Snooping by satellite

By Declan McCullagh, News.com
Posted on ZDNet News: Jan 12, 2005 7:00:00 PM

Police suspected the lawyer of ties to a local Hells Angels Motorcycle Club that was selling methamphetamine, and they feared undercover officers would not be able to infiltrate the notoriously tight-knit group, which has hazing rituals that involve criminal activities. So investigators stuck a GPS, or Global Positioning System, bug on Moran's car, watched his movements, and arrested him on drug charges a month later.

A federal judge in New York ruled last week that police did not need court authorization when tracking Moran from afar. "Law enforcement personnel could have conducted a visual surveillance of the vehicle as it traveled on the public highways," U.S. District Judge David Hurd wrote. "Moran had no expectation of privacy in the whereabouts of his vehicle on a public roadway."

Last week's court decision is the latest to grapple with the slippery subject of how to reconcile traditional notions of privacy and autonomy with increasingly powerful surveillance technology. Once relegated, because of their cost, to the realm of what spy agencies could afford, GPS tracking devices now are readily available to jealous spouses, private investigators and local police departments for just a few hundred dollars.

Not all uses are controversial. Trucking outfits use GPS boxes to keep track of their drivers' locations, and companies sell software to dispatchers that instantly calculates which taxi is closest to a customer. OnStar uses GPS tracking to provide roadside assistance to owners of many General Motors vehicles.

What's raising eyebrows, though, is the increasingly popular law enforcement practice of secretly tagging Americans' vehicles without adhering to the procedural safeguards and judicial oversight that protect the privacy of homes and telephone conversations from police abuses.

"I think they should get court orders," said Lee Tien, staff counsel for the Electronic Frontier Foundation. "We're in a world where more and more of our activities can be viewed in public and, perhaps more importantly, be correlated and linked together."

GPS devices work by listening for radio signals from satellites and calculating how long the signals take to arrive.

The result of that calculation provides a highly accurate estimation of latitude and longitude. Depending on the type of GPS tracker, that information is beamed back to an eavesdropper's computer through the cellular network or quietly recorded and divulged when the device is retrieved a few days or weeks later.

Voluntarily agreeing to automotive GPS tracking can be a bargain for some consumers. Progressive Casualty Insurance began a pilot project in Minnesota last year that embeds GPS devices in a customers' vehicles and offers insurance discounts based on where and when cars are driven.

Norwich Union, the United Kingdom's largest auto insurer, has experimented with a similar "pay as you drive" program involving 5,000 customers. Hertz has implanted GPS trackers in all of its rental cars, and trucking companies have used similar systems for years.

GPS tracking systems are becoming cheap enough--the prices have dropped by about 50 percent in the last few years--that they've become attractive methods for tracing the whereabouts of teenagers and spouses. In 2003, South Carolina police thought they had discovered a bomb under a vehicle, but it turned out to be a GPS bug planted by a man's wife. In another case, a man in Colorado was convicted of tracking his wife with a GPS bug after she began divorce proceedings against him.

Solving crimes
GPS devices have been used to solve crimes from the petty to the heinous. Massachusetts police recently nabbed the driver of a snow removal truck who exposed himself at a Dunkin' Donuts, thanks to the Massachusetts Highway Department's requirement that state contractors outfit their trucks with GPS locators.

In 2000, when William Bradley Jackson called Spokane County, Wash., police to report that his daughter had vanished from the front yard that morning, detectives were immediately suspicious. Jackson seemed unusually nervous, and blood stains were discovered on his daughter's sheets.

Eight days later, after desperate searches failed to locate 9-year-old Valiree, detectives won court approval to secretly attach GPS tracking devices to Jackson's two vehicles.

The tactic worked; the GPS bugs led police to Valiree's shallow grave in a remote, dense forest about 50 miles from Spokane. The case ended in a murder conviction and 56-year prison sentence.

Complicating the privacy risks of tattletale cars is a pair of U.S. Supreme Court cases decided two decades ago. Those cases, U.S. v. Knotts and U.S. v. Karo, established that police don't need court approval to track suspects through a crude radio beeper.

In 1999, the 9th Circuit Court of Appeals invoked that logic when deciding that federal agents did not need a court order to slap a GPS tracker on a truck owned by a man suspected of growing marijuana. "In placing the electronic devices on the undercarriage of the Toyota 4Runner, the officers did not pry into a hidden or enclosed area," the court ruled, saying the bug did not violate the Fourth Amendment's prohibition against unreasonable searches and seizures.

Privacy intrusion?
A handful of courts have veered in the other direction, saying GPS technology is so powerful and can reveal so much about a person's life that it requires strict judicial oversight.

The "use of GPS tracking devices is a particularly intrusive method of surveillance, making it possible to acquire an enormous amount of personal information about the citizen under circumstances where the individual is unaware that every single vehicle trip taken and the duration of every single stop may be recorded by the government," the Washington Supreme Court said in the Jackson murder case in September 2003. "Citizens of this state have a right to be free from the type of governmental intrusion that occurs when a GPS device is attached to a citizen's vehicle...A warrant is required for installation of these devices."

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Some legal scholars fear that when the U.S. Supreme Court eventually weighs in on GPS tracking, it will side with police over privacy. "Unless it changes its view, it's unlikely that the court will think the same way as the Washington Supreme Court," said Dan Solove, a law professor at George Washington University. "The court has a very narrow and crabbed understanding of privacy. If something's not totally secret, you don't have a reasonable expectation of privacy."

GPS tracking--even when bugs are installed by police armed with a court order--can be imperfect. One bug used by police to track convicted murderer Scott Peterson sometimes developed glitches that showed him driving at about 30,000 miles per hour. Judge Alfred Delucchi ruled the data could be admitted during Peterson's trial, which appears to have been the first such decision in California.

Even with the occasional glitches, police see great potential in GPS tracking systems, like OnStar, that are built into more expensive cars--and that most people believe will be activated only in emergencies. In one North Carolina case, police used the built-in OnStar system in a 2000 Chevrolet Suburban truck to locate it and arrest the driver, who had bought it with a fake certified check.

An even more creative method of vehicle tracking arose when the FBI used such a system for audio eavesdropping. OnStar and other remote assistance products permit passengers to call an operator for help in an emergency. The FBI realized the feature could be useful for bugging a vehicle and remotely activated it to eavesdrop on what passengers were saying. (The 9th Circuit shot down that scheme in 2003, on the grounds that it rendered the system useless in emergencies.)