Michael Tabman

Use of GPS by FBI and spouses: Legal or Invasion of Privacy?

In Crime and Security, Uncategorized on July 18, 2011 at 2:37 pm

The use of GPS tracking on vehicles has been in the news recently as two separate cases have come under scrutiny. The first case occurred in New Jersey where a woman installed a GPS on a vehicle she owned with her husband. She tracked his travels to confirm her suspicions of his infidelity. The court ruled this was legal. While most of the news coverage highlighted that this was a matrimonial matter, the ruling was based on the fact that the husband’s movement was tracked only while he was on public streets, so he had no reasonable expectation of privacy. Considering my earlier blogs about people getting arrested for videotaping cops, interestingly, the court’s decision in this case included the following: There is no liability under this tort theory “for observing [a plaintiff] or even taking his [or her] photograph while he [or she] is walking on a public highway, since he [or she] is not then in seclusion, and his [or her] appearance is public and open to the public eye.”

The next case involves the FBI placing a similar GPS device on a 20 year old student who is a US citizen, without a warrant. The Supreme Court will decide whether a warrant is required for such monitoring. Generally, the law has allowed this, if the installation occurred in a public place (i.e. the FBI did not sneak on to private property) and tracked the vehicle while it was on a public street, consistent with the court’s decision mentioned above. I recall using these devices when a vehicle would enter into a garage or other private area. At that point, we would stop monitoring the device and rely on physical surveillance.

While these two cases are similar, there is one important distinction. One involves only private citizens; the other involves the government acting against a private individual.

While tracking a vehicle on public streets is not as intrusive as wiretaps and other forms of surveillance, I think the government should be required to get a warrant. Government surveillance activities apparently are becoming more aggressive and frequent. I think a few checks and balances would be consistent with our system of justice and our reasonable expectations of privacy.

What do you think?

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