Warrantless GPS Tracking: Who Cares About Vehicle Transponders - What About Your Cell Phone?
| Author | Eric Samuel Heidel |
| Pages | 1-12 |
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Eric Samuel Heidel*
ericheidel@att.net
Abstract: The government now regularly gathers information from individual s’
smartphones. Cellular providers are allowing the government to access the GPS data that
users’ smartphones exchange with the provider. While there are legitimate purp oses for
this disclosure without the c onsent of the smartphone user, there are many instances were
no emergency situation exists and no search warrant is even sought. The law currently
views sharing GPA data with a cellular p rovider as a voluntarily disclosure, creating a
lesser e xpectation of privacy. Although posting locations on social networking sites is a
clear public disclosure, using modern technology for directions or other conveniences
should not cause an individual to forfeit privacy.
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1. Introduction
The Supreme Court recently released its highly anticipated decision in U nited States v. Jones, holding that
placing a Global Positioning System (“GPS”) tracker on a private vehicle is a search within t he meaning
of the Fourth Amendment of the Constitution. Only a few decades ago, this issue would have been
beyond anyone’s imagination. Lower courts and even the Supreme Court have found previous Fourth
Amendment decisions to be of little help in the quickl y advancing technological world of the twenty-first
century.
More specifically, the Court has been presented with several cases involving tracking devices. It
began with beacons that emitted a signal up to a certain distance, and most recently, in Jones, the Court
dealt with placing GPS transponders on vehicles. Before the late twentieth ce ntury, police would simply
follow a suspect on public thoroughfares. This sur veillance technique did not implicate any constitutional
protections since police were on public streets, and Supreme Court “cases suggest that such visual
observation is constitutionally permissible.”
Traditional surveillance “would have required a large team of agents, multiple vehicles, and perhaps
aerial assistance.” Unlike the current situatio n where a small GPS device is largely undetectable, private
citizens could previously, with relative ease, determine if law enforce ment was following them. GPS
trackers are controversial because without inspec ting the entire vehicle, undercarriage and all, before each
outing, the common citizen is unlikely to be aware of the device and subseq uent tracking. However, now
that “GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design,
proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices:
‘limited police resources and community hostility.’ ”
Tracking smartphones is far more practical t han tracking v ehicles with transponders attached; that is,
the average person is unlikely to ever leave his or her phone behind. Americans wear their phones on
their arms when they run or walk, bring them along whe n traveling by car, bus or train, and otherwise
have them in a pocket, coat, or bag on their person. In fact, “as of June 2 011… there were more than 322
million wireless devices in use in the United States.”
The central issue is whether the police can track the GPS built into a s martphone without a warrant.
The underlying question is whether the tracking of the GPS location of a smartphone is even a search at
all. The first part o f this article explores the Fourth Amendment to the United States Constitution and the
relevant sear ch and seizure jurisprudence of the United States Supreme Court. The second part delves
into the Katz reasonable expectation of privacy test that the concurring Justices indicate is most
appropriate for future cases that do not involve a physical intrusion of any kind, as is the case with the
built-in GP S transponders of smartphones. The third section addresses the limitations that the Court’s
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