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Privacy Rights in the Digital Age, 2nd Edition

Global positioning system (GPS) tracking

Identification: Location-tracking mobile devices that can detect, store, and broadcast their physical location. Such devices raise major privacy issues, such as those involving the legitimate user’s expectation of privacy in public and private spheres.

Many users of GPS tracking technology use it to locate services, nearby acquaintances, and recommended restaurants; receive promotions; and obtain current traffic reports.

GPS law has been evolving with court cases and Federal Trade Commission (FTC) regulations. The regulation about geolocational privacy is concerned with the use of tracking or locating technology that reveals a person’s location.

A mobile device or a beacon with GPS may be used for tracking. Smartphones offer several ways of tracking their holders, including GPS, triangulation of cell towers, and Wi-Fi pickups, and law enforcement regularly requests both realtime and historical information on a cellphone’s location from phone companies, generally (since 2018) after obtaining a warrant (see below).

Many cars have tracking technology from a manufacturer or insurance company. Cameras at intersections and buildings may be used for geolocational tracking because they show the time that a certain person entered the camera’s view, and security cards and toll booth E-Z Pass and fast passes clock a time and location.

A major U.S. Supreme Court case involving geolocational privacy occurred in the context of a criminal conviction based on GPS technology. In United States v. Jones, 132 S.Ct. 945 (2012), the Court could have addressed the issue of whether constant monitoring of a person’s location was a violation of a person’s expectation of privacy; however, the Court decided the case on narrower grounds. In Jones, a drug dealer was convicted based partly on information sent from a GPS tracking device that was placed on the defendant’s car without a warrant. The device reported the suspect’s location every ten seconds for twenty-eight days. The appellate court overturned the conviction, concluding that law enforcement is required to obtain a warrant prior to using a GPS tracking device for such an extended period. The U.S. Supreme Court found that, while a person has no expectation of privacy on public roads and highways, a “reasonable person does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination, and each place he stops and how long he stays there. Instead, he expects each of these movements to remain ‘disconnected and anonymous.’”

Prior to Jones, some courts, in restricting GPS technology in criminal cases, relied on the reasoning from Department of Justice v. Reporters Committee for Freedom of the Press, 816 F. 2d 730 (DC Cir., 1987). In that case, the DC Circuit Court ruled that:

[a] person who knows all of another’s travels can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups—and not just one such fact about a person, but all such facts.

One such case was United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010). In that case, the Federal Bureau of Investigation (FBI) installed a GPS tracking device on Antoine Jones’s car while it was parked in a public parking lot. The FBI then used the device to track his vehicle’s movements over a one-month period. The discovery that Jones conspired to distribute cocaine was partially based on the location data generated by the GPS device. The U.S. Court of Appeals for the DC Circuit reversed Jones’s conviction, The court found that the warrantless GPS tracking was a search and violated the Fourth Amendment. The court did not address whether the GPS device’s warrantless installation also constituted a search under the Fourth Amendment.

The Seventh Circuit, in United States v. Cuevas-Perez, 640 F.3d 272 (7th Cir., 2011), refused to apply the precedent in Reporter’s Committee to a case in which law enforcement tracked a defendant’s car for sixty hours as it traveled through New Mexico, Texas, Oklahoma, Missouri, and Illinois. In the last state, the GPS battery began failing. Immigration and Customs Enforcement (ICE) agents then asked the Illinois state police to follow the car and stop him for any traffic violation possible. The police complied with this request and stopped the defendant for a minor traffic violation. This stop allowed the police to search his vehicle. Nine pounds of heroin was seized, and the defendant was then arrested for possession with intent to distribute heroin.

The defendant sought to suppress the drug evidence, based on grounds of invasion of privacy, which was based on the court’s holding in Maynard. Both the trial court and the U.S. Court of Appeals rejected the defendant’s argument.

The Seventh Circuit ruled that Maynard specifically did not apply to a single trip, reasoning that “the chances that the whole of Cuevas-Perez’s movements for a month would actually be observed is effectively nil—but that is not necessarily true of movements for a much shorter period.”

In Jones, the Supreme Court ruled that law enforcement must obtain a warrant before placing a tracking device on a suspect’s car and electronically tracking movements of the car. The justices disagreed, however, about whether the warrantless search, in this case, was an invasion of the defendant’s reasonable expectation of privacy, as articulated in Katz v. United States, 348 U.S. 347 (1967). Five justices believed that the police trespassed on the suspect’s car when they place the tracking device on it. The majority thus viewed this as an unreasonable search of the defendant’s car, which was in violation of the Fourth Amendment. The majority added that this “trespass” made it unnecessary to resolve the issue of whether the Katz “reasonable expectation of privacy” test was met under the facts of this case.

Four justices agreed with the outcome but believed that the Court should have answered some of the most important issues in Jones, including whether the Fourth Amendment allows the electronic monitoring of a suspect for twenty- eight days without a warrant. The minority believed that the court should have been found that the government had violated the Fourth Amendment because the defendant had a reasonable expectation that his movements would not be electronically monitored every ten seconds for four consecutive weeks.

Justice Sonia Sotomayor, who voted with the majority, also issued a concurring opinion in which she agreed with Justice Alito “that, at the very least, ‘longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.’” She added that awareness of government surveillance “chills associational and expressive freedoms.”

In his concurrence, Judge Alito observed how technological advances could endanger privacy rights; he wrote that “the greatest protections of privacy were neither constitutional nor statutory, but practical. Traditional surveillance for any extended period of time was difficult and costly and therefore rarely undertaken. . . . Devices like the one used in this present case, however, make long-term monitoring relatively easy and cheap.”

In United States v. Arrendondo, C#2:11- CR-63-FTM-29DNF (M.D., Fla, 2012), which was decided after Jones, a federal district court denied a motion to suppress evidence gathered pursuant to a warrant using a GPS tracking device that was installed in a package. Ultimately, the GPS device tracked the defendant’s package while it was in a truck that was moving in public places. The court reasoned that there was no Fourth Amendment violation because, unlike the Jones case, “no law enforcement officer trespassed on the defendant’s vehicle to install a tracking device” because the package was placed in the truck by the defendant.

In Carpenter v. United States (16-402; 585 U.S.__ [2018]), the U.S. Supreme Courtruled that it was a violation of a criminal suspect’s Fourth Amendment protection against unreasonable searches for law enforcement officials to obtain location data concerning the suspect from cellphone companies without first obtaining a warrant. The ruling disrupted longstanding law enforcement practices that relied on ready access to such data, yet it was hailed by civil libertarians as a victory for the rights of the individual.

Further Reading

1 

Johnson, Emily M. Legalities of GPS and Cell Phone Surveillance. New York: Novinka, 2012.

2 

Kuhn, Betsy. Prying Eyes: Privacy in the Twenty-first Century. Minneapolis, MN: Twenty-First Century Books, 2008.

3 

Leipnik, Mark R. GIS in Law Enforcement Implementation Issues and Case Studies. London: Taylor & Francis, 2003.

4 

Rabbany, Ahmed. Introduction to GPS: The Global Positioning System. Boston, MA: Artech House, 2002.

5 

Rengel, Alexandra. Privacy in the 21st Century. Leiden: Martinus Nijhoff Publishers, 2013.

6 

Swire, Peter P. Privacy and Surveillance with New Technologies. Thibault, Edward A., and Lawrence M. Lynch. Proactive Police Management, 9th ed. Boston, MA: Pearson, 2015.

7 

Thompson, Richard M. Governmental Tracking of Cell Phones and Vehicles: The Confluence of Privacy, Technology, and Law. Washington, DC: Congressional Research Service, 2011.

See also: Electronic surveillance; Federal Trade Commission (FTC); Fourth Amendment of the U.S. Constitution; Katz v. United States

Citation Types

MLA 9th
"Global Positioning System (GPS) Tracking." Privacy Rights in the Digital Age, 2nd Edition, edited by Jane E. Kirtley & Michael Shally-Jensen, Salem Press, 2019. Salem Online, online.salempress.com/articleDetails.do?articleName=PRDA2e_0107.
APA 7th
Global positioning system (GPS) tracking. Privacy Rights in the Digital Age, 2nd Edition, In J. E. Kirtley & M. Shally-Jensen (Eds.), Salem Press, 2019. Salem Online, online.salempress.com/articleDetails.do?articleName=PRDA2e_0107.
CMOS 17th
"Global Positioning System (GPS) Tracking." Privacy Rights in the Digital Age, 2nd Edition, Edited by Jane E. Kirtley & Michael Shally-Jensen. Salem Press, 2019. Salem Online, online.salempress.com/articleDetails.do?articleName=PRDA2e_0107.