Legal Case to Decide Secret Police Use of GPS Tracking Devices

The National Association of Criminal Defense (NACDL) has posted the following important press release:

Civil Liberties Groups, Defenders and Law Professors Seek to Require Warrant for Police GPS Surveillance

Washington, DC (June 9, 2011) – A diverse group of civil liberties organizations, defenders and law professors this week weighed in on the question of whether law enforcement may unilaterally conduct unregulated surveillance of personal vehicles by secretly attaching global positioning satellite (GPS) transmitters. The case, State v. Johnson, is currently before the Supreme Court of Ohio and has profound implications for the privacy rights of individuals and organizations. The groups argue that this kind of tracking, unlimited by space or time, requires a court to first issue a warrant based upon a showing of probable cause.

As the law currently stands in Ohio, low-cost GPS transmitters can be secretly attached to any Ohioan’s vehicle to pinpoint the vehicle’s location on public or private property, 24/7, within a few feet or yards, to virtually any computer with an internet connection. The devices are used for tracking a vehicle or person in real-time, and the data also can be permanently stored and subjected to pattern analysis, revealing not just a person’s whereabouts, but his habits, associations, who his friends are, where he shops, banks and goes to church, and a host of other information. The groups and individuals submitting this brief argue that court supervision should be required to protect First and Fourth Amendment privacy rights.

While the U.S. Supreme Court has not yet ruled on the issue, several state courts have held under their own state constitutions that the use of the GPS device without any judicial oversight is unconstitutional, including New York, Washington, Oregon, Delaware, and Massachusetts. The U.S. Court of Appeals for the D.C. Circuit recently found such a requirement under the Fourth Amendment of the U.S. Constitution.

The organizations and individuals that joined the National Association of Criminal Defense Lawyers (NACDL) on this amicus curiae, or “friend of the court,” brief include the Ohio Association of Criminal Defense Lawyers, Electronic Frontier Foundation, First Amendment Lawyers Association, Center for Democracy and Technology, American Civil Liberties Union of Ohio, Office of the Ohio Public Defender, and seven Ohio Professors of Law.

The brief was written by Susan J. Walsh, Of Counsel at Vladeck, Waldman, Elias & Engelhard, P.C. in New York City and NACDL National Security Coordinator Michael W. Price.

“In an age where warrants can be secured in minimal time via electronic and other means, to not require a warrant based on probable cause before the government begins secret, around-the-clock electronic surveillance of persons who have not been charged or convicted of any crime is an open invitation to abuse. It is nothing less than an Orwellian nightmare to permit the collection of this kind of personal data without any judicial oversight whatsoever,” explains lead author Susan J. Walsh.

According to Ohio Attorney and Counsel for Amici Curiae on this brief, Ravert J. Clark, “This is just as much a First Amendment free association issue as it is a Fourth Amendment search and seizure issue for the people of Ohio. The secret use of these GPS devices by law enforcement permits the state to continually track and record a person’s whereabouts, without any limitation or prior approval by a court. This would include information about where people eat, sleep, worship, and seek medical care, as well as with whom they associate and the clubs they attend. The status quo should be a cause for significant concern for every Ohioan.”

The brief is available on NACDL’s website at: http://www.nacdl.org/public.nsf/newsissues/amicus_attachments/$FILE/OhiovJohnson_Amicus.pdf