GPS, Privacy and the Supreme Court

Privacy continues to be in the headlines. Companies and governments are garnering and analyzing information that they obtain through means some find questionable in unprecedented ways.

Recently, I wrote a column about Carrier IQ’s business of allegedly tracking cell data. Many readers use Google maps and rely on the Google Traffic tool to indicate whether traffic is moving or stalled, but the fact that Google uses Global Positioning System data from wireless devices is often a surprise.

Wireless devices (cellsphones and tablets) can tell others where you are at any given moment. Websites and blogs track usage including what pages users view and the time spent on each page, and other trackers even can tell whether users open email. With a user’s permission, based on Google’s Terms of Service, Google reads gmails electronically to pinpoint the type of advertising the writer or recipient might respond to. The list goes on.

We are now seeing lawsuits in which wireless data is critical evidence. However, there is a certain amount of public outrage, which has led to congressional hearings to address the sense of invasion of privacy that people are feeling. Companies are listening. Recently, in reaction to the public outcry about the disclosure that Carrier IQ was surreptitiously collecting user data, Sprint announced that Carrier IQ would be removed from its 26 million devices.

Court Clarifies Constitution, GPS Relationship

Just because GPS data exists does not mean it may be used to track your whereabouts for police agencies.

For example, the data about an alleged drug dealer’s location obtained from a GPS device attached to his car without a warrant violated the defendant’s Fourth Amendment guarantee of privacy. In US v. Jones, the U.S. Supreme Court ruled 9-0 that prosecutors could not use the ill-gotten GPS data. However the Court’s opinion includes a broader reference to GPS data from wireless devices:… cell phones and other wireless devices now permit wireless carriers to track and record the location of users — and as of June 2011, it has been reported, there were more than 322 million wireless devices in use in the United States.So even though the Court ruled against using location data obtained without a warrant in a criminal case, it also effectively acknowledged that wireless GPS data may be the next area of privacy concern.

However, when parties voluntarily provide information to Internet sites, their expectation of privacy is different. According to Justice Sotomayor:People disclose the phone numbers that they dial or text to their cellular providers, the URLS that they visit and the e-mail addresses with which they correspond to their Internet service providers, and the books, groceries and medications they purchase to online retailers . . . I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year.So the Supreme Court likely has more to say about privacy protection as it relates to GPS and Internet data.

Where Was My Spouse that Night?

The New York Times recently reported that GPS devices are in widespread use in divorce proceedings. GPS devices provide a new means to determine if a spouse is being deceptful about his or her whereabouts. Anybody can hire a private investigator to buy an inexpensive GPS device and attach it a spouse’s car for tracking purposes. During divorce proceedings, the GPS location data can reveal the various times and locations of a wayward spouse’s movements to prove infidelity.

Also, millions of individuals use Google Latitude, Facebook’s FourSquare, and ShopKick to willingly share their location with friends and retailers. Nonetheless, they may not realize that using these GPS services creates historical data about their whereabouts — data that may be used in lawsuits.

However, the Supreme Court has not ruled on how Constitutional privacy protection may apply in civil disputes for GPS data. Whether parties in litigation may easily subpoena GPS location data is still in question.

Many states have laws about recording telephone and other conversations — with or without the knowledge of the people being recorded. So it is likely that states will eventually address tracking GPS information, perhaps in a similar way.

Federal Government Wants to Harvest Data Too

The FBI recently sent a Request for Information to determine the feasibility and cost of building a technology that collects and assesses Internet and GPS data. The FBI requests the following from vendors: The application must have the ability to rapidly assemble critical open source information and intelligence that will allow [the FBI] to quickly vet, identify, and geo-locate breaking events, incidents, and emerging threats.The FBI would like to harvest information from Twitter, Facebook and other social media sites looking for criminals. It is likely that privacy protection groups will weigh in on the FBI’s plans, and it will be interesting to see what they will argue.

In Conclusion

Data related privacy — whether through GPS, wireless devices or the Internet — will undoubtedly continue to be a hot topic for courts and legislatures around the world.

As the use of social media grows, it will be difficult for sites to set the boundaries of privacy without considering more and more laws.

Peter S. Vogel

E-Commerce Times columnist Peter S. Vogel is a trial partner atGardere Wynne Sewell, where he is chair of the eDiscovery Team and Chair of the Technology Industry Team. Before practicing law, he was a systems programmer on mainframes, received a masters in computer science, and taught graduate courses in information systems and operations research. His blog coverscontemporary technology topics.Vogel can be reached at [email protected].

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