GPS challenges privacy rights

We're hurtling toward a day when it may be possible to pinpoint where anybody is at every moment. With so many people sharing the minute-to-minute details of their lives via social networks, downloading phone apps that allow friends to check their whereabouts, and buying global positioning systems that can locate their cars if stolen or crashed, what's happening may be more an enthusiastic surrender of privacy than a stealth invasion.

But it's one thing to voluntarily relinquish privacy, quite another to have it purloined by police. That's what officers do if they secretly attach a GPS device to someone's car without a warrant, bypassing the need to convince a judge the surveillance is justified.

The U.S. Supreme Court has agreed to decide whether the Constitution's prohibition against unreasonable searches applies to GPS devices. And there's legislation in Congress to require a warrant when they're used. Whether by court ruling or statute, a warrant should be necessary. Requiring police to convince a judge there's probable cause to believe a person has committed a crime before digitally tracking his or her movements is no impediment to good law enforcement. And it's an important safeguard of individual rights.

The issue is at the forefront because of the conviction of a Washington club owner for conspiracy to distribute cocaine. D.C. Metropolitan Police working with an FBI task force used the tactic to track Antoine Jones' car 24 hours a day for 28 days in 2004. He has challenged the constitutionality of the surveillance without a valid warrant. The police insist using a GPS device is no different from physically trailing a person, which doesn't require a warrant if done in public places, such as roadways.

But GPS devices allow prolonged surveillance without the cost and manpower for a traditional tail. That lowers the bar for their use. And the kind of surveillance used in the Jones' case is especially intrusive, because police can discern from patterns of activities things like whether a person is a bar-hopper, an unfaithful spouse, is getting medical treatment or associates with particular individuals or groups.

Federal appeals courts are split on whether that difference is significant enough to demand a warrant to preserve the Constitution's protection against unreasonable searches. So the U.S. Supreme Court announced last month that it will hear the case in its next term, which opens in October.

But the issue isn't confined to surreptitiously planted GPS devices. It's possible to track the location of cellphones -- even when they're turned off -- and there are no clear rules for government officials or others regarding accessing that information.

Telecommunication companies are unsure when they're required to share geolocational information with authorities. Customers are unsure if information regarding their location or movements can be sold to private companies, or even if they can have any expectation that another individual -- say a revengeful ex-spouse -- won't be allowed to use the technology to stalk them.

The nation needs some legal clarity.

Right now we have no right to privacy on information shared with a third party. For instance, authorities don't need a warrant to see bank or phone company records. But today, information in records kept by third parties, such as Internet service providers, includes email, websites visited, books read and lists of friends. The rules for searches need to be updated to reflect this new reality.

The Geolocation Privacy and Surveillance Act, a bipartisan bill introduced in Congress last month, is an attempt to provide guidance, at least on the police GPS issue. It would require the authorities to get a warrant, whether seeking tracking information from phone or Internet service providers or gathering it themselves from a covertly placed GPS.

It would create penalties for surreptitiously using an electronic device to track a person's movements -- for instance, that ex-spouse. And it would prohibit service providers sharing customers' geolocational information with other companies without their consent. It's a start.

But given the rapid-fire advance of digital technology, new devices with additional capabilities are sure to present new unanticipated ways to encroach on our privacy. It will take new rules to preserve old rights. hN