De-FUD: MA GPS Tracking Case September 18, 2009
Not to bite the hand that feeds us, but a recent post on Slashdot about a Massachusetts GPS Tracking case got it really wrong.
The case held that GPS tracking of a car requires a warrant, which the post seems to think is an invasion of privacy. True. It is. But Massachusetts is one of only a handful of states that says you even need a warrant to slap a GPS tracker on a car. Most states, and most Federal Courts, say that it’s fine to do so without a warrant as long as the GPS device isn’t inside the car. So, Massachusetts is more protective of rights than most of the rest of the country on this issue.
Second, the post says that Justice Gants dissented. He did not. He agreed with the court, but on different grounds. The majority of the court said that putting the GPS device on a car constituted a seizure of the car under the Fourth Amendment. That because the Police were using the car for their own purposes, they needed a warrant.
Justice Gants, and two other justices, said that this constitued a search under the Fourth Amendment. In other words, that people have a reasonable expectation of privacy that their car will not be followed 24/7 by police officers. He’s also wrong.
First, the reasonable expectation of privacy isn’t from just police intervention, it’s a general reasonable expectation of privacy. Second, police *can* follow your car 24/7 without a warrant. Yes, it is more difficult than using a GPS device, but ease of the investigation doesn’t bear on whether you have a reasonable expectation of privacy there.
I’d like to be clear. I agree that putting devices on the car is a seizure under the Fourth Amendment, and should require a warrant. So I don’t disagree with the result, just the reasoning of the concurrence.
One last note: While I’m talking about this in Fourth Amendment terms, and the case technically rested on the Massachusetts Declaration of Rights, the relevants standards are unchanged (see the concurrence at page 3).
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