At 12:12 PM 5/12/2003 -0700, you wrote:

I read somewhere that the original wiretap laws were motivated when police bugged a phone booth (fishing), and snared someone placing a bet. The court held that there was an expectation of privacy.

Interesting to see what they say now. Segues nicely with the CALEA/cellphone locator tech too. The Court decided on essentially the same facts in U.S. v. Knotts when they held that placing a beeper in a drum containing chloroform used in the manufacture of illegal drugs was constitutional because it only extended

The original laws and cases concerning wiretapping predate the case your talking about by quite a bit. California's law concerning intercepting telegraph communications, passed in 1862, made wiretapping illegal before the advent of the telephone. The first Supreme Court case dealing explicitly with wiretapping is Olmstead v. U.S. (1928) where the Court decided that wiretapping was not a trespass. (The reasons for this are to convoluted to go into here.) This precedent held until the late 60's when the Warren Court made two decisions that forced the Feds to implement an actual law that dealt with wiretapping. The case you're talking about is Katz V. U.S. (1967) where the FBI put a tap on a phone booth without obtaining a court order. This precedent was important because it held that the Fourth Amendment protected people, rather than places, and that wherever someone has a reasonable expectation of privacy, such as in a closed phone booth, is protected. the legal practice of physically following someone. I doubt that the Rehnquist court is going to overturn that precedent. There was a case decided in 2001 which held that using a thermal imaging device to detect patterns of heat consistent with growing marijuana indoors was a search and needed a warrant. They do have some qualms about the cops using technology that's not available to the general public but I doubt they'll come up in this case. The cell phone locator is getting shoved through the back door in the E911 specs to save those people who get stranded in the East River while their drunk or drive off a cliff. It's all for the good of the people of course. Jack Reed

http://seattlepi.nwsource.com/local/121572_gps12.html

Monday, May 12, 2003

Court will decide if police need warrant for GPS 'tracking'

By KATHY GEORGE SEATTLE POST-INTELLIGENCER REPORTER

William Bradley Jackson worried that he hadn't properly concealed his victim's shallow grave. So he snuck away one quiet fall day to finish the job, unaware that sheriff's deputies had secretly attached a satellite tracking device to his truck.

Police trickery triumphed over his treachery.

Spokane County sheriff's investigators used the hidden device to retrace Jackson's path to the gravesite, where they found crucial evidence that would lead to his murder conviction in 2000.

But what if the same secret technology, called global positioning satellite tracking, could track anyone at any time?

The Washington Supreme Court will decide soon whether police agencies throughout the state may use the device freely -- without a warrant. The Jackson case is the first in the state dealing with the issue.

"Do we really want the ability to track everybody all the time, without any suspicion, or without probable cause?" asked Doug Klunder, a Seattle attorney who wrote an amicus brief, or friend of the court, in the case on behalf of the American Civil Liberties Union of Washington. "How close are we to Big Brother?"

Many law enforcement agencies, including the King County Sheriff's Office and King County Prosecutor's Office, believe no warrant is needed for the tracking devices.

That's because they simply record electronically what anyone could see by following a vehicle on the public streets.

"We'd be shocked if the court said otherwise," said King County sheriff's spokesman Kevin Fagerstrom.

In Jackson's case, the state Court of Appeals in Spokane agreed no warrant was needed.

The court's opinion last year said, "A law officer could legally follow Mr. Jackson's vehicles on public thoroughfares .... The GPS devices made Mr. Jackson's vehicles visible or identifiable as though the officers had merely cleaned his license plates, or unobtrusively marked his vehicles and made them plain to see."

Critics of the Spokane court's opinion say there's a big difference between following someone's real-time movements and recording them for computer analysis later. "There's just something that feels more underhanded about it," said Klunder.

It's not just government abuse the ACLU fears. Stalkers could use GPS to find their victims, and jealous husbands could use it to spy on their wives. "If the police can do it without a warrant, then presumably a private citizen can, too," Klunder said. <snip>