Sherry F. Colb

The Highest Court of New York State Protects Privacy from GPS Monitoring

By SHERRY F. COLB


Wednesday, June 24, 2009

Last month, in People v. Weaver, the New York Court of Appeals, the highest court of New York State, held that before attaching a GPS device to a suspect's car and continuously monitoring the car's whereabouts for 65 days, the police should have obtained a search warrant.

In so holding, the court relied exclusively on the New York State Constitution's analogue to the U.S. Constitution's Fourth Amendment right against unreasonable searches and seizures. The court thereby insulated its decision from reversal by the U.S. Supreme Court (because a state's highest court has the final word on the construction of state law).

In reaching the result that it did, the New York court indirectly raised important questions about the U.S. Supreme Court's interpretation of the federal right to be secure against unjustified intrusions by the police. And while this case will not reach the U.S. Supreme Court, its careful approach could prove influential for federal courts considering the parallel Fourth Amendment question.

The Federal Fourth Amendment Approach to "Tracking"

In the 1983 decision of United States v. Knotts, the U.S. Supreme Court considered a case in which police had planted a tracking device (a primitive version of the modern GPS) in a container of chloroform of which one of two defendants later took possession, placing it into a car. The tracking device helped the police monitor the whereabouts of the car in question, which they were in the process of pursuing, and ultimately led the police to the other defendant's cabin.

The defendants challenged the monitoring as a violation of the Fourth Amendment guarantee against unreasonable searches and seizures, arguing that people have a reasonable expectation of privacy in not having their movements electronically tracked by law enforcement.

The Court rejected this claim and concluded that "[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another." It elaborated that "[w]hen [the first defendant] traveled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was traveling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property."

Though the above reasoning might appear limited to visual surveillance, the Supreme Court notably emphasized that "[n]othing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them in this case." If we had to extrapolate from Knotts to Weaver (the New York case), we might therefore conclude that the U.S. Supreme Court would uphold the use of a GPS as simply "enhancing" the capabilities that people otherwise have "at birth" to observe cars in public spaces.

GPS versus a Primitive Tracking Device

As I noted above, the New York Court of Appeals rested its decision on state constitutional law and therefore did not directly challenge the federal ruling in Knotts. Nonetheless, the New York court took care to distinguish GPS devices from the primitive beepers at issue in Knotts, finding that the GPS technology "is a vastly different and exponentially more sophisticated and powerful technology that is easily and cheaply deployed and has virtually unlimited and remarkably precise tracking capability." By contrast, the court observed, the device in Knotts "functioned merely as an enhancing adjunct to the surveilling officers' senses; the officers actively followed the vehicle and used the beeper as a means of maintaining and regaining actual visual contact with it." The court likened the device to "a searchlight, a marine glass, or a field glass."

The reasoning here, distinguishing modestly-enhanced visual surveillance from vastly more powerful electronic tracking, is reminiscent of a line by Justice William O. Douglas in a dissent from the 1971 case of United States v. White, distinguishing between human and electronic eavesdropping: "What the ancients knew as 'eavesdropping' we now call 'electronic surveillance,' but to equate the two is to treat man's first gunpowder on the same level as the nuclear bomb. Electronic surveillance is the greatest leveler of human privacy ever known."

The point is a compelling one. In determining whether an investigative technology invades "reasonable expectations of privacy," it is useful to know not only whether the technology is roughly analogous to common or permissible unassisted human behavior (such as eavesdropping or observing a car's whereabouts from a public street), but also whether the electronic version is self-limited in the way that human observation is.

When we drive to the various places that, together, add up to a profile of our respective identities, we take the risk that someone might be watching at any given time and that our personal matters might thus become material for community gossip. The recent New York court decision provides illustrative examples: "trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on."

Despite this risk, however, we can generally proceed with our plans and feel relatively secure by relying on the unlikelihood of being subject to unnoticed yet systematic observation by people who will then pool the information they have collected. For privacy and security in our travels, in other words, our general anonymity on the public streets functions much like the concealment that we enjoy in private areas like the home. Yet such anonymity largely dissolves in the face of GPS monitoring. As the New York court put it, "[t]he potential for a similar [to GPS tracking] capture of information or 'seeing' by law enforcement would require, at a minimum, millions of additional police officers and cameras on every street lamp." The technology thus makes previously impossible surveillance quite easy to accomplish.

Implications for Fourth Amendment Law

Though the New York Court of Appeals carefully distinguishes between primitive and sophisticated tracking devices, it nonetheless refrains from applying the federal Fourth Amendment right against unreasonable searches and seizures to the GPS case. The opinion accordingly operates along two distinct tracks.

The opinion is, first, an argument for finding that the unregulated governmental use of technology that continuously monitors a car's movements from place to place is "not … compatible with any reasonable notion of personal privacy or ordered liberty…" The decision is, second, effectively a brief for federal courts considering the Fourth Amendment status of GPS devices. In performing this second function, the opinion implicitly urges federal courts to treat the question as novel rather than assume that Knotts effectively rules out the finding that the use of GPS devices represents a Fourth Amendment "search." To the extent that a federal court is persuaded on the merits that GPS tracking is highly invasive (the track 1 argument), the opinion – along track 2 – assures the court that Knotts does not preclude its so finding.

The court's approach here was wise. If it had ignored the Fourth Amendment case law altogether – as it could have done – then it would not have been well-positioned to influence federal courts' future approach to GPS devices. Indeed, if the court had avoided any Fourth Amendment discussion, most federal judges would likely have assumed that Knotts definitively answered the question posed, for federal purposes, and would therefore have deemed the New York state court ruling inapposite.

If, on the other hand, the court had relied on the Fourth Amendment (as one might have expected it to do, given its thorough treatment of Knotts), then the court would have practically invited the U.S. Supreme Court to review the case and find explicitly that GPS monitoring is not a Fourth Amendment search (as it would have probably done, given its current composition,).

Rejecting both of these alternatives, the New York Court of Appeals effectively paved the way for federal (and other state) courts to reach the same conclusion as New York on the merits and to find the space to construe the Fourth Amendment itself along these lines.

Distinguishing the Guilty from the Innocent

One point that is frequently lost in discussions of whether a particular technique constitutes a "search" is that an affirmative answer does not rule out law enforcement use of the technique. Examining the trunk of a person's car indisputably qualifies as a search, for example, but police regularly examine trunks. Calling an investigative act a "search" simply means that police must justify the decision to act on the basis of well-founded suspicion.

The dissenters in Weaver, the New York case, seemingly ignore this reality in arguing, as Judge Smith does, that "criminals can, and will, use the most modern and efficient tools available to them, and will not get warrants before doing so. To limit police use of the same tools is to guarantee that the efficiency of law enforcement will increase more slowly than the efficiency of law breakers." In so writing, Judge Smith implicitly assumes that people subjected to GPS monitoring will be criminals.

Yet the way to maximize the odds that only criminals are monitored is by requiring probable cause and a warrant, rather than by allowing police to track anyone they wish. As the majority pointedly mentions, "[b]efore us is a defendant whose movements have, for no apparent reason, been tracked and recorded relentlessly for 65 days." The greatest cost of allowing unregulated surveillance is thus the loss of innocent privacy at the mere whim of law enforcement.

Rather than bemoaning the fact that the privacy of criminals will enable crime, as Judge Smith does, it is therefore useful to remember some more of Justice Douglas's words of warning in his United States v. White dissent: "Today no one perhaps notices because only a small, obscure criminal is the victim. But every person is the victim, for the technology we exalt today is everyman's master." The New York Court of Appeals deserves much praise for heeding this lesson.


Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.

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