Feds Tell Supreme Court They Should Be Able To Stick A GPS Device On Your Car Without A Warrant

from the 4th-amendment,-what's-that? dept

In the federal government’s apparent ongoing quest to stamp out any remnants of the 4th Amendment, the administration has now officially petitioned the Supreme Court to let it stick GPS devices on cars with no warrant. This seems like the sort of case that the Supreme Court will actually be interested in hearing. That’s because a variety of federal courts have ruled that it’s legal to put a tracking device on your car without a warrant… However, last summer, the DC Circuit appeals court said that such GPS tracking, if done for a long time, crosses the line and becomes illegal. The standard the court used was pretty vague, but now there’s something of a circuit split, and that’s what generally interests the Supreme Court.

Either way, the government’s position is clear: it shouldn’t need a warrant to track you. The feds seem to be playing a bit of a questionable game with your privacy here. They claim that you have no reasonable expectation of privacy in your daily movements. To some extent that’s true. If you’re out in public, and people can see you, then it’s not private. But the real question here is somewhat more complex: if you don’t see anyone following you, do you have an expectation of privacy in your long-term aggregate movements? I would think there’s a much stronger argument there. I would think that just being spotted in public, or even followed in public, is reasonable as there’s no real expectation of privacy. But the calculus may, in fact, change when we’re talking about the aggregate information of pretty much all of your daily movements over a long term… especially when the person might never realize that anyone is watching them. In such situations, it seems like there is an expectation of privacy about that aggregate info.

Other than the DC court, however, most courts haven’t recognized that difference between snippets of daily movements and the aggregation of daily movements. If I had to guess, I’d say that the Supreme Court won’t recognize the difference either, and yet another prong of the 4th Amendment will disappear forever.

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Comments on “Feds Tell Supreme Court They Should Be Able To Stick A GPS Device On Your Car Without A Warrant”

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HM says:

Re: This is getting really ridiculous ...

I know cellphone jammers are illegal in the US, not sure about gps but i would imagine so. I had a friend that had concocted a plan to make a cellphone jammer and bring it with him anytime he went to a movie theater. In the process of designing such a device he found a foreign company that was already selling personal, hand-held cell jammers. Looking into it further we saw that not only was it illegal to use these in the US but it was illegal to possess it.

IANAL, it was a few years ago and we were just kids with too much time on our hands and an internet connection but I would be surprised to learn that you could now possess such a device in the US

aldestrawk says:

Re: Re: Re: This is getting really ridiculous ...

I don’t think mere possession is outlawed. It looks like you can’t operate or sell such devices. Title 47 of U.S.C. is applicable and is very much oriented towards operation. They can require forfeiture of the equipment if you do operate ti.


Chronno S. Trigger (profile) says:

Re: Re: Re: This is getting really ridiculous ...

This is where my question comes in. If the FBI breaks into my car and modifies it without my knowledge or consent, is that new modification mine?

Let’s take the FBI out of the equation. If my neighbor, without my consent, takes the door off my Jeep and replaces it with a door from a Chevy Impala, am I legally allowed to take it back off and throw it away (or give/sell it to someone else)?

Frankz (profile) says:

If you’re out in public, and people can see you, then it’s not private.

I agree with that.

But the real question here is somewhat more complex: if you don’t see anyone following you, do you have an expectation of privacy in your long-term aggregate movements?

I don’t think it should be about whether or not it’s long term following you or not. You’re still out in public, so it’s still not private.
I think it should be about police actually doing something to / putting something on, your car. That’s a completely separate and different issue than just being able to see you out in public.

Berenerd (profile) says:

Re: Re:

there is a difference though.

Your case:
Talking in public you can not expect privacy when you have others around you.

GPS tracking of your car is different..

Other case: You are talking and some guy in a black suit glues a megaphone to your mouth.

now to take it a little further…
you have this megaphone attached to your mouth and you have no idea until you go to take a sip of that coffee you bought. Oh those delicate flavors of caffine and coffee…oh crap, lets take this megaphone off so you can drink it…BAM! Obstruction of justice.

I don’t know of this happening yet, but I bet it will happen. Some poor person removes it not knowing what it is or who put it there or why, but hours later these men in black come knocking on the door asking for their equipment back and telling you that, despite them not having a reason to do so, you are now being charged with obstruction of them not finding anything to charge you with…

Hephaestus (profile) says:

Re: Re: Re:

“I don’t know of this happening yet, but I bet it will happen. Some poor person removes it not knowing what it is or who put it there or why, but hours later these men in black come knocking on the door asking for their equipment back and telling you that, despite them not having a reason to do so, you are now being charged with obstruction of them not finding anything to charge you with…”

Actually a man had the FBI do something similar a couple months back.

scarr (profile) says:

Help me understand this better

I’m conflicted on this issue. Part of me agrees that it should require a warrant, because it feels like an invasion of privacy. Another part of me recognizes that a GPS isn’t much different than a robot cop, who could be assigned to follow you 24/7.

Mike’s counter to the latter view is that if you know you’re being followed, you might act different, and therefore it’s ok when it’s people following you. That presupposes that you notice that you’re being followed and/or the people following you aren’t very good at being covert.

Provided that it’s only tracking your movements in public, how exactly is a GPS different from a really good cop, in this regard?

Gordon (profile) says:

Re: Help me understand this better

Because the basic problem here isn’t if they are being good at following you or not (though that plays into the fact that they’d actually have to WORK at it to keep up and or observe), but weather they should be allowed to set the GPS tracker without proper warrant.
Being able to track you for no apparent reason isn’t right no matter what the government thinks. The 4th amendment states that pretty clearly.

Everything I just said…..plus, It’s just one more example of the Govt. trying to do what it does best, looking for results without actually doing any work.

My 2 cents


scarr (profile) says:

Re: Re: Help me understand this better

Thanks for responding, but I’m still not convinced. On your two points:

1) Do they need a warrant to track you in person? If so, excellent point, and I agree. If not, then there is precedent for not needing a warrant to track someone.

2) Needing a person to “work” instead of having a machine do it seems like a weak argument. No doubt the gov’t is lazy, but I support automation of all sorts of other processes. Why should this be excluded?

Greg G (profile) says:

Re: Re: Re: Help me understand this better

They should need a warrant in order to attach any device to anything I own.

I own my car, therefore you have to get my permission to attach something to it… unless you have a warrant issued by a state or federal court specifically stating what device is to be attached, and specifically stating to which vehicle said device is to be afixed to.

If you don’t have a warrant, and you still want to track my movements, you’d better have someone following me.

Steve says:

Re: Help me understand this better

A good cop costs money every hour he/she is following you AND takes a valuable resource off out of the general pool. Because of that relatively few people are actually under surveillance 24×7. It’s very expensive and unless the police force thinks they can get something really good by doing it they won’t.

GPS units are ridiculously cheap. There’s almost no cost per hour of surveillance. Attaching a GPS unit to a vehicle doesn’t effect the pool of officers assignable to other cases.

There’s nothing stopping the government from sticking a GPS tracker on everyone.

Len says:

Re: Help me understand this better

“Another part of me recognizes that a GPS isn’t much different than a robot cop, who could be assigned to follow you 24/7.”

aka “robo-tapping”

On that note; Just because my phone conversations are trasmitted over public lines doesn’t mean the authoritizors have the right to listen in 24/7 with no warrent or probable cause…

Secondly, we may have to add a line to the 4th amendment that states “thou shalt not collect aggregated data on a US Citizen without probable cause and a phatty warrent.”

Thirdly; Can a cop literally and legally follow somebody around 24 hours a day with the intent to decern criminal activity without a some kind of probable cause? Fucking robots shouldn’t be allowed to be cops, because it’s essentially doing the work for somebody. If my name is in a system that has a device which does investigative work for somebody by following me around through GPS with the intent to find out if I am a criminal based upon the data gathered. Well, without probable cause that I am committing a crime… I would describe that as an illegal search and seizure.

F the police.

FM Hilton (profile) says:

I would not be surprised if the SC actually ruled against this-they’re so unpredictable that nobody can tell what they’ll rule against next. One day it’s ok for the Westboro Baptist Church cult to protest their idiocy at funerals, and next it’s not ok for the Feds to track you on your emails.

“It is time for someone to build a short range GPS and cellphone detector with built in jammers for both.”

BTW, it’s illegal to have jammers on phones, too.

zegota (profile) says:

Re: Re:

I get what you’re saying, but the Westboro case is not a good example of unpredictability. It’s a clear-cut example of 1st Amendment rights protecting even offensive speech, and it had agreement from both wings of the court.

I could see the SC striking this down as well, but in the past, the court has ruled pretty strongly in favor of police power, so I’d still expect them to uphold the warrantless tracking.

Christopher (profile) says:

Re: Re: Re:

No, it wasn’t. The Westboro case was an incidence of a non-First Amendment right being created. I do NOT have the right to use my First Amendment to harass someone IN REAL LIFE and make their life difficult. I do have the right to write letters to other people about them and put them in newspapers and on the internet saying that I disagree with someone.

Michael (profile) says:

A couple more issues with it

I am ok with someone being trailed 24×7 by the police, but I think GPS tracking affixed to a car becomes a problem in at least a couple of situations.

What if the car itself is no longer in public? I assume they continue to track your car when it leaves public roads. Is it not a privacy issue if they are tracking me when I drive my truck onto my property in Vermont – and hundreds of feet from public land?

Also, what if the car travels outside of the US? Are authorities in other countries allowing tracking of vehicles on their roads by US authorities? That may not be a privacy issue as much as a jurisdiction problem, but it seems to me that affixing something to someone’s car and tracking them across the boarder is outside of the reach of US law enforcement.

I’m not a big fan of the GPS tracking on cars anyway. It tells law enforcement where your car is, but not who is driving it. That seems pretty problematic to me right from the start.

Anonymous Coward says:

Big Brother

The real problem is how it’s being “quietly” enforced like the other Draconian laws and no news dares to report it except sites like Slashdot and Techdirt. What’s worse is we can no longer call ourselves a Democracy. We are in a Police State, in the grip of Big Brother, and no one’s getting mad that police and government have shredded OUR privacy rights in only a few years. And the rest are next. I truly worry about the future, especially since we’ve handed it on a silver platter to the sheeple who remain ignorant of anything but their own reality shows.

Anonymous Coward says:

Another part of me recognizes that a GPS isn’t much different than a robot cop, who could be assigned to follow you 24/7.

At some point, though, a difference becomes a difference in kind. A 24/7 stakeout of a suspect is VERY expensive, and will only be used in the most important of circumstances, where law enforcement is already pretty darn close to nailing someone. They might not actually have a warrant, but it’s easier to justify a warrant than a round-the-clock stakeout.

Cheap GPS trackers can be sent on fishing expeditions to follow anybody you happen to not like in the hopes that you’ll find something to nail them for.

To refer to a previous discussion, standing outside the suspects apartment and listening for a few minutes is not a violation of privacy. Setting an automated recorder on their window sill might be another matter.

scarr (profile) says:

Re: Re:

As I mentioned in another response, I don’t see how automating duties to reduce costs is a bad thing. You make a fair point about it getting to a point where it could be blanketed everywhere, but I don’t know if that makes it illegal. If you could afford the manpower to do someone, and it’s legal, then I don’t see why replacing the human with technology inherently becomes illegal.

Am I missing something? I totally understand the matter of taste (“should we do/allow this?”), but from a pure legal standpoint, I don’t see where it could be knocked down yet.

PrometheeFeu (profile) says:

Re: Re: Re:

The issue isn’t really the technology. The issue is what they are doing with it. If they want to follow me, fine. If they want to build an automated who can follow me, fine. But if the cops hide in my trunk or ask if they can sit in my passenger seat, that is different. Furthermore, it appears that removing the device may be prosecutable. That is absurd. It’s the equivalent of the cop hiding in my trunk. I find him, tell him to get the hell out of there and then he charges me.

rww says:

Stalker - Terrorist - DHS - Local LEO: Synonymous

This erosion of our rights has got to stop. LEO?s must play by the rules, stop changing the rules, and start doing their due diligence.
They (both the LEO’s and the Supream Court Justices) also took an oath to uphold and protect the principles that the Constitution stands for. We need to start holding our elected officials accountable to the citizens. The highest law of the land is being razed to third world stature. Why do so few people care?

Anonymous Coward says:

I see this as a total corruption of privacy. It is not much of a step from this to just going ahead and getting Government Motors to tell them where the vehicle is going by looking at something like their OnStar program. Just because you don’t pay a fee, doesn’t mean it can’t be activated from their side. Especially since the hardware is already installed.

I am sure this is one of the reasons the cops all want Predators. Aerial drones can see you on private property without having to go on that property.

It’s not that I’m out doing something illegal, it’s that I resent the intrusion. Why should any person, not just myself, be subject to 3ʳᵈ world type surveillance?

But I guess with the way things are going, we are a 3ʳᵈ country aren’t we?

My 2?.

Landsknekt says:

Its a recording

Ok, what most of oyu are missing is that the GPS device is recording your actions. This is the same as a wiretap, recording your actions. This is clearly in violation of the 4th amendment and as such requires a warrant. Why do you think law enforcement has been running with its pants down when ever caught? They know its a violation, and now they are trying some quirky legal maneuver to try to say its the same thing. Its not.

Matthew says:

I seem to recall that in the past, people who have discovered GPS devices attached to their vehicles have gotten into trouble for removing them. (Or at least for removing them and refusing to give them back.) I don’t like invoking the slippery slope very often but in this case, it seems compelling. If the police can attach a device to your private property without a warrant and harass you if you remove it, how is that substantially different from requiring individuals to wear a GPS tracking device? (Don’t get me started on the abuse potential for ubiquitous GPS enabled SmartPhones.)

ofb2632 (profile) says:


What if the police GPS my vehicle, then i move it into my garage. They are now recording my movements inside my private property. That is a clear violation of my rights. Even if i have it parked in my private driveway, they are still invading my rights. If i go to a friends and park in my friends driveway, they are invading rights.
I know the police have a job to do, but removing the rights of law abiding citizens should not be on the list of things they (the government) should take away.
If the police suspect someone of committing illegal acts, get a warrant. It is that easy. If the suspicion is not up to warrant level, then you ARE invading the rights of the individual.

Anonymous Coward says:

Re: Privacy

“They are now recording my movements inside my private property. That is a clear violation of my rights. Even if i have it parked in my private driveway, they are still invading my rights. If i go to a friends and park in my friends driveway, they are invading rights.
I know the police have a job to do, but removing the rights of law abiding citizens should not be on the list of things they (the government) should take away.”

I agree with you 100%!

The gubmint, however, does not: http://www.wired.com/threatlevel/2010/10/fbi-tracking-device/

Brian Schroth (profile) says:

The government has so many holes in their case it’s ridiculous it ever made it anywhere.

1. Your car is your property. Even if it is legal to track your movement 24/7, the government does not have the right to deface your property.

2. Not everywhere your car goes is “public”. You can drive on private roads and private land. Since the device will not magically know the difference between public and private areas, even if it were legal to track everything done in public, this will inevitably track things done in private.

3. The idea that anything done in a public area has no expectation of privacy because “what’s public is public, duh” is absurd. Your cell phone broadcasts signals over public airspace- that does not mean your phone conversations can be listened to without a warrant. The ruling in Kyllo v. United States struck down this absurd idea that everything in public is public information, when it said that the heat emanating from a home, despite emanating into a “public” area, was still private information and reading it would be considered a search for 4th Amendment purposes.

All of these factors should make this case a decisive loss for the government, but somehow incompetent judges have botched it.

Mr Creosote says:

Law Enforcement: immune to feelings of shame?

The US “DoJ” and various law enforcement agencies are like corporations, unable to feel anything other than damage to their funding.

But what about the people in law enforcement? Don’t they feel shame at being nosy-parkers? Some of the snoops must feel “dirty” or “creepy” at having to do surveillance, right? So the people pushing warrantless GPS surveillance, which seems like a pretty clear violation of 4th Amendment rights, and therefore the current Supreme Court will find some way to weaken that protection, should cause humans in law enforcement to feel perverted, dirty or ashamed of their actions.

anymouse (profile) says:

Re: Law Enforcement: immune to feelings of shame?

They felt bad for a few minutes, then they looked at the TSA and said, “Nah, we’re all good, they are much dirtier, more perverted, and should be much more ashamed than us. So remember if anyone questions our actions, just say, we’re not groping your daughter and molesting your wife (unless you want us to), we’re just tracking your car.”

Will Sizemore (profile) says:

Oddly, I’m okay with all vehicles having a tracking system. Here’s why:

1) It will be easier to track stolen vehicles
2) It will be easier to locate vehicles with missing people AND potentially occupants under duress.
3) It CAN be used to help determine fault in a vehicular accident.

But it also can be used to track moving violations and issue more tickets, or to track private citizens who aren’t doing anything illegal and we shouldn’t be wasting our tax dollars on that.

My biggest concerns are the increase in spending AND the fact that if you find one such tracking device on your vehicle and you tamper with it or even remove it, you can be conceivably be charged with and found guilty of obstruction.

Should you find a tracking device, or any other device on your vehicle, what would be the proper course of action? Call the police and report an unknown device on your vehicle and demand that they have technicians remove it so that you can safely operate it?

I’m all for preserving our fundamental freedoms but I fail to see where this can lead to any real invasion of privacy, unless the movement data was leaked to other private citizens, or worse, to advertising and marketing firms.

Greevar (profile) says:

It's Vandalism.

My car may be in a public place, but that doesn’t give anyone carte blanc to just stick whatever they please to it.

What if someone found the device and thought it was a bomb? They’d probably run screaming to the police that there’s a bomb on their car, causing mass panic when the bomb squad comes out to check it.

Do they have to get a warrant to plant tracking devices on my person? If so, they should be required to do so with my car.

Nevertheless, this is just about law enforcement wanting to make their jobs easier rather than doing their job. What’s their job? To uphold the law and protect the public. Is the public protected by ignoring the 4th amendment like this? I think it’s the exact opposite.

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches 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.”

Tracking a car by GPS is, in essence, a violation because it is broadcasting your movements to everyone. Such surveillance is above and beyond what anyone in public could reasonably be privy to without actually following them, except anyone in public following you could be confronted, where the GPS tracking denies you that right.

Anonymous Coward says:

I do not think there is any strict expectation of privacy from being followed.

However, people have had, up until now, the realistic expectation that it’s not practical to be followed unless the police have a damned good reason. Without GPS trackers, it takes considerable manpower to stake out someone and track their movements. So in essence, people have assumed they will not be tracked.

With the approval of GPS trackers, it would be possible to track anyone and everyone nearly indefinitely. This is clearly a different reality than the situation that existed previously and a much more troubling one.

V says:



The government should be able to:

* Track all people, all the time for any reason
* Seize anything from anyone for any reason
* Interrogate anyone for any reason at any time
* Execute anyone for any reason at any time

Why bother with pesky laws or the constitution… or even oversight…

Our forefathers would become terrorists if they suddenly found themselves in “their” country… what we have now is far, far worse than the injustice they experienced back in Colonial times.

paulclarksaintjohn (profile) says:

Lets Reverse This

How about every federal vehicle be required to have a GPS tracker device put on it and the results uploaded to a public site that overlays the info, both current and historic, on google maps?

If the feds don’t need a warrant, then why shouldn’t anyone else.

And since it is in the common good to know how the federal employees are spending their time and using their assigned vehicles, these seems like a good way to cut down on abuse.

Tracy says:

Only Legal If...

The ONLY way this could be legal is if the GPS unit was installed BEFORE a consumer purchased the vehicle as the vehicle was not theirs at the time. If they try to install such a unit AFTER a consumer purchased the vehicle then it is illegal without a warrant. You cannot alter MY property after I have purchased it. Something similar happened with Toshiba, I believe it was them, and installing key logging software on laptops it sold to consumers.

Nraddin (profile) says:

Isn't that B and E or vandalism?

At the very least they are adding weight via the device to the car which degrades the performance which I think would be a violation of my property rights, but most times they would be breaking into and/or searching the car which is a felony.

Personally I have no problem with the police putting the tracker on my car, but the tracker should become mine (They gave it to me intentionally) and the officer that performed the act should be charged with vandalism and if anyone else helped plan the act they should all be changed with criminal conspiracy, but the tracking itself should be fine as I would be in public….:)

ComputerAddict (profile) says:

Re: Isn't that B and E or vandalism?


Just because someone leaves something on your property does not make it yours. It could be considered “lost” property, “mislaid” property, or “abandonded” property each have their own process (and lengths of time you need to hold it for them) to claiming ownership. Most likely your gonna do something fun like attach it to a cargo ship before these time periods expire.

Christopher (profile) says:

Re: Re: Isn't that B and E or vandalism?

Frankly, if someone ‘loses’ or ‘mislays’ or ‘abandons’ property, they aren’t going to be back for it if they are not back for it within 48 hours.
An exception would be if it has a name and address etched on it.

After that amount of time EVEN IF THE THINGS IN QUESTION CAN BE CONNECTED WITH A CRIME, if you want to claim them as your own, they should be yours.

Will Sizemore (profile) says:

As noted in the responses to the many Techdirt articles/blogs regarding the TSA, operating a motor vehicle on public roads is a privilege and not a right. Like it or not, when we drive on a city, county, state, federal, or international road, the police at the appropriate echelon have the authority to observe us, enforce traffic laws, enforce proper permit and licensing to ensure public safety, among other things.

I agree that this is a violation of the 4th Amendment, at least in spirit, but do the risks outweigh the benefits?

Perhaps what would make this more appropriate, is for said GPS to be required to be disabled upon entering private property, regardless of who owns or leases it the property or the vehicle being tracked. If this passes and private citizens place, on their properties and in a way so as to only disable GPS within the limits of their own property lines, devices to disable, jam, and/or scatter, then perhaps they also could not be prosecuted for obstructing justice.

Although, Police, Fire, and Rescue agencies may decline to provide service, citing that they too would be cut off from their organizations while on those properties…

btr1701 (profile) says:


I don’t really understand the logic the DC court has used here.

They readily admit that I don’t need a warrant to physically follow you around, but they say I do need one for a tracker because that violates privacy. But it’s much *more* a violation of your privacy for my to physically surveil you. I can get all sorts of additional information doing that which a GPS won’t provide (who you meet with, what stores you go into, what you buy, what pay phones you use, etc.).

So why would I need a warrant to do the thing that invades your privacy *less* and not need a warrant to do the thing that invades your privacy *more*?

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