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Supreme Court Considers GPS Cases and the Future of Privacy

The views expressed are those of the author and are not necessarily those of Scientific American.

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If, in the early 1980s, the U.S. government had proposed a new crime-solving program requiring every adult to carry a small device that not only performed location tracking but also recorded the phone numbers of all recent contacts, opposition would have been swift and indignant.  Such a proposal would have been socially, politically and legally untenable given the standards of the day. Yet, by using mobile phones and GPS receivers, we are opting into systems that routinely gather our location data and often much more.

The question of whether police need a warrant to affix a GPS tracking device to a suspect’s vehicle has made it all the way to the Supreme Court, which begins hearing arguments today. A ruling is expected in the spring.

This case is important because some of the most profound questions relating to privacy in the 21st century turn directly on the handling of the information associated with mobile devices. It is an issue that is complicated because technology and cultural expectations regarding privacy are changing so quickly. The legal landscape related to privacy and mobile devices is complex, contradictory, and evolving.

In the United States, for example, the Ohio State Supreme Court ruled in December 2009 that warrantless search of the contents of a cell phone during an arrest was generally prohibited by the Fourth Amendment. In January 2011, the California State Supreme Court reached the opposite conclusion, and California’s Governor recently vetoed legislation that would have in effect overturned that ruling.

The location tracking information embodied in the list of cell sites to which a particular phone transmits is another area of legal divergence. An August 2010 U.S. District Court ruling held that cell site information could not be obtained without a warrant. However, in October 2011 a different US. District Court reached a different conclusion, stating that a warrant was not required for obtaining cell site information because, among other things, the resulting data provided “only an approximate position from which a user placed a call.” And there’s the case now before the Supreme Court on the constitutionality of warrantless use of a vehicle-mounted GPS tracking device to perform surveillance of a suspect.

Technology is changing so fast that assumptions used to frame legal rulings can be outdated not long after the ink is dry. As anyone who has used the newest smartphones can attest, the Ohio State Supreme Court’s 2009 statement that cell phones are “are still, in essence, phones, and thus they are distinguishable from laptop computers” now sounds quaint. The belief expressed in the October 2011 court ruling that cell site information only provides approximate location information is already becoming obsolete as wireless network providers continue to upgrade their networks with higher density, smaller cell sites to support increased data traffic. In areas of high population density, cell site information acquired using these emerging networks will often deliver location accuracy rivaling that of GPS.

Rather than tying privacy standards to ephemeral technology trends, it is better to go straight to the end game: In a world in which our mobile devices can track our location to within feet and can store and access essentially every piece of information relevant to our lives, how can privacy be protected? And, equally importantly, we must recognize that there is another side of this issue that bears directly on the ability of governments to ensure the safety and well being of their citizens. Privacy can be exploited by terrorists, human traffickers, identity thieves, and other criminals to mask illicit activity and to confer anonymity, from where it is only a short hop to impunity.

The cold, hard truth is that we can maximize privacy at some cost to national and individual security or we can maximize security at some cost to privacy. We can not simultaneously maximize both. What we can do, however, is acknowledge the magnitude of the challenge facing those charged with proposing, enacting and interpreting laws related to mobile phone privacy. A dialog conducted with a recognition of the many nuances involved will go a long way towards ensuring that the solutions we end up with, imperfect though they will inevitably be, reflect the very legitimate concerns of both the privacy and security communities.

Image: Artist Interpretation of GPS satellite, image courtesy of NASA (Wikimedia Commons)

John Villasenor About the Author: John Villasenor is a nonresident senior fellow at the Brookings Institution and a professor of electrical engineering at UCLA.

The views expressed are those of the author and are not necessarily those of Scientific American.

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  1. 1. Rev.Corvette 9:48 pm 11/8/2011

    Thank you Scientific American and author John Villasenor for this timely and interesting article. Speaking of the challenges and nuances this issue involves, I suggest whether we like to admit it or not All Cell Phone Users will share the very legitimate concerns of both the privacy and security communities. This is an issue that has such far ranging consequences it is difficult to fully comprehend, let alone legislate and enforce.

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  2. 2. joeiii63 2:11 am 11/9/2011

    It’s really not that complicated at all. The fact of the matter is that whenever questions of privacy vs. security arise there is only one point of view worthy of consideration:

    “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”
    Benjamin Franklin

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  3. 3. Mistamarley 2:54 am 11/9/2011

    Cellphone’s were supposed to do what again? Oh yea, cellphones gave us the ability to communicate with one another just about any where in the world. Albeit, cellphones slowly eroded our humanity as the technology became ever more powerful and efficient. Remember! These things increase our risk of cancer, distract us in many ways and collect too much information about us.

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  4. 4. SimpleSense 7:01 am 11/9/2011

    There’s a bigger elephant in the room. The commercial aspect of privacy needs to be dealt with. Companies, such as Google, which are working on software to literally ‘listen’ to people in their homes, in order to target adverstising; All of the internet cookies that track everywhere you go on the internet; the ‘permanent’ tiny RFID chips on all products that companies refuse to add a ‘kill switch’ to after you have purchased the product (it was discovered that they intended literally to be able to tell what is in your home); the data that is transmitted via TiVo/cable boxes, and increasingly computers.

    It is really getting way out of hand. There should be a big ‘Opt Out’ front and center for all consumers to be able to say that they do not any of their information sent to ANYONE (not just the government). The default should be NO information is sent, unless the user specifically ‘Opts-In’, not the other way around.

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  5. 5. JamesDavis 9:33 am 11/9/2011

    It started with Bush when he started infringing on our 1st Amendment Right with e-mail invasion. We all knew what evil this way was coming and we still allowed it and even kept it in office for two terms. … Now look what big brother is doing. We cannot depend of this conservative Supreme Court to do the right thing in behalf of the people because it was the Supreme Court that allowed this to happen in the first place, and the court that allowed this to happen is still in place.

    We, the people, can stop this any time we want. Demand that our cell phone manufacturers and carriers implement a device in the cell phones and iPads that prevents hacking. If Linux Software can make their software 97% hack proof, so can our cell phone manufacturers. We can enforce this by only buying cell phones and going with cell phone carriers that have this device in their phones and offer protection through their carriers against big government intrusions. If you do not demand this, the Supreme Court will not.

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  6. 6. Gatnos 10:16 am 11/9/2011

    The Fouth Amendment to the US Constitution is clear: “The right of the people to be secure in their persons, houses, papers, and effects aginst unreasonable seaches and seizures shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” These words have served us well for over 200 years, despite advances in technology. Simply put, if law enforcement wants to conduct a search, they first must obtain a warrant. This requirement (an execution of the balance of powers) may be an inconvenience, but has not hampered the enforcement of the law. Advancement of technology does not erase these words. Simply because enhanced methods of investigation exist, does not in any way negate the rights of the people. Liberty is the issue, not convenience. As Ben Franklin once said: “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”

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  7. 7. outsidethebox 2:29 pm 11/9/2011

    Does a policeman who keeps you under surveillance with a pair of binoculars, because he wants to stay distant and unobserved, need a warrant? I’ll grant you binoculars aren’t cutting edge technology but they are technology. The idea that we are going to “freeze” what is needed to observe or track a person without a warrant as technology continues to leap forward – well its an idea out of the 19th century not the 21st.

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