Last fall, third-year UW Law School student Monica Mark won the Greenhalgh Student Writing Competition from the Criminal Justice Section of the American Bar Association. The winning paper, “GPS Tracking, Smartphones, and the Inadequacy of Jones and Katz,” earned Mark a cash prize, a trip to Washington, D.C., to receive the award, and publication of her article in Criminal Justice magazine. After graduating this May, she will begin working as a judicial clerk for Chief Judge William Conley in the Western District of Wisconsin.
Here, Mark describes what she learned from the research.
Early in 2012, Clinical Professor John Pray, my supervisor at the Wisconsin Innocence Project, pointed me to a newly decided Supreme Court case dealing with privacy in the age of GPS technology—United States v. Jones.
In Jones, the issue was whether law enforcement violated the Fourth Amendment, which protects people from unreasonable searches and seizures, by placing a GPS unit on a suspect’s car without a warrant. The entire court answered yes, but the decision was based on the physical intrusion onto the suspect’s property. They resolved the case by referencing the trespass doctrine, which is hundreds of years old and nearly meaningless in the context of cell phone GPS tracking.
I expected the decision to delve into all the complex questions that GPS technology raises regarding our legal expectation of privacy. I was surprised to find exactly the opposite. For instance: do people have a reasonable expectation of privacy of their location when they carry smartphones? Are police free to request a person’s location from a phone company at any given time? Can law enforcement use someone’s smartphone—and the GPS inside—to find people, wherever they are?
In my view, neither Jones nor any of the current Fourth Amendment cases that lawyers tend to cite have answered these questions. That realization was the basis for my criminal justice article, “GPS Tracking, Smartphones, and the Inadequacy of Jones and Katz.” I sorted through court opinions and found no clear answers for my questions—questions that will continue to come up as smartphones become the universal mode of communication.
The courts are not equipped to decide what information from a GPS is available to police. Congress was considering a new law at the time, but even that law fell short of answering these questions. For instance, what happens if police use GPS information not as evidence, but rather to track down and arrest someone? A case with those facts is pending in Wisconsin right now, and it won’t likely be the last.
I have continued to follow the developments in Fourth Amendment law since completing my article. Recent news reports indicate that police departments and law enforcement across the United States have begun using cell phone tracking devices to locate suspects. At the same time, the Sixth Circuit held not long ago that “[w]hen criminals use modern technological devices to carry out criminal acts and to reduce the possibility of detection, they can hardly complain when police take advantage of the inherent characteristics of those very devices to catch them.”
The decision only raises more questions. What if the suspect uses the phone for a non-criminal purpose? What if he or she simply has it? As the technology changes and more people use it, these questions will almost certainly be followed by more.
Though my official research into the topic has concluded, I continue to watch with interest and look forward to the day when the law catches up with technology. Until then, I will continue to ask myself the practical questions that, to my mind, still have no answers.
Submitted by Law School News on April 10, 2013
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