My colleague wrote last month about the need for clear guidelines for using “new police technologies,” including GPS tracking darts and x-ray vans. He is not alone. Federal and state legislatures have been taking up this issue, even while courts are in the process of defining the limits of citizens’ Fourth Amendment right to privacy.
As Mr. Rivera noted, tracking devices have been very useful tools for law enforcement. At the same time the tools are invasive and used surreptitiously, raising significant privacy concerns. Still, no one is seriously considering banning any of these devices. The question legislatures are grappling with is whether or not law enforcement should be required to seek a warrant before employing invasive tracking technologies.
Requiring a warrant would be a safeguard rather than an outright prohibition. In order to obtain a warrant, law enforcement officials have to petition an impartial judge (usually magistrate), demonstrating probable cause and limited scope. This process is designed to protect against law enforcement abusing their power. And it increases accountability and oversight.
Despite differences between the various tracking privacy bills being considered, there are some aspects that remain consistent. For example, the bills at the state and federal levels carve out exemptions for emergency situations where, for example, someone is in imminent danger.
One major difference between the bills is whether they allow evidence from unwarranted tracking to be admitted in criminal proceedings. The Geolocation Privacy and Surveillance Act (“GPS Act”), for example, is a bipartisan federal bill that would, in general, make information obtained through unwarranted tracking inadmissible evidence in court. Whereas California’s SB914, designed to limit unwarranted access to cellphone data, would still allow evidence obtained in violation of the bill to be admitted in criminal proceedings.
The difference in how such evidence is handled is not necessarily due to the intent of the bills’ sponsors, however. Rather it is the result of differences in the federal and state evidence codes. As such, without taking evidence codes into account, we are likely to end up with a patchwork approach to these new technologies, despite the efforts of courts and legislatures try to clarify what are acceptable uses of new tracking devices.