police do is see what you, voluntarily, expose to public viewing. So, if you keep your collection of roach clips and rolling papers safely under lock and key indoors, the police would need a warrant to go into your home and look for it. But if, having decided to kick the habit, you hold a sale in your front yard and put your drug paraphernalia in bins marked "$1," $2," and so on, and the police walk by to inspect the merchandise, they've conducted no "search" in finding your stuff. All of William Jackson's movements that were tracked by the GPS device were "public," in the sense that other people could have watched them without entering private homes or property. If the police had decided to follow Jackson in their cruisers as he drove to his storage locker and his daughter's grave, he could not have forbidden the police from following him or demanded to see a warrant. He drove on public roads, and went to public - albeit remote - places. Changing Technology and Changing Search and Seizure Law But the police didn't just follow Jackson - they tracked him using relatively new and sophisticated technology. Most people are vaguely aware of GPS technology, but it's probably fair to say Jackson, like almost all of the rest of us, has not pondered its uses in monitoring the movements of crime suspects. It would not be surprising to learn that the notion that his truck had a homing device never entered Jackson's mind. Search and seizure law has always accounted for technological innovations. If you "hide" your drug paraphernalia by putting it on your front door step at night, you could, conceivably, tell the judge that you reasonably expected privacy because, after all, it was dark and no one could see it. But if the police walk by and shine a flashlight on your stuff, the judge is likely to find they conducted no "search" at all. While the opinions in this area are by no means a model of consistency, the mantra for the courts is that technology may enhance an officer's senses without resulting in a search. But if the technology intrudes where the officer's senses could never go (think of a wiretap), then the officer will need a warrant. Old Categories, New Technologies, and the Conviction of William Jackson William Jackson's case is one of many at the intersection where our expectations of privacy meet new technologies. On the one hand, everything Jackson did was, in one sense, "public." On the other, the police detected his movements using unusual and sophisticated means, and the court was clearly troubled by the complete picture of Jackson's life that the GPS device could generate by comprehensively tracking his movements. Finally, the Court saw this distinction: "the GPS device does not merely augment the officers' senses, but rather provides a technological substitute for traditional visual tracking." How to resolve the tension? The answer will vary from case to case, but here, the state supreme court seems to have fixated on the technology and forgotten the interests involved. Start with the notion that there is no question, none at all, that the police can follow your movements in public. They can do so, moreover, while trying to conceal their identity, by driving in unmarked cars, not following too closely, and regularly switching vehicles. And they can certainly do it for a couple of weeks before you'd have any legal right to complain. If the sheriff's office had tracked William Jackson this way, his appeal would have merited a single paragraph from the courts of appeals rather than two lengthy opinions. Jackson, of course, hoped his movements would go undetected - that's why he buried his daughter in the woods rather than on his own property or some more public place. But he had no reasonable expectation of privacy in the woods. He didn't own the property and could not prevent others from following him there or finding it on their own. Whatever his hopes, they were not legitimate expectations in the sense that he could do anything to ensure the privacy he craved. All of this focuses on Jackson's expectations, because that's what matters. The state supreme court forgot that when it noted that "it is unlikely that the sheriff's department could have successfully maintained uninterrupted 24-hour surveillance." Predicating our expectations on the limited resources of law enforcement is a bad idea, for several reasons. The police have nearly unfettered discretion in deciding how to use their resources. Some crimes will have higher priorities than others; here, for example, Jackson's daughter was missing ,and therefore possibly still alive. What expectations would be "reasonable" under these circumstances? Would the result be different if the GPS device had led the police to Jackson's daughter's body in the first 24 hours? Moreover, the supreme court just might be wrong about whether the police could pull this off. Sometimes the police do try to follow people for days or weeks on end, and sometimes they succeed. Sometimes the police are in the right place at the right time; often they are not. But since most crime will go undetected most of the time, it is difficult to see how this scrutiny on police resources will lead to intelligible rules for determining when the police have conducted a search and when they have not. Fortunately, guessing about what the police can or cannot do - a fruitless inquiry - is not how we protect privacy rights. The state supreme court should have stayed focused on what mattered: Jackson's expectations. None of this is intended to take lightly the extraordinary power that police have to use - and abuse - in the pursuit of crime. And there is nothing wrong, in principle, with a court saying that when technologies race ahead of our expectations, the police may need a warrant while we get used to the notion - if we get used to the notion - that we've lost a little bit more privacy. But the word "technology" is not to be incanted by courts as a reason for abandoning basic principles of search and seizure law. And one of those principles is that, as a matter of law, you cannot hide in plain sight. Barton Aronson is an attorney in Washington, D.C.. Prior to that, he was a prosecutor in Washington, D.C., and an Assistant District Attorney in Massachusetts. The opinions expressed in this article are his own. Company |Privacy Policy |Disclaimer Copyright ' 1994-2003 Find Law -- ----------------- R. A. Hettinga <mailto: rah(a)ibuc.com> The Internet Bearer Underwriting Corporation <http://www.ibuc.com/> 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'

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Weekly Hangar 18 Social
by Jim Choate 21 Sep '03

21 Sep '03

Asymmetric Clustering... Distributed Name Space... Global Sign-on... Guerrilla Networking... Open Source Technology... Do these words make your heart beat faster and your breath go shallow? If so then perhaps you should become involved with Hangar 18. We are a tit-for-tat group of computer hobbyist of a wide range of skills intent on building the next computing infra-structure using Open Source technology. We don't focus on any one form of technology but instead focus on real world applications in grid or large scale distributed computing. Time: Oct. 25, 2003 (last Thu. of month) Every Thursday, excluding national holidays 7:00 - 9:00 pm (or later) http://open-forge.org Location: The location varies from week to week so be sure to check with an active Hangar 18 member (or join the mailing list!) for more information. The last Thursday of each month we meet at the Robot Group. Please contact them directly for directions, per their request. http://robotgroup.net Identification: We'll be the group with the Plan 9 stuff...;) Homepage: http://open-forge.org/hangar18/ Mailing List: Send 'majordomo(a)open-forge.org' an email which has in the body 'subscribe hangar18-general' and nothing else. You should be subscribed to the list and recieve a notification back from the server. There are a variety of mailing lists currently available. Internet Relay Chat: kraken.open-forge.org 6667 The Open Forge group tries to meet each evening at 10PM (Austin, Tx.). The server is available for use 24/365. Austin Contacts: Open Forge, LLC helpdesk: 512-695-4126 (24/365) vmb: 512-451-7087 help(a)open-forge.com Events & News: There is a 1st Saturday Sale road trip scheduled for Oct. 4. We'll be starting a re-write of the installation How To over the next week or so. Look for it around the first couple of Oct.

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Austin Cypherpunks Montly Social
by Jim Choate 21 Sep '03

21 Sep '03

Time: October 14, 2003 Second Tuesday of each month 7:00 - 9:00 pm (or later) Location: Central Market HEB Cafe 38th and N. Lamar Weather permitting we meet in the un-covered tables. If it's inclimate but not overly cold we meet in the outside covered section. Otherwise look for us inside the building proper. Identification: Look for the group with the "Applied Cryptography" book. It will have a red cover and is about 2 in. thick. Contact Info: http://einstein.ssz.com/cdr There is an irc channel that is available 24/365 at irc.open-forge.org on port 6667. This resource is made available by the good graces of Open Forge, LLC. The mailing list can be joined by sending an email to majordomo(a)ssz.com with 'subscribe austin-cpunks' in the body. News & Events: The H18 Plan 9 efforts are well underway with three three (3) boxes available in Austin (more on the way) and other boxes in places like Russia, Spain, and Portugal. We are currently working on kernel patches that allow an increased pool of cpu servers to be available to user processes. Another P9 effort is integrating RSA into the factotum. We've got several wireless nodes available now and will be upgrading the SSZ node in particular in the next couple of weeks. We're expanding our system from just 802.11b to include a, b, & g. There will be a road trip to Dallas on Oct. 4 for the 1st Saturday Computer Sale that is held each month.

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The Register - eBay to Fees: come and get what you want (fwd)
by Jim Choate 20 Sep '03

20 Sep '03

Another example of why CACL [1] approaches don't work. Claims that business are not as bad as the government are bogus because they fail to realize that both are activities of people and people are the cause of problem. The evils of man are not a function of government, business, or whatever. They rest solely on the human mind. http://www.theregister.co.uk/content/6/32936.html [1] Crypto-Anarchy, Anarcho-Capitalist, Capitalist, Libertarian And note the 'big C' on capitalist....the distinction is whether the commerce is the means or the ends. Big C capitalism it is the ends and human lifetimes are the means. -- -- God exists because mathematics is consistent, and the Devil exist because we can't prove it. Andre Weil, in H. Eves, Mathematical Circles Adieu ravage(a)ssz.com jchoate(a)open-forge.com www.ssz.com www.open-forge.com

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Cryptome: Torch Concepts threatening Cypherpunks
by Nomen Nescio 20 Sep '03

20 Sep '03

http://cryptome.org/jetblue-spy.htm The attorney for Torch Concepts has sent cease and desist letters to Bill Scannell and Len Sassaman for offering the Torch Concepts file, the "smoking gun" in the Jet Blue privacy violation scandal. The file is currently still available on Len Sassaman's website, as well as Cryptome.

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careful with that nym, eugene
by Major Variola (ret.) 20 Sep '03

20 Sep '03

The man who e-mailed The Times and claimed credit for the attacks used the name Tony Marsden, which he said was a pseudonym. The man also said that one of his hobbies was math and that he and his accomplices had painted Euler's Theorem on the side of one of the cars. FBI Searches Computers at Caltech in Hummer Probe The man said he used the name Tony Marsden because he had known people named Tony and Marsden. There is a Caltech professor named Jerrold E. Marsden who co-wrote a textbook titled "Vector Calculus" with Anthony J. Tromba. Jerrold Marsden was on vacation in Northern California this week. On Friday, he told The Times that he had not been contacted by the FBI or Caltech. http://www.latimes.com/news/local/la-me-hummer20sep20,1,1054265.story?coll=… (Next time try Marion Hornyak or Thomas Finney...)

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Judges taste for kiddy prawns (1st, 4th amends, hacking for pigs)
by Major Variola (ret.) 19 Sep '03

19 Sep '03

Ex-Judge May Testify in O.C. Porn Case Testimony by Ronald C. Kline could affect ruling to admit evidence found on workplace computer. By Christine Hanley, Times Staff Writer Former Orange County Judge Ronald C. Kline may be called to the witness stand to explain why he didn't realize his courthouse computer could be searched for child pornography especially since he helped draft the rules for such searches. Kline is expected to be asked Monday to explain his role on the Orange County Superior Court's Technology Committee, which developed the policy that warned judges and court staff that their computers were not their property and could be searched. The hearing could prove pivotal as prosecutors try to salvage a child pornography case that has all but collapsed since Kline was arrested. The case has drawn national attention, particularly as Kline waged a reelection campaign while facing the charges. He later quit the race and gave up his seat on the bench. Judge Consuelo B. Marshall has already tossed out evidence including diary entries about his sexual desires and more than 1,500 pornographic images of young boys that support six of the seven charges. In her decision earlier this summer, she ruled that Kline's right to privacy was violated by a Canadian man who was working for police when he hacked into the computers used by Kline at home and at work. Prosecutors are appealing that decision, but first Marshall must rule on whether to suppress the handful of e-mails, pornographic images and diary entries allegedly found on Kline's courthouse computer. Those items support a single count of possessing child pornography the lone criminal charge facing Kline. Kline's attorneys argue that the government's attempt to save the evidence collected on his work computer is misleading. The question of whether Kline knew about the policy is moot, they say, because his computer wouldn't have been searched without the information provided by the Canadian hacker. "The chambers computer search was the fruit of the primary illegality; as such, it must be suppressed," said lead defense attorney Paul S. Meyer. But prosecutors contend police did not need a search warrant to inspect Kline's computer. They argue the court's own policy warned judicial officers and other staffers that their computers were not their property and could be monitored for questionable activity at any time. The eight-page policy warns computer users that access to sexually explicit and other offensive information is strictly prohibited and that "e-mail, Internet access and personal computers are provided for business use and not a public forum, and as such does not provide for First Amendment Freedom of Speech guarantees." At the same time, it also states that management may be required "based on a subpoena" to release computer files to law enforcement agencies in a criminal investigation. Prosecutors have filed a copy of the policy, as well as declarations from Richard Droll, the chief technology officer of Orange County Superior Court since 1993, and Kathleen E. O'Leary, an associate justice of California's 4th Appellate District. Droll confirms that Kline was on the Technology Committee and attended meetings in 1996 when the policy was drafted and later when it was revised. O'Leary, who was presiding judge of the Orange County court system when the policy was imposed, sent a memo to the staff on Oct. 13, 1998, which was distributed via e-mail and to office mailboxes. One of her intents, she said, was to remind staffers that "management retained the right to inspect and examine computers and their contents if necessary." But Superior Court Judge John M. Watson, the head of the civil panel who has been subpoenaed to testify, says he believes that any judge's work computer is and should be protected by the Fourth Amendment, regarding search and seizure of property. http://www.latimes.com/news/local/la-me-kline19sep19,1,4891037.story?coll=l…

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JetBlue Shared Passenger Data
by Gil Hamilton 19 Sep '03

19 Sep '03

http://www.wired.com/news/privacy/0,1848,60489,00.html wherein JetBlue helps you bend over while TSA unbuckles... - GH _________________________________________________________________ Try MSN Messenger 6.0 with integrated webcam functionality! http://www.msnmessenger-download.com/tracking/reach_webcam

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Versign creates man-in-the-middle attack on DNS
by Neil Johnson 19 Sep '03

19 Sep '03

Just a few hours ago Versign modified the Internet's root DNS servers to respond to ANY DNS lookup that doesn't resolve in a real hostname to return the IP address of one their servers where they claim to have a search engine. For example, if you access http://www.thisisjunk55666.com , you will get a Verisign page, not a "Host can not be found error". This means that many anti-spam checks will fail among other issues. They will also intercept mail to mistyped email hosts (They claim to reject the mail, but not after having collected the From and To address). This really bites. -- Neil Johnson http://www.njohnsn.com PGP key available on request.

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Dead Address Test (no reply plz)
by Jim Choate 19 Sep '03

19 Sep '03

-- -- God exists because mathematics is consistent, and the Devil exist because we can't prove it. Andre Weil, in H. Eves, Mathematical Circles Adieu ravage(a)ssz.com jchoate(a)open-forge.com www.ssz.com www.open-forge.com

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