DC Circuit Rules on Fourth Amendment and GPS

In an earlier post, I discussed the case of People v. Weaver which was argued before the New York Court of Appeals. Now, the Federal Circuit Court for the District of Columbia has decided on the issue of whether the long-term use of GPS surveillance must be supported by a warrant. Unlike in People v. Weaver, the DC Circuit decided the case on the basis of the Fourth Amendment of the US Constitution as opposed to an analogous guarantee under a State Constitution. The case, United States v. Maynard, No. 08-3030 (D.C. Cir. August 6, 2010), does have some similarities to People v. Weaver, but there are also some interesting and significant differences.

Maynard involved the use of a GPS device to monitor the movements of a suspect’s vehicle over the course of 28 days. Inevitably, as in Weaver, much of the discussion in Maynard centers around the Knotts case (460 U.S. 276 (1983)). Knotts was the Supreme Court case involving the “beeper” homing device and the drum of chloroform (See my earlier post for more details). In Maynard, however, the court seized upon specific language indicating a limitation on the scope of the Knotts holding. In this way, the DC court argued that the Knotts court had drawn a distinction between the limited type of surveillance at issue in that case versus “more comprehensive or sustained” surveillance as was at issue in the Maynard case (“Most important for the present case, the Court specifically reserved the question whether a warrant would be required in a case involving ‘twenty-four hour surveillance,’….” (p. 17)).

Thus, for the Maynard court, the issue in question in the case was whether prolonged GPS-tracking of a vehicle without a warrant violated the Fourth Amendment protection against unreasonable searches. As in Weaver, the DC court was particularly impressed by the amount of information that could be extracted from having the complete record of an individual’s movements over an extended period of time.

Since the case concerned the Fourth Amendment, the Court had to apply the so-called Katz test (after Katz v. United States, 389 U. S. 347 (1967)) to determine whether there was a violation. That involves application of the famous (or infamous) “reasonable expectation of privacy” standard. Under that standard, US Supreme Court jurisprudence has established that one cannot reasonably expect that aspects of life that are exposed to the public remain in or belong to the private sphere. Thus, the reasoning in Knotts was that the use of the homing device did not implicate the Fourth Amendment since “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another” (Knotts, at 281). Interestingly, the DC court held that the prolonged surveillance of a suspect’s vehicle with GPS does not concern movements that are “exposed to the public” in the same way as the journey of the drum of chloroform from its place of purchase to Knotts’ cabin. Here, the extent of information gathered was the distinguishing factor. Although each of the vehicle’s movements on public roads was undoubtedly in public view, the DC court maintained that the likelihood that anyone would track each of those movements week after week was “essentially nil” (p. 26). Thus, in essence, it may be unreasonable to expect that no one will observe the totality of a single trip made with one’s automobile on public roads, but it is not unreasonable to expect that no one person will observe the totality of every trip made with that automobile over the course of a month. That, at least, appears to be the court’s reasoning.

This line of thought makes this case particularly remarkable. The notion that the extent of information itself that is gathered about a criminal subject could hold significance for Fourth Amendment analysis has not been adopted by the Supreme Court; yet, many have questioned or criticized the shortcomings of the reasonable expectation of privacy standard, including the potential lack of differentiation with respect to the aggregation of “publicly exposed” information as opposed to individual bits. I’m not sure that any other federal court has introduced this notion – there at least don’t appear to be any other such cases concerning the use of GPS. In fact, the 7th and 9th Circuits tended to suggest the sort of result one would expect—i.e. that use of GPS generally wouldn’t constitute a Fourth Amendment search since it merely conveyed information that was exposed to public view (See United States v. Garcia, 474 F.3d 994 (7th Cir. 2007), United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010)). If the Supreme Court were to adopt Maynard’s line of reasoning, it would mean a significant change for the scope of Fourth Amendment protection, not to mention the future of law enforcement surveillance.

But how does Maynard differ from Weaver—apart from the fact that they dealt with different bodies of law? Weaver seemed to focus on the technology itself and the novel dangers it posed—as bemoaned by Judge Smith in his dissent. As a result, Weaver appears to hold that the use of GPS for surveillance will always require a warrant whatever the circumstances. The holding in Maynard is narrower. It doesn’t subject GPS in and of itself to the warrant requirement but rather only the “prolonged” use of it. Again, it’s essentially the body of information that is acquired that is the key issue. “Prolonged” use results in the collection of too much information—beyond what one would reasonably expect to be public. That means that more limited use of GPS without a warrant should be OK within DC (assuming there aren’t other bases for objecting on Fourth Amendment grounds—for instance on the basis that depositing the GPS device on the car constituted an impermissible seizure). Where exactly the line would lie between overintrusive surveillance and permissible surveillance remains to be seen. It’s significant to note that the court expressly reserved any determination as to whether prolonged visual surveillance would be subject to the warrant requirement. That fact might, in a way, leave some room for technology to have some significance after all. However, if it were ruled that no warrant was required for police officers to maintain visual surveillance of a suspect over the course of a month and record that suspect’s movements—effectively accumulating the same body of information that was at issue in Maynard—this would be a strange result.

Maynard is interesting for another reason. On pages 36 - 37, it refers to what in German is known as a right to “informational self-determination” (informationelle Selbstbestimmung). In English scholarship, this right is often referred to as “informational privacy” (See DETECTER Deliverable D17.1: van der Hilst, "Human Rights Risks of Selected Detection Technologies: Sample Uses by Governments of Selected Detection Technologies," p. 4 (citing Alan F. Westin, Privacy and Freedom (1967) and Arthur Miller, The Assault on Privacy (1971))). If a right to control information about oneself wins greater recognition in the US—beyond law pertaining to the Freedom of Information Act and (potentially) common law torts—this would also represent a significant development for privacy law in the US.