Running Head: Law Review Paper 1
Law Review Paper
Marlon E. Somersall
Mercer University, Executive MBA
Law Review Paper 2
Some are enthusiastic about the rapid expansion of technology and communication over
the Internet and view it as the ideal medium for free speech and expression. Others are extremely
apprehensive of the Internet and everything found there and feel that the availability of
information can affect privacy. The indisputable fact is the Internet has revolutionized the way
we obtain information and has opened new channels of communication. It is a great research tool
that can be accessed virtually anywhere and with the convergence of communication on
multimedia platforms such as smart-phones, unprecedented monitoring capabilities and access to
information is now enabled. Current technology is driving the digital age and as the use of
computers and networks continue to expand into new areas concerns about privacy will most
likely increase. This paper will explore how existing legal precedent has been brought to bear on
technologies such as the Internet-enabled global positioning used by Google’s new latitude
service and GPS-enabled OnStar. The paper is particularly concerned with how the first and
fourth amendments are implicated relative to these emerging technologies. It will also explore
whether the monitoring of our movements utilizing various technologies encroaches on our
privacy rights.
Today it is commonplace to see persons with Internet- enabled cell phones or
smartphones that offer various features such as video cameras, GPS, microphone, wireless
communication outlets, Wi-Fi, Bluetooth, and the computational power and memory of the
desktops several years ago. These devices can be used to listen to the radio, watch digital TV,
browse the Internet, and conduct video conferencing. With the rapid penetration of GPS these
smartphone devices are now geo-tracking and creating context awareness, which in turn is
causing an explosion of Location Based Services that rely heavily on mapping on the devices.1
1
Wisniewski, J. (2009, November). Location, Location, Location. Online, 33(6), 54-57.
Law Review Paper 3
Services such as Google Mobile currently provide driving directions from a smartphone’s
location, and the I Phone Travelocity can show hotels or landmarks near the phone. 2 Due to their
portability, computation, and communication capabilities, smartphones are becoming useful for
numerous applications and can sensor the movement of persons by using information embedded
in the phone’s infrastructure. In fact, there are current large scale applications that include
everything from population migration tracking and traffic flow estimation to the monitoring of
an individual’s physical activity occurring because of these sensors. 3 These enhancements to
technology can provide many benefits such as assisting someone in an accident buy notifying
emergency personnel and helping someone to get driving directions but with the rolling out of
Google’s new latitude, a free phone or device tracking service, concerns for privacy are
heightened.
Google latitude is marketed as a service that helps friends to track each other on a map
using their smartphones and is used as a social networking medium. The privacy statement of the
service clearly states that federal agencies and commercial interest can use it as surveillance or a
monitoring tool. This is extremely concerning because the accuracy of the software is remarkable
and one’s location can be pinpointed with extreme precision.4 The software could
instantaneously determine if you are in church, in a restaurant, at a political rally, bank, brothel,
at the hospital or airport and inferences can be made about our associations and who we are with.
As long as there is a cell phone tower or Wi-Fi nearby an individual’s location can be traced
within feet of their phone. The information obtained about our movements could be used for
commercial and economic purposes such as sending advertisements attracting us to similar
events but could also be used to potentially circumvent the first and fourth amendments in cases
2 Stephen Baker. (2009, March). The Next Net. Business Week,(4122), 42
3 Larkin, E. (October 2009). Privacy Watch. PC World, 27(10), 48
4 Oppenheim, R. (2009, September). You Don’t Have a Smartphone? Searcher, 17(8), 41-44
Law Review Paper 4
where the federal, state and local law enforcement agencies want to monitor an individual. This
kind of monitoring could undermine the first amendment right to associate privately with others
by allowing the government to identify a person’s associations through examining their
location.5 An example of this would be if someone’s smartphone identifies their location as
being in a members only Masonic lodge in which it can be inferred that they are a member or
associate with members of that lodge. Surveillance is an inescapable feature of our daily lives as
we all leave a trail of electronic traces when we exchange personal information to get services.
However, we can often negotiate the amount of information that we are willing to disclose and in
cases such as applying for a bank loan we might authorize the bank to allow their affiliates to
view our profiles with the intention of receiving some sort of value added service. The lack of
control of the data with Google Latitude is a main concern and my focus is the unauthorized
monitoring of an individual’s movements through various locations.6
Although the word ‘privacy’ does not explicitly appear in the U.S Constitution, the
Supreme Court has made clear that this is a fundamental right that is implicit from an array of
other protective rights guaranteed in the first, third, fourth, fifth and ninth amendments. In
Griswold v. Connecticut, decided in 1965, the United States Supreme Court declared for the first
time that state and local governments are fully bound to respect privacy as a general right. 7 The
right to privacy lies deep in history. Precisely four centuries ago, a British court declared in
5 U.S. amendment I
6 Jengchung V. Chen, William Ross, & Shaoyu F. Huang. (2008). Privacy, trust, and justice considerations for location-based
mobile telecommunication services. Info: the Journal of Policy, Regulation and Strategy for Telecommunications, Information
and Media, 10(4), 30-45.
7 Griswold v. Connecticut, 381 U.S. 479 (1965)
Law Review Paper 5
Semagne’s case “the house of everyone is to him as his castle and fortress”.8 From this common
law it was later adopted here in the United States in the fourth amendment that in order for the
government to search a person’s house, or personal papers, a valid reason or “Probable Cause”
must exist and the legal authority in the form of a warrant after giving adequate notice to the
court must be sought before seeking entry and access.9 With today’s technological advances
personal papers are now stored on I Phones and PDA’s which are usually in kept in someone’s
pocket and personal property can stored in an automobile. Google’s policy clearly states that
they can share whatever personal information they have compiled on us. Although we have the
option not use these services, past precedent should still apply and consumer’s privacy should be
protected from a company’s policy that can potentially share our information with a third party
without our acknowledgement.
The government in the past has regulated the use of private information within the cable
industry which is a similar industry to the internet servicing industry. With the enactment of the
Cable Television Consumer Protection and Competition act of 1992 they required the cable
companies to notify an individual of a request for their information by a third party. The point of
which was to give a subscriber the opportunity to prohibit or limit such disclosure.10 This past
precedent has thus far not applied to the internet and with the vast influence that companies such
as Google have on Internet users because of their market share, constitutional safeguards need to
be examined to prevent the abuse of privacy rights. The cable industry and Internet service
providers are similar oligopolistic industries that have few dominant companies with large
market share. They also both provide optional services and can influence individuals because of
8 Semayne's Case (1604) 77 Eng. Rep. 194; 5 Co. Rep. 91
9
U.S Const. amendment IV
10
Fcc, Fcc Facts, November 2009 http://www.fcc.gov/mb/facts/csgen.html
Law Review Paper 6
content on their platforms. If the cable industry is regulated and consumers are protected similar
stringent rules should also apply to the internet companies.
Google plays a dominant role on the internet and has made their privacy policy clear.
“Google processes personal information on our servers in the United States of America and in
other countries. In some cases, we process personal information on a server outside your own
country. We may process personal information to provide our own services. In some cases, we
may process personal information on behalf of and according to the instructions of a third party,
such as our advertising partners”.11 A third party can be anyone such as the government and if
the government wants to monitor someone the law requires them to have “probable cause”.12
Google’s policy for information sharing is clear and states that they only share personal
information with other companies or individuals outside of Google in the limited circumstances.
“We have a good faith belief that access, use, preservation or disclosure of such information is
reasonably necessary to (a) satisfy any applicable law, regulation, legal process or enforceable
governmental request, (b) enforce applicable Terms of Service, including investigation of
potential violations thereof, (c) detect, prevent, or otherwise address fraud, security or technical
issues, or (d) protect against harm to the rights, property or safety of Google, its users or the
public as required or permitted by law”.13 With statements such as we can share information if it
is reasonably necessary to satisfy a “legal process or enforceable governmental request”14, there
is potentially room for the government agencies to circumvent due process and gather
information on individuals if Google deems that a “legal process”15 is satisfied. An “enforceable
11
Google, Google Privacy Statement, November2009, http://www.google.com/privacypolicy.html
12
Id
13
Id
14
Id
15
Id
Law Review Paper 7
government request”16 is a very vague term and in the past there were instances in which
government agencies or law enforcement agencies requested information without getting
warrants citing that the request was “an enforceable government request”.17
The Supreme Court’s recognition of a citizen’s right to be secure against intrusion dates
back to cases in the 1800’s and is germane today because of the rapid expansion of interactive
technologies. In the 1880 case of Kilbourn v.Thompson, the courts established that congress does
not “possess the general power of making inquiries into the private affairs of citizens”.18 This
principle was later extended to federal administrative agencies created by congress. In 1928 with
the notable court case Olmstead v. United States, it was found that the use of wiretaps do not
violate the fourth amendment if there has been no physical invasion of a citizens home, person,
or papers.19 In Katz v. United States it was later established that privacy rights extended to “a
telephone booth” noting that “where ever a man may be, he is entitled to know that he will
remain free from unreasonable searches and seizure” .20 The law evolves and even though phone
booths aren’t as prevalent in our communities because of the advent of cell phone that “booth”21
in a sense encircles us. These cases are directly relevant today with our current technology
because when we sign up for Google’s latitude service we are often doing so with the intention
of maintaining our privacy and even thought there is no physical invasion of home, person, or
papers as in the Olmstead case there is still an electronic invasion. When we sign up for these
services we might want to share our location with our friends and family only and our privacy or
16
Id
17
Id
18
Kilbourn v. Thompson , 103 U.S. 168, 13 Otto 168, 26 L. Ed. 377, (1880)
19
Olmstead v. United States, 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944, (1928)
20
Katz v. United States 389.US 347 (1967)
21
Id
Law Review Paper 8
“phone booth”22 should follow us where ever we are going as and we should be protected from
any unreasonable surveillance or digital information search.
In the case Sveum v. Wisconsin, the seventh circuit State Court of Wisconsin ruled that
the police can attach or use GPS to secretly track an individual’s movements without obtaining a
search warrant.23 The ruling of this case came in 2003 and was upheld in 2009 by the Appeals
Court of Wisconsin in a case involving Michael Sveum, a Madison, Wisconsin man who was
under investigation for stalking a woman. In 2003 a woman and ex- girlfriend of Sveum being
fearful for her safety had gone to police with suspicions of him stalking her. Needing concrete
evidence, the police obtained a warrant to place a GPS on Sveum car and secretly attached it
while the vehicle was parked in his driveway. This tracking device was used to record Sveum’s
car’s movements for five weeks and after that period it was retrieved and downloaded. The
information retrieved showed a detail history of the vehicle’s location confirming the woman’s
assertions that she was being stalked. These actions prompted the police to then obtain a
second warrant to search Sveum’s car and home and during the search they found more
incriminating evidence and arrested him. He was convicted of stalking and sentenced to prison.
The police clearly had “probable cause”24 and rightfully obtained search warrants but
Sveum’s defense attorney argued the tracking violated his Fourth Amendment protection against
unreasonable search and seizure because the device followed him into areas out of public view,
such as his garage. The Appeal court of Wisconsin disagreed and held that no search or seizure
22
Id
23
State v. Sveum, WI App 81, 769 N.W.2d 53, (2009)
24
U.S.Const. amendment IV
Law Review Paper 9
occurs when police use a GPS device to track a vehicle while it is visible to the general public
following the precedent of U.S. Supreme Court cases U.S. v. Knotts 25, and U.S. v. Karo,26.
The Knotts case held that it did not implicate the Fourth Amendment to use a “beeper”27
to track a vehicle in public view, while Karo held it did violate the Fourth Amendment to use a
tracker to obtain information that could not be obtained by observation from outside a
“property’s cartilage”.28 In both cases the tracking devices were attached to property inside the
vehicles. The Court of Appeals applied Knotts and Karo to this case and concluded that the
Fourth Amendment was not implicated in this case, because there was no evidence the police
used the GPS device to track the car’s movements within Sveum’s garage. The court also relied
on a Seventh Circuit case, holding that attaching a GPS device to a car was not a Fourth
Amendment search following a ruling in U.S. v. Garcia. 29 The Seventh Circuit concluded there
was no difference between police physically following a car, and tracking it via satellite. The
Court of Appeals agreed that the tracking did not violate constitutional protections because the
device only gave police information that could have been obtained through visual surveillance
and even though the device followed Sveum’s car to private places, an officer tracking Sveum
could have seen when his car entered or exited the garage. The judge also held that attaching the
device to the car in Sveum’s driveway was also not a violation because the driveway was a
public place. “We discern no privacy interest protected by the Fourth Amendment that is invaded
when police attach a device to the outside of a vehicle, as long as the information obtained is the
same as could be gained by the use of other techniques that do not require a warrant,” the judge
25
U.S. v. Knotts, 460 U.S. 276 (1983)
26
U.S. v. Karo, 468 U.S. 705 (1984)
27
Id Knotts
28
Id Karo
29
U.S. v. Garcia. 474 F.3d 994 (7th Cir. 2007)
Law Review Paper 10
wrote 30. As Wisconsin’s law currently stands police can use GPS on or in cars to track people
without violating their constitutional rights even if the drivers are not “suspects”31 and officers
do not need to get warrants beforehand because GPS tracking does not involve a search or a
seizure according a three-judge panel based in Madison who presided over the case. This means
police are free to secretly track anyone’s public movements with a GPS device and services such
as Google latitude.
Individual states seem to have varying opinions on whether surveillance utilizing
mediums such as internet enabled GPS or GPS violate the constitution. In the case of
Commonwealth v. Connolly which was heard by the Supreme Court of Massachusetts, the courts
ruled that the police may not place GPS tracking devices on cars without first getting a warrant,
reasoning that the installation of the GPS device was a seizure of a suspect's vehicle. 32 This does
not mean that if the GPS systems such as an OnStar is already installed in the car that it cannot
be utilized. According to this decision in this case, “when an electronic surveillance device is
installed in a motor vehicle, be it a beeper, radio transmitter, or GPS device, the government's
control and use of the defendant's vehicle to track its movements interferes with the defendant's
interest in the vehicle notwithstanding that he maintains possession of it”.33State laws are
applicable to that individual state and even though this ruling only applies to Massachusetts it
shows the differing perspectives on the issue when looked at by different states.
OnStar, a General Motors related company that provides communication, tracking and
emergency response services to car owners by using different technological applications like
computers, wireless telecommunications and the Global Positioning System to address their
30
State v. Sveum, WI App 81, 769 N.W.2d 53,( 2009)
31
Id
32
Commonwealth v. Connolly, 454 Mass. 808, 913 N.E.2d 356, (2009)
33
Id
Law Review Paper 11
needs. Similar to Google, the OnStar website states that they too can liberally share our
information: “We may share the information we collect with our service providers so that they
can provide services to us. This would include sharing your information with roadside assistance
providers, emergency service providers, the police, our wireless service providers, credit card
processors, data management companies and others as may be required, to deliver the OnStar
services. We may also share information we collect about you or your car as required by law, or
to protect our rights or property or the safety of you or others”.34
In 1999 after sharing an individual’s information with the FBI, OnStar was sued. The
case tried and heard in San Francisco was sealed to protect the parties involved but apparently
showed that FBI had utilized the OnStar platform to monitor the movements of the individual. It
was unclear whether the FBI had “Probable Cause” 35 to monitor that “suspect” 36 or had
obtained a warrant but they nonetheless were allowed by OnStar to track the individual’s
whereabouts using the OnStar device in the individual’s car. The device in the car was so
sophisticated that the FBI was able to turn it on and listen to the “suspect” 37without his
knowledge and when the case was tried the United States Court of Appeals for the Ninth Circuit
in San Francisco, did not have a problem with the government converting safety and
communications system into “roaming in-car wiretaps” or surveillance tool, as long as it didn’t
impact the safety features. This case can be directly contrasted with the recent state court case of
People v. Weaver that was heard in the State of New York in which it was held by State Court
34
OnStar,OnStar Privacy Statement, November 2009, http://www.onstar.com/us_english/jsp/privacy_policy.jsp
35
U.S. amendment IV
36
Id
37
Id
Law Review Paper 12
that the police must get a warrant to use the trackers or to monitor persons utilizing the internet
or GPS, even on cars and people traveling the public roads.38
The increasing pervasiveness of GPS units being used in smartphones with services such
as Google latitude and in cars with services such as OnStar has now given law enforcement the
capability of learning the specific location of individuals without that person’s consent and the
interpretation of how legal precedent should bear on these technologies differ from state to state.
However, there seems to be ample protection in place for consumer privacy concerns regarding
third party or government access to location information. The monitoring of an individual’s
movements utilizing Google or OnStar does not in itself encroach our first or fourth amendment
rights because when a person is in the public they are open to public scrutiny, If they are in a car
that vehicle may be observed by anyone. “The fact that federal law enforcement may use these
tracking devices without a warrant does not infringe on a person anymore than if federal agents
were to visually follow us around”. 39It is recognized by the Supreme Court that a Fourth
Amendment search may occur through the use of advanced technology to reveal detailed and
personal information about individuals and these characteristics apply to GPS tracking, OnStar,
and Google Latitude but it is maintained that a warrant should be required for its use and there
must be “probable cause”40 and limited scope of usage.
Pursuant to 18 U.S.C. § 2518(11)(a) and (b), “ the government may obtain authorization
to intercept wire, oral, and electronic communications of specifically named subjects without
specifying with particularity the premises within, or the facilities over which, the
38
People v. Weaver, 52 A.D.3d 138, 860 N.Y.S.2d 223, (2008)
39
40
U.S.Const. amendment IV
Law Review Paper 13
communications will be intercepted” 41which means monitoring our activities utilizing Google’s
Latitude platform can be permissible under certain circumstances and ; “An application for the
interception of wire and electronic communications of specifically named subjects may be made
without specifying the facility or facilities over which the communications will be intercepted
when it can be shown that the subject or subjects of the interception have demonstrated a purpose
to thwart interception by changing facilities”.42 This does not give the government “probable
cause”43 but gives them the right to access our personal information by mapping our activities if
there is “Probable Cause”44.
41
18 U.S.C. § 2518(11)(a) and (b)
42
Id
43
U.S.Const. amendment IV
44
Id