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The South Florida Sun-Sentinel provides us with one more data point
showing the growing frequency with which police are using cell phones
as tracking devices—a practice whose surprising prevalence the ACLU shone light on in April.
In fiscal year 2011-2012, the first year Florida kept tabs on cell
location tracking, state authorities made 171 location tracking
requests—and apparently hope to expand the program.
The article alludes to a couple of specific cases in which location
tracking was employed—to find a murder suspect and a girl who was
thought to have been kidnapped—both of which are perfectly legitimate
uses of the technology in principle. In general, if there’s enough
evidence to issue an arrest warrant, the same evidence should support a
warrant for tracking authority when the suspect’s location isn’t
immediately known. In cases where police have a good faith belief that
there’s a serious emergency—such as a suspected kidnapping—it’s even
reasonable to allow police to seek location information without a court
order, as is standard practice with most other kinds of electronic
records requests. But the Sun-Sentinel report is also
unsettlingly vague about the precise legal standard followed in
non-emergency cases. According to a law enforcement official quoted in
the story, the Florida Department of Law Enforcement’s Electronic
Surveillance “always seeks judicial approval to trail someone with GPS,”
while the written policy only “instructs agents to show probable cause
for criminal activity to the department’s legal counsel to see if a
court order is necessary,” implying that it sometimes is not necessary.
The term “court order,” however, is quite broad: the word that’s
conspicuously absent from these definitions is “warrant”—an order
meeting the Fourth Amendment’s standards. In the past, the Justice
Department has argued that many kinds of location tracking may be
conducted using other kinds of authority, such as so-called “pen
register” and “2403(d)” orders. Unlike full-fledged search warrants,
which require a showing of “probable cause” to believe the suspect has
committed a crime, these lesser authorities require only “reasonable
grounds” to believe the information sought would be “relevant” to some
legitimate investigation. That is, needless to say, a far lower hurdle
to meet.
Police refusal to discuss the program with reporters is also part of a
larger pattern of secrecy surrounding location tracking. As Magistrate
Judge Stephen Smith observes in a recent and important paper,
such orders are often sealed indefinitely—which in practice means
“forever.” Unlike the targets of ordinary wiretaps, who must eventually
be informed about the surveillance after the fact, citizens who’ve been
lojacked may never learn that the authorities were mapping their every
move. Such secrecy may be useful to police—but it also means that
improper use of an intrusive power is far less likely to ever come to
light.
Location tracking can be a valuable tool for an array of legitimate
law enforcement purposes—but especially in light of the Supreme Court’s unanimous decision in United States v. Jones, it has to be governed by clear, uniform standards that satisfy the demands of the Fourth Amendment.
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