WIRED | September 21, 2010
By David Kravets

The Obama administration has urged a federal appeals court to allow the government, without a court warrant, to affix GPS devices on suspects’ vehicles to track their every move.

The Justice Department is demanding a federal appeals court rehear a case in which it reversed the conviction and life sentence of a cocaine dealer whose vehicle was tracked via GPS for a month, without a court warrant. The authorities then obtained warrants to search and find drugs in the locations where defendant Antoine Jones had travelled.

The administration, in urging the full U.S. Court of Appeals for the District of Columbia to reverse a three-judge panel’s August ruling from the same court, said Monday that Americans should expect no privacy while in public.

“The panel’s conclusion that Jones had a reasonable expectation of privacy in the public movements of his Jeep rested on the premise that an individual has a reasonable expectation of privacy in the totality of his or her movements in public places, ” Assistant U.S. Attorney Peter Smith wrote the court in a petition for rehearing.

The case is an important test of privacy rights as GPS devices have become a common tool in crime fighting, and can be affixed to moving vehicles by an officer shooting a dart. Three other circuit courts have already said the authorities do not need a warrant for GPS vehicle tracking, Smith pointed out.

The circuit’s ruling means that, in the District of Columbia area, the authorities need a warrant to install a GPS-tracking device on a vehicle. But in much of the United States, including the West, a warrant is not required. Unless the circuit changes it mind, only the Supreme Court can mandate a uniform rule.

The government said the appellate panel’s August decision is “vague and unworkable” and undermines a law enforcement practice used “with great frequency.”

The legal dispute centers on a 1983 U.S. Supreme Court decision concerning a tracking beacon affixed to a container, without a court warrant, to follow a motorist to a secluded cabin. The appeals court said that decision did not apply to today’s GPS monitoring of a suspect, which lasted a month.

The beacon tracked a person, “from one place to another,” whereas the GPS device monitored Jones’ “movements 24 hours a day for 28 days.”

The government argued Monday that the appellate court’s decision “offers no guidance as to when monitoring becomes so efficient or ‘prolonged’ as to constitute a search triggering the requirements of the Fourth Amendment.”

The appeals court ruled the case “illustrates how the sequence of a person’s movements may reveal more than the individual movements of which it is composed.”

The court said 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.”