The Car as Informant

GPS technologies can tell the police where you are--but what about your right to privacy?

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Steven Cherry: Hi, this is Steven Cherry for IEEE Spectrum’s “Techwise Conversations.” This is show number 68.

About 12 years ago, the head of Sun Microsystems famously said, “You have zero privacy anyway. Get over it.” But I think even he would be surprised at the extent to which we can now be tracked, both online and in real life. Online, Facebook was in the news this week. An Australian computer programmer claims that even after you log off it, the social network still has the capability to track you as you surf the Web. Company officials say they aren’t, in fact, doing that.

In real life, the car navigation and emergency response service OnStar revealed that it was tracking cars even after their owners cancel their subscriptions—recording where you drive and stop for gas, the diagnostics that the car itself collects, and the speed, direction, and other information generated at the time of an accident.

You can opt out of OnStar, or even have its sensors removed, but nowadays law enforcement officials can put tracking devices on your car without your knowing about it. If that sounds like it might be a violation of the U.S. Constitution’s Fourth Amendment protection against unreasonable searches, you’re not alone. That very question will be raised in a court case slated for argument at the U.S. Supreme Court in November.

My guest today is Catherine Crump, a staff attorney with the American Civil Liberties Union’s Speech, Privacy, and Technology Project.

Catherine, welcome to the podcast.

Catherine Crump: Thanks. Good to be here.

Steven Cherry: Catherine, the case itself, U.S. v. Antoine Jones, is pretty interesting. Antoine Jones was a nightclub owner in the District of Columbia. He and a codefendant were convicted in 2008 for possession with intent to distribute a large quantity of cocaine. Tell us about the case.

Catherine Crump: Sure. The case is really interesting and it’s of particular interest because the government, to gather evidence about Mr. Jones, attached a GPS device to the undercarriage of his car and kept it there for 28 days to track his movements. When Mr. Jones was ultimately taken to trial, he moved to suppress the evidence arguing that attaching a GPS device to his car and tracking him everywhere he went for 28 days violated the Fourth Amendment’s prohibition on unreasonable searches and seizures. And the D.C. Circuit, the appeals court right below the Supreme Court, ultimately agreed with that conclusion.

Steven Cherry: Now, in this case the question before the court is, and I’m quoting from the petition “whether the wireless use of a tracking device on respondent’s vehicle to monitor its movements on public streets violated the Fourth Amendment.” In fact, the police did get a warrant but it authorized them to put the tracking device on the car within 10 days, and the police didn’t do it until the 11th day, and it authorized it in the District of Columbia, and the police actually placed it while the car was in neighboring Maryland, so it’s being called a warrantless use. Would a warrant have made a big difference to the constitutionality of what the police did?

Catherine Crump: Yes. The Fourth Amendment has a warrant requirement. Whenever the government conducts what’s a Fourth Amendment search, it needs to have a warrant based on probable cause, and the reason for that is it supports oversight, right? It puts a neutral magistrate between the power of the government and you so that there is some other person who reviews what the police are doing and makes sure there’s a really good reason that you should be subject to that form of tracking, so warrants have a really important role to play here.

Steven Cherry: So, basically the police are saying. “No, actually we don’t need a warrant in order to place a GPS tracking device on somebody’s car.”

Catherine Crump: That’s right. The government has taken a fairly extreme position in this case. It argues that no warrant is necessary, and that it doesn’t need to go to a judge, and that it’s perfectly free to attach a GPS device to someone’s car for any reason at all for as long as it wants and can attach these devices to as many people’s cars as it likes. So it argues for no court supervision and no imposition of a constitutional standard whatsoever.

Steven Cherry: Do you have a prediction about what the court is going to think about this?

Catherine Crump: I don’t have a prediction. You know, I hope the court reaches the conclusion that placing a GPS device on someone’s car and tracking them, potentially for a long period of time, is a search under the Fourth Amendment and requires the government to get a warrant. Knowing where someone goes can reveal a great deal of information about them, and many judges who have ruled on this have observed exactly that. You can learn every time someone goes to a gun range or to church, you can figure out where they worship, you can figure out where they go to the doctor. And when you put all this information together, you end up with a really comprehensive picture of what someone’s life is like. And we believe that the Fourth Amendment doesn’t allow the government to do that, to get that kind of detailed personal and private information about someone without first getting a warrant and demonstrating probable cause to a neutral judge.

Steven Cherry: Now, you mentioned to me in an e-mail that in some ways the case is going to be of limited help to privacy advocates even if Jones wins.

Catherine Crump: Well, I think it’s a little too soon to say what the ramifications of what the opinion will be, because it just depends how broadly the court decides to write whatever it writes. But I do think that this particular scenario is a little bit anachronistic, because the police actually went and physically installed a GPS device on someone’s car. First of all I think most of us in 10 years are going to have, you know, onboard navigation systems, so it’s not going to be necessary to install anything on someone’s car. You can just go to a company, OnStar or someone else, and get the information from them. Second of all, cars are one way to track people, but the best way to track someone is through their cellphones. Cellphones double as tracking devices and people carry their cellphones with them wherever they go—in their purses or their pockets—and they actually can give a much more detailed picture of where someone goes than just tracking their car.

Steven Cherry: Yeah. One thing I found pretty wild about the Antoine Jones case is all the other stuff the police did as well. According to the petition, they conducted visual surveillance, they installed a fixed camera near respondent’s nightclub, they obtained pen register data showing the phone numbers of the people with whom Jones communicated by cellphone, and they secured a Title III wiretap—wire-intercept—for his cellphone conversations themselves.

Catherine Crump: Yeah. He was certainly a guy subject to a lot of different surveillance. But these days the government has a lot of different tools and techniques available to it. But I think it’s important to remember that the question isn’t whether or not the government can ever engage in this form of surveillance. Everyone agrees that surveillance can be totally appropriate, including GPS tracking. The question is whether or not the government has to be subject to court supervision when it does that to make sure it’s doing it for a good reason, and that’s really what this case is about.

Steven Cherry: Now, the standard for the pen register data is actually a lot lower than it is for intercepting actual phone calls, right? The pen register data is just the information about the phone numbers that you’re actually communicating with, not the conversations themselves.

Catherine Crump: That’s right. In the telephone conversation the Supreme Court held back in the 1970s that you don’t have a Fourth Amendment interest in the telephone numbers you dial. And Congress reacted to that actually by passing a law saying that the government at least needs to go to a court and show that the phone numbers it wants to get—who you’ve called—is at least relevant to an ongoing investigation.

Steven Cherry: Now, in some ways it would seem that like the GPS data just the co-ordinates of where you are is a little bit like the phone numbers and so maybe the standard for that should be much lower than the standard for surveillance.

Catherine Crump: I don’t agree with that and the primary reason I don’t agree with that is because I think where people go can be much more revealing, and particularly when the surveillance takes place over a long time, you can really paint a detailed portrait of what someone’s life is like. The reason though that in the phone number context the court held that you didn’t have a privacy expectation and got no Fourth Amendment protection for that was because you voluntarily revealed the phone numbers that you dialed to your phone company, right? You know when you dial a phone number that your phone company is going to know what that is and therefore you don’t have a privacy expectation there. I don’t think it’s the same thing when people drive their car, right? I don’t think you’re obligated to check under the undercarriage of your car to see if anyone’s attached a GPS device to it. I don’t think those things are equivalent.

Steven Cherry: But you have revealed to OnStar or Magellan or whoever your GPS information.

Catherine Crump: It’s true, and actually I think you’re raising an important point. Today the digital world has really changed the way a lot of us live our lives. Every letter that we write we used to send through the postal service. Now all of our correspondence is in the hands of companies like Google which has Gmail. We reveal our location information to companies such as OnStar, but at the same time I don’t think that means we’ve all given up Fourth Amendment privacy interests in our information. I think a different analysis is needed and that courts need to conclude that people can still have an expectation of privacy even if they do reveal their information to some people for some purposes, and I don’t think that’s a foreign concept, right? A lot of us think that things are private even if we do share them with some other individuals. When you go to your doctor you might reveal facts that you might consider private, but the fact that you tell something to your doctor, you don’t think that your doctor’s going to turn around and post on the Internet or sell it to a pharmaceutical company. Similarly, I think that just because OnStar may know where you go, that doesn’t mean that you want everyone to know that.

Steven Cherry: We do though seem to have lost the ability to be anonymous moving around the world. I mean I’m thinking, for example, also of—there’s some amazing imaging technology and photo recognition technology, there are nearly gigapixel photographs of crowds where you can zoom in and identify individual faces, and companies like Facebook are assembling what are in effect correlating names with people’s faces. Have we lost the ability to be anonymous?

Catherine Crump: It’s increasingly difficult to be anonymous in public. That’s true. I mean, we all have photographs of us available on Facebook now, or at least a large portion of the population does, and these technologies are really progressing quickly, so that soon it seems like it will be possible to recognize people by using possibly even just a standard digital camera that could be coordinated with some facial recognition technology. So I think these new technologies are raising hard questions about the degree to which law enforcement can use them to scrutinize you as you move around in public. And the question is, Are these new technologies just going to fundamentally alter the privacy that we traditionally enjoyed or is law enforcement now going to be able to subject us to these technologies whenever it wants? And I think that people have the right to move around in public without having their every movement tracked, and that courts need to establish rules that place limits on the ability of law enforcement agencies to use these powerful new technologies in ways that can invade people’s privacy.

Steven Cherry: So even if we can’t stop the Facebooks and the OnStars of the world, we could at least keep law enforcement at bay?

Catherine Crump: I think that’s right. You know one thing about companies is that to some extent we give our information over to them voluntarily and, second of all , the capacity of a company to impact your life negatively is limited, and I think you can draw a distinction between regulating companies and regulating the government. I mean, the government is the only business out there that can actually put you in jail and I think it has tremendous power, and for that reason you can justify regulating government power where you might leave corporations free to act.

Steven Cherry: So we may have zero privacy but maybe not zero governmental privacy.

Catherine Crump: Well, I hope we have privacy left in all realms of life, but I think we need to look particularly closely at the way government accesses data because of the power it can have over all of our lives.

Steven Cherry: Very good. Well, thanks a lot and I hope you’ll come back on the show in November when the court actually hears these arguments.

Catherine Crump: Well, I would love to do that. I think it’s going to be a fascinating argument. I think it is just the first of a series of arguments the court will confront in the coming years about how to apply the constitution in the face of new and increasingly powerful technologies. I think it’s going to be a fun argument to listen to and I’m looking forward to seeing what the court does with it.

Steven Cherry: Very good. Well, then I guess we have several “Techwise Conversations” in our future.

Catherine Crump: [laughs] Well, I hope so.

Steven Cherry: Thanks a lot, Catherine.

Catherine Crump: Take care.

Steven Cherry: We’ve been speaking with American Civil Liberties Union staff attorney Catherine Crump about the constitutionality of GPS tracking and about our diminishing ability to move about our world anonymously. For IEEE Spectrum’s “Techwise Conversations,” I’m Steven Cherry.

 [Editor’s note: After this interview was recorded, OnStar announced it would reverse its tracking policies]

This interview was recorded 27 September 2011.
Audio engineer: Francesco Ferorelli
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