Posts Tagged ‘technology’

NY High Court Requires Warrant for GPS Tracking, But Offers No Guidance for Future Technologies

Tuesday, May 12th, 2009


In a lengthy decision today New York’s highest court ruled that police must get a warrant before they can put a GPS tracking device in a suspect’s car. In its ruling today, in the case of People v. Weaver, the New York Court of Appeals went out of its way to distinguish the U.S. Supreme Court’s ruling in U.S. v. Knotts, 460 U.S. 276 (1983).

In Knotts, the Supreme Court had said it was fine for law enforcement to put a rudimentary “beeper” tracking device inside a container of chloroform so that they could track its movements. Of course, technology has progressed since then. In today’s case, state police had slapped a GPS device known as a Q-Ball on Scott Weaver’s car, and left it there for 65 days. The device recorded in exact detail where the car went throughout that time, how fast it was going, essentially performing an uninterrupted physical surveillance.

The New York court said that, although the old technology was just an enhancement of ordinary surveillance, the new technology is just too invasive, and therefore requires a warrant before law enforcement can use it.

In getting there, the court spent a pleasant few pages outlining the evolution of Fourth Amendment law, reminding us that until at least 1928 it only protected searches of material property, and so intangible searches such as wiretaps required no warrant. Brandeis, however, wrote a dissent to that 1928 case that struck a chord, and soon American law had come to agree with him that:

The protection guaranteed by the [4th and 5th] Amendments is much broader in scope [than the protection of property]. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.

Olmstead v. U.S., 277 U.S. 438, 478-479 (1928)(Brandeis, J., dissent). Still, the U.S. Supreme Court didn’t really get around to adopting this view until Katz v. U.S., 389 U.S. 347 (1967):

the underpinnings of Olmstead and Goldman have been so eroded by our subsequent decisions that the ‘trespass’ doctrine there enunciated can no longer be regarded as controlling. The Government’s activities in electronically listening to and recording the petitioner’s words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a ‘search and seizure’ within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance.

It looks as if the Court of Appeals wanted to continue the evolution of Fourth Amendment law, at least in New York state cases. The Knotts case had analogized the beeper tracker to a powerful set of binoculars that merely assisted cops see something they were already looking at. But a modern GPS is far more than that. “GPS is a vastly different and exponentially more sophisticated and powerful technology that is easily and cheaply deployed and has virtually unlimited and remarkably precise tracking capability.”

From planting a single device, the court said, the police may now “learn, practically effortlessly… the whole of a person’s progress through the world, into both public and private spatial spheres… over lengthy periods possibly limited only by the need to change the transmitting unit’s batteries.” [That’s true. Indeed, when we used to run investigations involving GPS transmitters and eavesdropping bugs placed inside cars, they’d be set up to run off the cars’ batteries, giving them unlimited staying power.] Police can get instantaneous disclosure of indisputably private trips. Knowing where someone went tells you much more: their political affiliation, their religious community, their lovers, their associations, their activities, what they do and who they do them with.

That doesn’t mean the police shouldn’t be allowed to use this tool, but only that the potential invasion of privacy is now so great that it requires court approval before it can happen. And there will of course be exceptions to the warrant requirement, as in a kidnapping or other exigent circumstance.

There was nothing in the record indicating why the police in this case used a GPS, so there was no evidence of an exigent circumstance. It seemed to be little more than “a hunch or curiosity” that caused them to do it.

The court was careful to state that this only applies to New York state law. The U.S. Supreme Court hasn’t ruled on this yet, and neither have most of the Circuits. But the states are free to provide greater individual protections than those established by federal law, which is only a bare minimum rather than an exemplar.

New York isn’t the first to issue a ruling like this. Washington did it in 2003, as did Oregon in 1988. But that’s only two states out of fifty, and their jurisprudence is not quite representative of the rest of the country. Just last Thursday, for example, Wisconsin’s court ruled the opposite way. And the federal Circuit courts that have decided this issue have permitted GPS to be used without a warrant. And this case isn’t going to the Supreme Court, because it’s a state decision under the state constitution. So we wouldn’t go looking for this to become the law of the land any time soon.

This was a far from unanimous decision, as well. Judge Smith wrote for himself and two others that the court drew an artificial and unworkable line between the kinds of technology that are okay to use without a warrant, and the kinds that require a warrant. “The attempt to find in the Constitution a line between ordinary, acceptable means of observation and more efficient, high-tech ones that cannot be used without a warrant seems to me illogical, and doomed to fail.” This appears to ignore the U.S. Supreme Court’s warrant requirement for heat-sensing cameras that reveal marijuana-growing lamps which the police wouldn’t have seen with the naked eye.

But we do get Smith’s point, and it’s a valid one. The majority failed to set forth an actual underlying principle here for where to draw the line. Clearly, high-powered binoculars don’t require a warrant. Surveillance cameras on street corners don’t need a warrant. Unsophisticated “beeper” trackers don’t need a warrant. GPS trackers do need a warrant.

What if the police actually had a surveillance camera on every street corner, and used current software that enabled them to track not only vehicles but faces — would they still need a warrant to use GPS when they’d get the same information without a warrant by using the cameras? If so, why? If not, why not? The court has given no direction here to future technological advances. All it has done is say this particular technology needs a warrant at this particular point in time. That’s not a useful decision.

In a separate dissent, Judge Read argued that the ruling here imposes an unnecessary burden on police, and at the same time “handcuff[s] the Legislature by improperly constitutionalizing a subject more effectively dealt with legislatively than judicially.” Judge Graffeo joined both dissents.

We have to disagree with Read here. Interpreting the Fourth Amendment is so obviously more appropriate to the courts than to the legislature that we have to wonder why she went to the trouble of claiming otherwise.

She’s also wrong in that the ruling really doesn’t handcuff the police — not in real life. Again thinking back (only a couple of years) to when we were doing these kinds of investigations ourselves, we routinely got a warrant for GPS transmitters. It was not exactly a burden. It still isn’t a burden. And if there’s a real emergency, the cops wouldn’t have to get a warrant anyway. They’d just have to be able to articulate it later, which should be easy if there really was an exigent circumstance.

The only burden this ruling puts on cops is to stop them from slapping a GPS on someone just because they feel like it. If they’ve got a good reason to do it, no judge will say they can’t, and they’ll easily get a warrant.

Thought Police?

Monday, October 20th, 2008

brain scan

Guilt or innocence, one might say, is all in the mind. After all, there are very few crimes that can be committed without the requisite mens rea, or mental state. If we’re going to punish someone, their acts cannot have been mere accident. We want to know that they had some knowledge that their actions could cause harm, and we want that awareness to be sufficiently high as to require punishment.

The standard criminal levels of mens rea are “negligence” (you ought to have known bad things could happen), “recklessness” (you had good reason to believe that bad things would probably happen), “knowledge” (bad things were probably going to happen), and “intent” or “purpose” (you wanted bad things to happen). If your foot kicks someone in the ribs while you’re falling downstairs, you’re not a criminal. But if you kick someone in the ribs because you don’t like them, then society probably wants to punish you.

We cannot know what anyone was thinking when they did something, however. So we rely on jurors to use their common sense to figure out what an accused must have been thinking at the time.

In recent years, however, there have been enormous advances in neuroscience. Brain scans, the software that processes the data, and good science have approached levels that would have been considered science fiction as recently as the Clinton years. Experts in the field can see not only how the brain is put together, but also what an individual brain is doing in real time. Experimental data show which parts of the brain are active when people are thinking certain things, with good detail.

Functional magnetic resonance imaging (fMRI), in particular, can act as a super lie-detector. Instead of measuring someone’s perspiration and heart rate while they answer questions during a polygraph exam, fMRI looks at actual real-time brain activity in areas having to do with logic, making decisions, perhaps even lying. Experimental data of large groups is pretty good at identifying what parts of the brain are associated with different kinds of thinking.

Every brain is slightly different, of course. Brain surgeons have to learn the individual brain they’re operating on before they start cutting. So general group data don’t translate to an individual person 100%. So any lie-detector use for fMRI would have to require some baseline analysis before proceeding to the important questions.

The issue is whether it will be admissible in court. Polygraph tests generally aren’t admissible, because they’re more an art than a science. But fMRI is all science. In addition, brain scans are already widely admissible for the purpose of reducing a sentence because the defendant had damage to his brain. As forensic neuroscience expert Daniell Martell told the New York Times in 2007, brain scans are now de rigeur in capital cases. In Roper v. Simmons, the Supreme Court, ruling that adolescents cannot be executed, allowed brain scan evidence for the purpose of showing adolescent brains really are different.

Outside the United States, brain scans have already begun to be used by the prosecution to show guilt. In India, a woman was recently convicted of murdering her ex-boyfriend with the admission of brainwave-based lie detection. There was other evidence of guilt as well, including the fact that she admitted buying the poison that killed him. But the brainwave analysis was admitted.

There are deeper policy issues here. Is reading someone’s brain activity more like taking a blood sample, or more like taking a statement? The Miranda rule is there, at heart, because we do not want the government to override people’s free will, and force them to incriminate themselves out of their own mouths against their will. That’s why the fruits of a custodial interrogation are presumed inadmissible, unless the defendant first knowingly waives his rights against self-incrimination. And because the DNA in your blood isn’t something you make of your own free will, by taking a blood sample against your will the government has not forced you to incriminate yourself against your will.

So is a brain scan more like a blood sample? Is it simply taking evidence of what is there, without you consciously providing testimony against yourself? Or will it require the knowing waiver of your Fifth and Sixth Amendment rights before it can be applied?

We’re interested in your thoughts. Feel free to comment.