U.S. Senator Takes Wrong Turn on DOJ's GPS Tracking Requests

NEWS ANALYSIS: Perhaps the former comedian is joking in suggesting there’s a link between physical trespass and asking phone companies for GPS location data.

U.S. Senator Al Franken€™s letter to U.S. Attorney General Eric Holder regarding the U.S. Justice Department requests for GPS location data from phone companies appears to be based on a flawed understanding of the law.

In a letter sent to the Attorney General May 10, Senator Franken suggested that law-enforcement agencies€™ gathering of location data by requesting it from wireless carriers was somehow covered by the United States vs. Jones decision of the U.S. Supreme Court. €œI think that these actions may violate the spirit if not the letter of the Jones decision,€ Franken (D-Minn.) said in his letter.

The problem with Senator Franken€™s assumptions in his letter to the AG is that he€™s suggesting that finding out where someone€™s cell phone is located by using the position records from the phone company somehow violates the Supreme Court decision.

It doesn€™t. The entire case in U.S. vs. Jones was based on whether it€™s legal to trespass on personal property without a warrant to place a GPS monitoring device there. In the Jones decision, police and federal agents physically attached a GPS device to Jones€™ car.

€œHeld: The Government€™s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle€™s movements constitutes a search under the Fourth Amendment,€ the Supreme Court said in its finding. The decision was clearly based on whether the police could legally place the GPS device in or on the car. It was the entry into the vehicle or the touching of the vehicle that violated the Fourth Amendment.

If knowing where someone is located at a point in time or in real time were a violation of the Fourth Amendment, then a logical extension of that would find that it was also a violation for one policeman to tell another that he sees a suspect walking along a street, and then tells him where that street is located.

Likewise, police have long been allowed to conduct surveillance using everything from helicopters to toll booth cameras, and the use of those methods has never been found unconstitutional by the court. While many people have suggested that Jones had an expectation of privacy in regards to his travels on public streets, there doesn€™t seem to be any support for that.

What€™s apparently going on here is that Senator Franken is looking for a way to use the Jones decision to prevent any kind of surveillance without a warrant. As far as I can tell from my research, there doesn€™t appear to be any legal difference between finding out someone€™s location because another person tells you where they are and finding out someone€™s location by having the phone company tell you where they are.

Senator Franken€™s questions are obviously aimed at extending his apparent belief that all surveillance without a warrant is wrong to include the requests made of the phone company. Perhaps, if the Supreme Court had found that their act of using GPS to determine someone€™s location was an illegal search, the senator€™s concerns might be well-placed. But that€™s not what the court decided. As a result, Senator Franken€™s assumptions are wrong, and DOJ will likely say so.

But there€™s a larger question here. That question is whether law-enforcement agencies should be allowed to determine a person€™s location (or more accurately the location of their cell phone) remotely. Should it be illegal for the phone company to tell the police where you are if they ask?

After all, if Senator Franken wants the practice to be illegal, he can always introduce legislation to make it so, and if the rest of Congress and the President agree, then it will become the law of the land. But perhaps Senator Franken should think of the unintended consequences of such a law before pressing his beliefs onto an unsuspecting public.

Take, for example, the E911 service. The FCC has mandated that carriers be able to determine the location of a caller dialing 911 in the case of an emergency. If the carriers are prohibited by law (whether it€™s legislation or a Supreme Court finding), then how would they legally tell the police or other rescuers where to find the person in trouble?

Or suppose the location data being used is one of those devices that tracks children in case they wander away from home. Would the police be prohibited from using the location of the device if that child were lost or abducted? Would they need to waste precious hours waiting for a warrant?

Or, suppose, it€™s you. You€™ve been badly injured in an auto accident, and while you€™re still conscious, you call 911. Then, while you watch the blood drain slowly from your body, you€™re told by the 911 operator that they can€™t send the police or the rescue squad until a judge somewhere grants a warrant. That seems to be what Senator Franken has in mind with his suggestions. Perhaps, while the 911 people are waiting for their warrant, you should call Senator Franken. Perhaps, he€™ll come stop the bleeding while the rescue squad is waiting for its warrant.

Wayne Rash

Wayne Rash

Wayne Rash is a freelance writer and editor with a 35 year history covering technology. He’s a frequent speaker on business, technology issues and enterprise computing. He covers Washington and...