February 16, 2010 | By Jennifer Granick

EFF to Wisconsin: Just Say No to Warrantless GPS Tracking

ACLU National, ACLU of Wisconsin, and EFF have filed an amicus brief in the Wisconsin Supreme Court arguing that the law of that state prohibits police from installing a GPS device on you or your car without first getting a warrant from a judge. A growing number of state high courts have decided that their citizens should be protected from suspicionless GPS tracking, recognizing that uninterrupted around-the-clock surveillance is qualitatively different from ordinary police observations of a suspect. In the Wisconsin case, People v. Sveum, we ask the court to follow the example of Washington, New York, and Massachusetts and find that GPS tracking is a search that requires a warrant. EFF participated as amicus in the New York case, People v. Weaver, and is awaiting a decision under the federal Constitution in U.S. v. Jones, a GPS tracking case pending in the Court of Appeals for the District of Columbia. As more and more states find that their residents have a reasonable expectation that they will not be digitally tracked with surreptitiously installed devices, the federal courts must take note. The Fourth Amendment protects legitimate expectations of privacy.

EFF is also actively litigating several location privacy cases involving government use of cell phone tower information to track the location of mobile handsets. These cases involve the same creepy surreptitious pervasive electronic tracking as GPS tracking, but somewhat different legal issues in part because a complex statutory scheme protects data generated by cell phones. We recently argued one such case in the Third Circuit Court of Appeals. For an in depth analysis of the legal issues in that cell tracking case, see our amicus brief.

For more information, see: State v. Jackson, 150 Wash. 2d 251, 76 P.3d 217 (2003) (installation of a GPS tracking device on defendant’s car required a warrant), People v. Weaver, 12 N.Y.3d 433, 909 N.E.2d 1195 (2009) (same), and Commonwealth v. Connolly, 454 Mass. 808, 913 N.E.2d 356 (2009) (installation and monitoring of a GPS tracking device on defendant’s minivan was a seizure).

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