The New York Court of Appeals — the highest court in New York state — says no.
The case is People v. Weaver (PDF), released today:
GPS is not a mere enhancement of human sensory capacity, it facilitates a new technological perception of the world in which the situation of any object may be followed and exhaustively recorded over, in most cases, a practically unlimited period. 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....The court bases its decision solely on the New York constitution, so there can be no recourse to the U.S. Supreme Court. This is the law in New York: "in the absence of exigent circumstances, the installation and use of a GPS device to monitor an individual's whereabouts requires a warrant supported by probable cause."
The whole of a person's progress through the world, into both public and private spatial spheres, can be charted and recorded over lengthy periods possibly limited only by the need to change the transmitting unit's batteries. Disclosed in the data retrieved from the transmitting unit, nearly instantaneously with the press of a button on the highly portable receiving unit, will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on. What the technology yields and records with breathtaking quality and quantity, is a highly detailed profile, not simply of where we go, but by easy inference, of our associations -- political, religious, amicable and amorous, to name only a few -- and of the pattern of our professional and avocational pursuits.
Excellent.
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25 comments:
I love New York, in this case.
New York, New York, the warrants are up and the Total Control is down. This Justice writes what we all knew instinctively: the facists seeking to map out a control over our communities have to disclose their intentions to a Judge, or do it in secret.They cannot pretend to be catching criminals.
I have always considered this similar to radar for speed control, where you are under electronic surveillance without cause, but at least that is anonymous. Here, they know who you are, and are "following" you. It connects with yesterdays post about Orwell, the creeping loss of privacy to the state.
Seems to be a taking of property without just compensation. If they want to put a GPS on my car, then they should pay the reasonable value for taking up my space.
The touchstone is a person's reasonable expectation of privacy, and how technological changes impact it.
The New York court (by a 4-3 vote) wasn't buying the idea that technolopgical monitoring was just the same in principle as direct observations by police that don't require a warrant (the police watching a particular venue to see who goes in or out, or using binoculars to do so, for example). In contrast the Wisconsin court thought that what the police could see from a public right of way (if they happened to be watching you 24/7), was all that the GPS told them (without their having to go to the inconvenience of doing all that watching).
But the NY Court went out of its way to note that "exigent circumstances" can dispense with the warrant requirement, and that the analogy at the heart of the Wisconsin court's analysis is supported by a lot of precedent (as well as common sense in many situations). At bottom, in thinking about GPS, the NY Court found a difference in kind and not merely in degree, where the Wisconsin court saw only a continuum. That argument is a long way from settled.
Two oddities about the NY case. Most of these 4th Amendment cases arise as part of a drug investigation. The NY case involved a burglary investigation. Second, the majority opinion begins by saying that there is no explanation in the record for why the police originally attached the GPS device to the defendant's van. The lack of some explanation for why the police were targeting the defendant may have given the majority some pause -- it has that aspect of 'Big Brother watching you' that comes through in the majority's discussion. I don't know whether the police had a good explanation, but in hindsight if they did, the prosecutor may have stumbled in not telling the court what it was.
The Washington Supreme Court reached the same conclusion six years ago in State v. Jackson, 150 Wn.2d 251, 262, 76 P.3d 217 (2003.)
As much as I like the result, I'm not fond of the reasoning. Basically it says that the cops can get that kind of information, but they are required to do it badly. The GPS just does the job too well. I suppose that by the same reasoning the court could impose a maximum IQ restriction on NY cops. Wisconsin cops are not required to be as stupid - good thing or bad thing?
Eh, so we get a warrant. Fine with me.
The New York Court of Appeals — the highest court in New York state — says no:
"GPS is not a mere enhancement of human sensory capacity...(followed by several hundred more words of pretentious jejune blather making no reference to any constitution)..."
The court bases its decision solely on the New York constitution...
Huh?
Good on them. The reasoning isn't as tight as I would have liked it but I'll take it.
I would love to know why the police didn't just get a warrant.
I was interested in the comment in one of the dissents about use of these devices by suspicious spouses. There's a New York case working its way up through the appellate courts right now in which a wife who suspected her husband was having an affair put a GPS in her truck. Info recorded by the GPS was later used to convict the husband of murdering the couple's young babysitter by running her over with the truck. (The wife's original suspicions had nothing to do with the babysitter, who was only 12.) The husband said it was an accident, but the GPS info contradicted what he told police about where he had driven that night and when he had driven there.
If I correctly remember, the husband found the GPS before his wife told the police it was there and dropped it into the trash -- in the sheriff's office!
Oops. the wife put the GPS in HIS truck. Not hers. Need to re-read before I post.
The federal judiciary does whatever the hell it wants, whenever it wants.
If the U.S. Supreme Court wants to review the case, it will review the case, state constitution be damned. Michigan v. Long, 463 U.S. 1032 (1983)
Maybe there should be a 1st Amendment exception for National Enquirer surveillance on all political figures named Edwards.
Flexo, I doubt it, in this case. It's settled law in New York that the State Constitution provides broader protections than does the US Constitution. I think the adequate and independent state grounds are clearly present.
mrs whatsit -- who has the power to say that the U.S. Supreme Court can't do it?
The Supreme Court. Which, I grant you, is circular, and also iffy since the Supreme Court can and does change its mind about how much interference in State affairs it will allow itself (see for instance Bush v Gore, or Gore v Bush or whatever it is.) But like it or not, it's how constitutional interpretation has handled in this country for lo these many years.
In the case you cited, there's quite an extended discussion of the meaning of "adequate and independent state grounds", and it appears to me that the language used by the NY Court of Appeals puts its reasoning so squarely into the territory covered by the discussion that the US Supreme Court would have to stretch its own words pretty far to get it out of there. I could certainly be wrong. We'll see.
Apropos of nothing in particular, I think the NY decision is unusually well-written.
Next year the Google Earth site may add a tracking arrow for the GPS on vehicles as a car fax option, like they do now for the Starbucks locations. Think of the possibilities for parents and car repo services. Who said that computers are thru with us?
I eagerly await the legislation to rectify this matter in the US Congress, particularly now that the entire DC power-axis is controlled by the party that has spent the last 7+ years deriding the purported "shredding" of Americans' privacy rights and rights to freedom from intrusion by instruments of the state.
The Pelosi/Reid clown ass'n might actually convince some of us they stand for something other than their own perks if they took some action (not just words) on this issue, which is of course why I'm not holding my breath.
Richard Dolan is right that this debate is unresolved and he makes some good points.
But in reality most judges seem to vote their priors and make up some constitutional reasoning to justify the result that seems intuitively right to them, so it's nice to see them err on the side of liberty once in a while.
I'm curious as to why the idea that looking at my car isn't considered different than actually touching my car and adding a survillance device?
I would consider a GPS unit on my car equal to a tap on my telephone in that I should be able to expect a reasonable level of privacy; something denied by the attachment of a government owned tracking device.
And why ought this issue have been decided by judicial fiat, rather than the duly elected legislators of the Empire State? Or, stated slightly differently, why is it okay for the New York Court of Appeals to effectively amend the state constitution as it -- and only it -- sees fit, purportedly to accommodate new technology, but in reality to write new rules for it?
Courts are the branch of government least well suited to chisel in stone new law about new technology. This court should have said, "If the people of this state want to write new privacy-protecting law to apply to this technology, they can do that through the branches of their government that are more directly representative of their wishes." And then it should have shut up.
I add this: Were I a legislator in New York State, I would probably vote for a new statute, or even an amendment to the state constitution, which would have come to the same result.
That doesn't make judicial fiat the appropriate way to resolve this issue, however.
[T]rips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on.Shoot, a fella could have a pretty good weekend in Reno with all that stuff.
Compare and contrast:
A) An officer sees your car in a parking space that is designated to be used for a maximum of thirty minutes. The officer makes a note of the location of distinguishing marks on your tires near the curb (e.g. the location of the air valve for re-inflating your tire). Thirty minutes later, the officer observes these mark in the same angular position, and tickets you.
B) Same as before, except the officer draws a mark on your tire with white chalk at the "6 o'clock" position.
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