May 12, 2009 | By Jennifer Granick

Victory For Location Privacy in New York GPS Tracking Case

Today brings great news for location privacy, especially if you live in New York. The highest court for that state ruled today in People v. Weaver that police may not use a GPS device to track the movements of your vehicle without first getting a warrant. (Opinion here.) In Weaver, state police placed a GPS tracking device on the defendant’s car and tracked it for 65 days for no apparent reason. GPS devices are sophisticated tracking devices that give officers extremely detailed, round-the-clock information about the movements of a vehicle or tagged suspect. As the Court recognized, the GPS unit will disclose trips of an indisputably private nature from which the government can infer not simply where we go, but our political, religious and amorous associations. Since the “potential for a similar capture of information or ‘seeing’ by law enforcement would require, at a minimum, millions of additional police officers and cameras on every street lamp,” GPS poses a categorically different kind of privacy threat than simple tracking beepers previously allowed without a warrant in U.S. Supreme Court cases from the early 1980s. For these reasons, suspicionless, warrantless GPS tracking violates the state guarantees against unreasonable searches and seizures.

The National Association for Criminal Defense Lawyers and EFF signed the friend-of-the-court brief in this case, arguing that individuals’ privacy interests in where they go, what they do, and who they meet deserve protection from unfettered government surveillance.

Acknowledging that federal law is unsettled, the Weaver ruling relies on the New York Constitution’s corollary to the Fourth Amendment, so the warrant requirement now applies to GPS investigations within that state. The opinion, however, will be influential on other states and federal courts as they consider this same issue. The Court persuasively distinguishes the beeper cases on the grounds that GPS is not a mere enhancement of human sensory capacity, but a substitution for law enforcement that facilitates a new and incredibly invasive technological perception of the world.

EFF and the ACLU for the National Capital Area have filed a similar brief in United States v. Jones, a pending federal case in the District of Columbia Court of Appeals where FBI agents planted a GPS device on a car while it was on private property and then used it to track the position of the automobile every ten seconds for a full month, all without securing a warrant. We look forward to that court’s decision in light of the solid reasoning in Weaver.

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