On Friday, I spoke to a group of lawyers about various issues in criminal law and technology. One of the issues we talked about is the police's use of Global Positioning System (GPS) devices to track people’s movements. (GPS devices are used by private parties, as well, but my focus here is on criminal matters, so I’m only going to deal with the government’s use of them.)This is really a follow-up to a post I did a while back, on Anti-GPS technology. Since I found the technology here is more complex that I realized, I thought I'd do a follow-up on the issue.
Under current law in the U.S., the Fourth Amendment’s prohibition on unreasonable searches and seizures are not implicated when the government installs a GPS device on someone’s vehicle and uses it to track their movements in public places. Courts have held that installing the device is not a seizure of your vehicle because it in no way interferes with your operation or use of the vehicle; you don’t even know the device is there (which is the point, after all). At least one state court has held that police do need a warrant, but that decision was made under state law and I’m focusing on the Fourth Amendment, because it is the default general national standard.
They have also cited a 1983 U.S. Supreme Court decision upholding the use of “beepers” to help police follow suspects in their vehicles for the proposition that it is not a search for the government to use a GPS device to track your movements in public places. (Courts say it is a search if police use GPS to track you into a private place, like your garage.) They have reached this conclusion even though a GPS device, unlike the beeper at issue in the Supreme Court case, substitutes for a police officer; the device tracks your movements without a police officer’s having to be assigned to follow you around. At least one state court has said that makes a difference under state law, because GPS lets police conduct surveillance on a larger scale than they could if they had to have officers follow people around; and the Seventh Circuit Court of Appeals noted that this might be a problem in the future, if police really begin to use GPS devices on a wide scale.
But, as of now, police do not have to get a search warrant to install and/or monitor a GPS device. Both activities are completely outside the Fourth Amendment, and that means police can install and monitor the device without your knowing anything about it (which, as I noted above, is the whole point). The basic practice when they have to get a warrant to do something is that they serve the warrant on you, then conduct a search of your home or other property, and then leave you with an inventory of what you took. That way, you know they were there, why they were there and what they took.
In the course of talking about this with the bar association on Friday, I suggested this might create a market for GPS detectors, and we talked about that a bit. One of the attorneys there, who has a good technical background, said there’s no way to use a detector to discover a passive GPS tracking device (GPS logger) that simply stores up information about your movements, but that a detector could be effective for an active device (GPS tracker) that transmits information periodically. So we talked about that a bit, and I joked as to how there could become a real market for these things.
I decided to see if GPS detectors are on the market and, yes, there are some. There are also GPS jamming devices and spoofers. I’ll talk a bit about each type of device, and then we’ll consider the legality of using any or all of them devices, now and in the future.
According to one site, it is possible to detect a GPS tracking device that transmits information by using a radio frequency detector/scanner. The problem, according to this site, is that the RF detector/scanner will only detect the transmissions of the GPS device when the device is actually transmitting. This site also notes that GPS devices use different technologies, which can also cause complications in detecting them. Another site follows up on that, explaining that some trackers do transmit a constant signal, which makes them easier to detect, and that the same is true of GPS devices that use cell phone connections. The site says ultimately the best way to find a GPS device is to use a combination of detection and “finger-tip searching.”
We, though, are interested in the use of technology to find GPS tracking devices, so we’ll stay with that. Before we consider the legality of using GPS detectors, I want to consider the second logical approach to dealing with a GPS tracking device: GPS jamming.
I found a website that advertises at least two different GPS jamming devices. Both plug into your vehicle’s cigarette lighter, and both jam a GPS device’s ability to collect and/or transmit location information. I also discovered that it is possible to spoof the signals sent to a GPS device, so the device thinks it is in Place A when it’s really in Place B.
As far as I can tell, there are no laws in the U.S. that criminalize the use of GPS detectors, jammers or spoofers. Since I can see objections being raised to the use of these devices if and when they become more popular, I want to speculate a bit as to whether the use of any of these devices could legitimately be outlawed.
The obvious source of analogy here is radar detectors. Like GPS detectors, jammers and spoofers, radar detectors allow those who use them to evade police surveillance technology.
A very few US states outlaw radar detectors. Virginia, for example, has a statute that makes it unlawful “to operate a motor vehicle on the highways of the Commonwealth when such vehicle is equipped with any device . . . to detect or purposefully interfere with . . . the measurement capabilities of any radar, laser, or other device . . . employed by law-enforcement personnel to measure the speed of motor vehicles on the highways”. Virginia Code section 46.2-1079(A).
In 1987, a bill was introduced in Congress that would have made it a federal crime to manufacture, sell or possess a radar detector, but the bill languished and finally disappeared. See H.R. 2102, 100th Congress, 1st Session (1987). There was apparently little support for such a measure because, as one author notes, “the nationwide criminalization of a segment of the electronics industry and its consumers is arguably unjustifiable and implicates questions of federalism. Proponents of federalism allege that the issue is best left to state legislatures.” Nikolaus Schandlbauer, Busting the “Fuzzbuster:” Rethinking Bans on Radar Detectors, 94 Dickinson Law Review 783, 789 (1990).
There seems to be no reason why states cannot outlaw radar detectors. A federal court of appeals upheld the constitutionality of the Virginia ban, agreeing with the district court that it “furthers a significant state interest in the health or safety of Virginia’s motorists”. Bryant Radio Supply, Inc. v. Slane, 507 F. Supp. 1325 (District Court of Virginia 1981), affirmed 669 F.2d 921 (Fourth Circuit Court of Appeals 1982). Notwithstanding that, most states have chosen not to outlaw them, presumably because they do not feel the evasion of law at issue here warrants such a punitive measure.
What about GPS detectors, jammers and spoofers? Can they legitimately be outlawed? Should they be outlawed?
In answering those questions, there may be some reason to differentiate between (a) detectors and jammers and (b) spoofers. From my brief research online, it seems that spoofers can be used by thieves who want to hijack cargo being moved by trucks; the thieves can apparently use the spoofed GPS signals to disguise the fact that a truck is deviating from its authorized route, a deviation which is leading up to the theft of its cargo. So, spoofing can be used to commit distinct, freestanding crimes as well as to frustrate law enforcement surveillance. While the same might be true of the other two types of GPS countermeasures, I am going to assume they only frustrate surveillance, and so am going to treat them differently.
As to spoofers, the answers to the questions I posed above are “yes,” in both instances. If spoofers can be used to set up cargo thefts and other crimes, then they are analogous to burglar’s tools. As I have explained before, many states outlaw the mere possession of burglar’s tools (which are usually defined as items that, in isolation or when collected together, clearly have no purpose other than illegal break-ins). The justification for these statutes is that they outlaw a type of attempted crime; in other words, there is no reason to possess burglar’s tools except to use them in a burglary. Spoofers are, I think more ambiguous: I am not sure they have any legitimate purpose, but they can be used either to (a) frustrate law enforcement surveillance or (b) to facilitate cargo thefts and maybe other types of crimes, as well. To the extent they fall into category (a), they should be encompassed by my analysis of the legality of outlawing jammers and detectors, which we’ll get to in a moment. To the extent they fall into category (b), they can be outlawed if they are truly analogous to burglar’s tools, i.e., if they have no independent legitimate use.
As to detectors and jammers, we need to analyze each of them separately. It seems to me that GPS detectors are very much analogous to radar detectors, in that they do not interfere with the functioning of law enforcement surveillance technology; they simply alert the target of the surveillance so that he or she can take appropriate measures to frustrate the surveillance. One could, therefore, argue that there is no more reason to outlaw GPS detectors than there is to outlaw radar detectors. The problem I see with this argument is that radar detectors are used only to detect a very low level of criminal activity, but GPS devices are usually used in investigating more serious crimes. That could make a real difference in how states answer the two questions I posed above. Because these detectors frustrate surveillance in investigations targeting more serious crimes, they could be seen as an effort to obstruct justice. (The same is true of radar detectors, but here the frustration is at a very low level, given the minor criminal activity at issue.) Indeed, one can argue that this is their whole purpose. If you accept that view of GPS detectors, the answers to the two questions I posed above are, again, “yes.”
What about GPS jammers? The analysis I went through in the paragraph above seems to apply to them, too. And there is an aggravating factor here. According to what I read on several websites, jamming GPS signals can create a safety hazard for ground vehicles and/or for aircraft. If that is true, then the use of these devices creates a new, distinct hazard to public safety, and the creation of such a hazard is a matter the criminal law can legitimately address. I suspect, then, that if GPS jammers begin to be used with any frequency, we will see efforts to outlaw their use at the state and/or federal level. I understand that their use is already illegal in European Union countries.
26 comments:
Jamming means that the device is broadcasting on the frequencies used by the GPS detectors either simply to blanket it with noise to prevent clear reception or with actual spoofed data.
I would be surprised to find that GPS jammers are not covered by FCC regulations that make it illegal to broadcast on most frequencies without licenses and espcecially on the specific frequencies reserved for the GPS system. It is almost certain the the power output needed to make sure that a receiver cannot pull valid data from the correct GPS system would be strong enough to meet the limits set by those regulations.
I think you're quite right that they would be covered by FCC regulations.
The perhaps rather narrow issue I was focusing on is the criminalization of the manufacture, possession and/or use of jammers as jammers. I think that issue has some interesting implications in this context and in other context, as well.
Under the Supreme Court's current interpretation of the 4th Amendment, I assume the risk that the communications, movements and other activities I conduct outside my home are not private u if I do not take steps to shield them from observation by the public and law enforcement. One of thing I find interesting here is the implicit notion that my ability to take countermeasures may itself be illegal . . . for different reasons in the respective cases of detectors, jammers and spoofers.
With regard to jamming, causing deliberate harmful interference to a lawful radio service such as GPS is a violation of the Communications Act, the FCC Rules and international telecommunication regulations. Generally it is the marketing and use that is proscribed.
Your discussion seems to assume that the only entity utilizing a GPS tracker would be law enforcement, and, if that were true, your arguments concerning state restrictions on jamming or spoofing devices might be reasonable.
Unlike police speed detection radar, it is conceivable that a GPS tracking system could be utilized for detecting non-criminal activity. The immediate example that springs to mind is the spouse with concerns about the other spouse's activities or fidelity, who hires a private detective or other specialist to install and monitor GPS tracking in order to gain information about the spouses activities.
In such an instance, the subject spouse could argue an expectation of privacy in determining his or her activities and keeping them personal unto themselves, and hence a valid right to prevent any third party from determining their whereabouts or movements when they wish to keep such information private and personal.
This would seem to be a legitimate and defensible reason for possessing and utilizing such hardware, regardless of the state's possible desire to utilize similar technology and perhaps outlaw such jamming or spoofing equipment.
the above john asendorf seems to be the only one really thinking about the situation here.
A friend of mine is stuck in a very unhappy marriage. Her hubby has been using the oh so fantastic new Sprint product that allows its users to track other Sprint customers. Brilliant money grubbing pricks. Now she fears for her life. Well played Corporate America! Her husband has also told her that he has placed a GPS device on her car but obviously will not tell her where. The threat of government tyranny is bad enough but technologies are easy to come by these days. How should one protect themselves from basically any jackass with a creditcard, an internet connection, and an axe to grind?
So, it's OK for the police to track my whereabouts, even though I'm a law abiding citizen? Innocent until proven guilty, indeed.
GPS trackers are used by stalkers, car thieves, papparazi, an a host of illegal types.
The professionals will install under your dash, so that is criminal trespass. To try and dig these things out is a major project. I took my car to three radio shops, I paid my $75, but found out later the detectives paid $250 for the technician to play dumb.
Today's GPS trackers are small, 1/2 size of a cigarette pack.
To the anonymous commenter whos sister was involved in an accident. What is being used on your sister is termed "gangstalking". Google the term and check for it on youtube. After the fall of communism, files were seized from the East German STASI (secret police). The STASI had the most advanced and pervasive snitch network in the world. They perfected the use of "paid informants" to track and record every aspect of a targets life. The system was very effective, and all the tricks are now in use by every police department in America. Funding comed from Homeland Security and DoJ. The bad news is, once you are on the list, you are never taken off, and you are targeted for the rest of your life. Google the name "Marcus Wolf" (creator of STASI) to verify Marcus Wolf was hired by the Bush regime as a "consultant". Now you know what he was telling teaching the American police.
I have been a 'victim' for gangstalking for years. I have a tracking device on my motorcycle, looking for some device to find it and take it off..so far no luck..
People will keep getting paid off no matter where you go. There has to be a legit device out there that can find hidden pin hole cameras, bike tracking devices that can locate there..I don't trust whats out there on the internet offered by these so called spy gear companies..
This comment is in response to Mr Romano's fcc comment "its not a good argument for using a jammer. Anyone, he says, can hire a detective to perform a sweep of a car or personal belongings to look for GPS receivers" -- This guy obviously has NOT done his home work! There are many inexpensive GPS units that only broadcast signals once per hour or even once every several hours. How is a private detective going to sweep for something sending out a random signal??? How many hours should we pay him when we have no idea how, and to what interval the GPS has been configured? These things are getting smaller all the time. What about the situation where we suspect corporate espionage involving competitors attempting to obtain our sell locations- clients by use of a GPS tracking device. This BUL*S**T garbage about a low power gps affecting aircraft is insane. Most of these units have a 5-10m range, and "affecting public safety" is another lie used by the controllers in an attempt to
further keep a device that would offer some freedom & privacy unlawful & out of public hands.
As a further note to the above comments it should be noted that many inexpensive GPS devices can be easily programmed via simple software (included) to send their signal at a set interval (every 15 minutes, every hour, once a day, etc) THE SIGNAL DOES NOT BROADCAST CONSTANTLY - Therefore you cannot use countersurveillance equipment to detect the GPS. More importantly, even if you set up equipment to continuously monitor for a signal, when the GPS Unit finally sends out the signal it will only be for a few seconds-not enough time for even high end countersurveillance equipment to find it! Locating a GPS requires a continuous signal to enable homing in on the signal, however the designers of GPS knew this that is why its design by nature to circumvent countersurvellance equipment. Also they wanted a unit which could operate for long periods with minimal power consumption. A unit that sends signal once every 2 hours can go many days/weeks on a single charge, whereas if the signal was sending continuously the battery would be dead within a day.
If the FCC is going to say that using a GPS Blocker to stop unauthorized tracking is illegal then they must also make it illegal to sell or own a GPS tracking device, and limit the usage of such devices to law enforcement only with a warrant.
To not do so should be a crime itself, because the public does not have a legitimate means to protect itself from such a sinister device.
Also, remotely installing spyware on a cell phone to track a victim or activate his cell phone's microphone (for eavesdropping) should be a felony for using or selling such spyware. Use of the same technology by any state/fed govt without a warrant should also be a felony.
Don't hide the truth from the American public.
What is the point of transmitting signal just once a day? Or it transmits summary of the whole day worth of driving?
The article equates possession of a GPS jammer with possession of burglary tools since it is possible to use either in the commission of a crime. By this logic, merely possessing the "tools of a criminal" implies that a person possessing these items, is indeed, a criminal, and thus there is a legitimate reason for them to be monitored.
By similar logic, it could be argued that anyone possessing a gun, explosive materials, or substances that could be considered poisonous to humans could be assumed to have criminal intent, since all of these items could be used in the commission of a crime.
In reality, there are entirely legitimate reasons why law abiding citizes might possess any of these materials. Possessing a GPS jammer does not make someone a freight hijacker, unless they actually attempt to highjack freight! Have Orwell's thought police become a reallity?
The arguments that it is acceptable to place a tracker on someones vehicle because the space is publicly accessibe is Bull#*&*. Placing a tracker on or inside someone elses property is a form of tresspass against a space which people have legitimate reason to believe is personal and private. If it truely is necessary to track people in this way, then a court order should be required, just as it used to be in the days before 9-11, before law enforement had carte blanche to trample our constitutional rights.
The next step in our citizen survellance society will be for everyone to carry microchipped (RFID) drivers licenses - they already exist in some states. After that, the RFIDs will simply be injected into us, like so many cattle or widgets being tracked on a shipping dock.
Perhaps the article's author would be among the first to step up for a injectable RFID tracking device... after all, I'm sure that s/he is a law abiding citizen and has nothing to hide. What could be the harm?
As for me... I believe in the concept of innocent until proven guilty. And I also support the importance of an independent jucidial system to monitor law enforcement practices to ensure that they are not used indiscriminately or abusively.
Anonymous
Actually, there is a whole other kettle of fish here. Client spying on motor carriers. I am covered under a collective agreement with a large motor carrier but that is only with my employer. They have three major clients (the three biggest games in town) and the corporate client is doing a very ham handed job of GPS tracking. I can lose access to a work site (significant lost income)based on client decision with no accountability to me or my union. Employer chooses multi-billion company over their own grunt not surprisingly...
I live in Poland. I was a policeman. I have hobby- detecting bugging devices. I have device - detector GPS tracker when it sends a GSM signal. Detector passive appliance. Together with his colleague have built such a device. We are working now on the detection tape recording. I'am sorry my english is very bad but I hoppe undertand me.
Witek,
Your English is fine . . . and I quite understand you.
Thank you for the post . . . the device sounds very interesting.
For the record, 49 CFR 392.71prohibits commercial drivers from operating commercial motor vehicles equipped with or containing any radar detector. As a federal reg, this prohibition is enforced in all states.
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