Court of Appeals allows WARRANTLESS GPS Tracking on Virginians

[skidmark]

So... What would happen if a citizen's group started putting GPS trackers on state-use cars?

I mean, there's already no expectation of privacy for government workers, AND it looks like, since the gov't car can usually be found on publicly accessible areas, that any expectation for that privacy is waved, as well.

Nothing.

Try reporting a government car parked, during working hours, in a spot where no government work woul be expected to be going on. Try reporting a government worker, in government work clothes, obviously working at a private enterprise, during normal work hours.

Try finding someone in government who actually cares. Then try finding some citizens who find out about these things who care enough to contact the government and complain.

But that's not germane to the issue. What's at question is how far the government can intrude into your life by defining what is no longer an expectation of privacy.

stay safe.

 

[Repeater]

So... What would happen if a citizen's group started putting GPS trackers on state-use cars?

I mean, there's already no expectation of privacy for government workers, AND it looks like, since the gov't car can usually be found on publicly accessible areas, that any expectation for that privacy is waved, as well.

Possibly arrested?

Well, read this cautionary tale from Colorado:

Weld County private eye charged with stalking in unique case

A private investigator was arrested and charged with felony stalking recently in Weld County for doing what colleagues say is the backbone of their profession: surveillance.

Timothy Allan Stitt, 42, was charged in Weld County District Court for putting a tracking device on the car of Shantele Sherman in LaSalle last month.

Stitt was charged under a subsection of the stalking statute. People violate the law if they repeatedly follow, approach, contact, place under surveillance or make any form of communication with another person — or a member of that person's family — and cause him or her "serious emotional distress."

The statute does not require the complainant to receive professional counseling in order to prove the criteria are met.

But Ross said police also follow possible criminals, and that distresses them. Just like police, private investigators perform a legitimate service, he said.

Defendant Discusses Unusual Stalking Case

So, the cops can do it, but no one else may. Seems like asymmetrical warfare, doesn't it?

 

[Citizen]

Hee, hee. Well, if there is no warrant, there is really no record that the police put it there, right? So, if it suddenly falls off, or gets re-attached to a semi full of watermelons headed for Quebec, nobody can prove I did it. Right?

"Oh! Was that your GPS tracker I stomped into the pavement, Officer? I'm sorry."

No! Wait! What if I find a GPS tracker on my car, then promptly drive to the nearest 7-Eleven or donut shop and attach it to a police cruiser? "Hey! That guy is following our patrol cops around to all their calls!"

Hee, hee. I must be a little prescient. You just knew that sooner or later somebody was gonna find one of these things on their car:

http://fourthamendment.com/blog/ind...eystone_kops_sending_six&more=1&c=1&tb=1&pb=1

That is a great blog, by the way. I follow it regularly. You really get to see what the courts actually think of your 4A rights.

 

[Repeater]

Hee, hee. I must be a little prescient. You just knew that sooner or later somebody was gonna find one of these things on their car:

http://fourthamendment.com/blog/ind...eystone_kops_sending_six&more=1&c=1&tb=1&pb=1

That is a great blog, by the way. I follow it regularly. You really get to see what the courts actually think of your 4A rights.

I saw that. i was going to post a link; you did so first.

Have you seen the pictures of the device? It resembles a bomb. Go to Wired first:

Caught Spying on Student, FBI Demands GPS Tracker Back

And here for the pictures.

 

[Citizen]

I saw that. i was going to post a link; you did so first.

I was wondering why you hadn't; it was two days old already when I posted it. I figured you taking some time off or something.

I loved the line in the article where the ACLU said that is the kind of thing they like to throw lawyers at.

We throw lead. They throw lawyers. God, but I think having a lawyer thrown at me would be scarier!

 

[user]

1) People who leave personal property in public places are deemed to have abandoned the property - it becomes the property of any person who "trives" it (a "treasure trove" is not "buried", but found and converted to one's own possession).

2) Larceny is a crime against possession, not title. In Virginia, the taking of personal property valued in excess of five dollars is "grand larceny". It's also the civil "intentional tort" of "conversion", for which a claim for punitive damages will lie. Ergo:

3) The FBI agents who took the GPS were stealing it from the person who was in possession of it, probably committing a crime in California, and certainly leaving themselves open for civil suits.

(If it had been me, I'd have gone to a truck stop and stuck the thing on the bottom of the truck bearing license plates from as far away as possible.)

 

[Thundar]

I'm wondering if the day will come when:

1) An Entrepreneur invents such a device and offers it for sale, including Virginia, followed by ...

2) The General Assembly chooses to BAN the device, due to LEO opposition.

Stay safe? HOW?

GPS operates on a known RF band. There are jammers now. Problem is that you cannot use your GPS and a GPS jammer at the same time.

 

[AbNo]

Problem is that you cannot use your GPS and a GPS jammer at the same time.

Solution: Remember how to get from your house to the grocery store WITHOUT your GPS. :dude:

 

[Neplusultra]

GPS operates on a known RF band. There are jammers now. Problem is that you cannot use your GPS and a GPS jammer at the same time.

GPS jammers are a bit expensive and illegal to operate IIRC. Same as cell jammers.

 

[AbNo]

GPS jammers are a bit expensive and illegal to operate IIRC. Same as cell jammers.

If you were to BUY one, yeah. The parts can be had for less than.... $50? $20?

And anyway, I don't know what jammer you're talking about. This is a a simulator to test my GPS in my vehicle.

 

[TFred]

Old thread alert!!!

With no intention of digging up this old topic, I also didn't want to post a new thread that was Off Topic for the forum. Having said that...


THIS is a form of GPS tracking I can get behind and fully support!!

TFred

Two armed robberies in Stafford County on the night of December 4 yielded standard carry items, including cell phones.

Cell phone leads to Stafford robbery suspect

[snip]
According to an affidavit for a search warrant filed in Stafford Circuit Court, one of the stolen phones was equipped with “family locator,” a service that allows a phone to be located via GPS satellites.

The victim’s mother and a deputy were able to trace the phone to a residence on Spruce Lane, not far from where the robberies occurred.
[snip some more]

BUSTED!!

 

[riverrat10k]

Other States have recently had the opposite ruling.

http://gpstrackinginfo.com/law-enforcement-gets-bad-news-on-gps-tracking/1725

http://www.wboc.com/Global/story.asp?S=13686429

Did not do a ton of due dilegence on these stories, just the results of a quick search. I think the Va. rulings will be challenged again if this kind of surveilance continues.

 

[TFred]

http://gpstrackinginfo.com/law-enforcement-gets-bad-news-on-gps-tracking/1725

http://www.wboc.com/Global/story.asp?S=13686429

Did not do a ton of due dilegence on these stories, just the results of a quick search. I think the Va. rulings will be challenged again if this kind of surveilance continues.

From the first link, we have this short snip from the opinion:

Judge Douglas H. Ginsburg in his decision wrote that "A reasonable person does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination, and each place he stops and how long he stays there; rather, he expects each of those movements to remain disconnected and anonymous."​

This judge is the first I've seen to significantly even start to address the impact of technology on the rights we have come to know and depend on. The Fourth Amendment was written about people, on both sides: the searchERS and the searchEES. Before GPS tracking came along, in order to conduct an equivalent search, it took a lot of time and effort, which equate to money, the people's money, and money which must be spent wisely and with accountability. That finite amount of resources naturally capped the level of scrutiny that average citizens could fall under by their government employees.

Technology changes that balance, making it cost virtually nothing to track a person's movements 24/7/365 for as long as anyone with a whim might wish to. Where before, such scrutiny had real costs, which had to compete among real solid suspects and cases, now you can throw a GPS device on just about anyone's car and eventually you will get lucky.

This judge's short statement recognizes the fact that while it is possible to watch a person that closely, it is not reasonable. And "reasonable" is probably the key word in the Fourth Amendment.

TFred

 

[Citizen]

SNIP This judge's short statement recognizes the fact that while it is possible to watch a person that closely, it is not reasonable. And "reasonable" is probably the key word in the Fourth Amendment. TFred

Good points.

One thing I never see mentioned in 4A analysis is the simple element of government power--how the government gains more leverage from the information it obtains and property it seizes.

The courts seem to have reduced the 4A to merely a privacy consideration. That may sound good to sheeple who care about embarrassing things being found out; but anybody who attended the quaint little vacation resort run by the USMC at Parris Island lost most notions of privacy by the time he graduated--bunking, showering, snoring, toileting with other hairy strangers.

But the real question is what can the government do with the information it obtains.

The 4th Amendment grew directly out of the Paxton case and the Writs of Assistance. There is a traceable record directly from that case to James Madison, author of the Bill of Rights. Privacy was not the main consideration. Being left alone was the main consideration, near as I can tell. And, a close second was being not left alone without reason, whenever, where ever, however the searcher felt like. No probable cause, no affidavit, no independent magistrate review.

And, of course the biggest point carefully unmentioned by the government was that colonists were thwarting the government's ridiculous revenue-generating policies (taxes). Meaning the government agents were using their broad, general search powers under the Writs of Assistance to detect and collect what the colonists were justly avoiding paying. Meaning the 4A helps the people bypass unjust laws, just like the never-mentioned-by-courts jury nullification gives the people power to resist unjust government policies.

Balance of power. Negotiating position. That's what the 4A is about--keeping the government from obtaining more, except where it is genuinely necessary to get criminals out of other people's lives.

 

[user]

§ 46.2-1088.6. Motor vehicle recording devices.

There has been a bit of a debate in the last couple of days among members of the Virginia Trial Lawyers' Association, about whether the following statute applies to private parties doing surveillance using external GPS devices attached to vehicles. I came to the conclusion that it does not, and that the rationale in Foltz applies to private parties (such as divorce investigators) as well:

§ 46.2-1088.6. Motor vehicle recording devices.

A. As used in this section:

"Accessed" means downloaded, extracted, scanned, read, or otherwise retrieved.

"Owner" means a person having all the incidents of ownership, including the legal title of a vehicle whether or not such person lends, rents, or creates a security interest in the vehicle; a person entitled to the possession of a vehicle as the purchaser under a security agreement; or a person entitled to possession of the vehicle as the lessee pursuant to a written lease agreement, provided such agreement at inception is for a period in excess of three months.

"Recorded data" means the data stored or preserved electronically in a recording device identifying performance or operation information about the motor vehicle including, but not limited to:

1. Speed of the motor vehicle or the direction in which the vehicle is traveling, or both;

2. Vehicle location data;

3. Vehicle steering performance;

4. Vehicle brake performance including, but not limited to, whether brakes were applied before a crash;

5. The driver's seatbelt status; and

6. Information concerning a crash in which the motor vehicle has been involved, including the ability to transmit such information to a central communications system.

"Recording device" means an electronic system, and the physical device or mechanism containing the electronic system, that primarily, or incidental to its primary function, preserves or records, in electronic form, data collected by sensors or provided by other systems within the vehicle. "Recording device" includes event data recorders (EDRs), sensing and diagnostic modules (SDMs), electronic control modules (ECMs), automatic crash notification (ACN) systems, geographic information systems (GIS), and any other device that records and preserves data that can be accessed related to that vehicle.

B. Recorded data may only be accessed by the motor vehicle owner or with the consent of the motor vehicle owner or the owner's agent or legal representative; except under the following circumstances:

1. The owner of the motor vehicle or the owner's agent or legal representative has a contract with a third-party subscription service that requires access to a recording device or recorded data in order to perform the contract, so long as the recorded data is only accessed and used in accordance with the contract;

2. A licensed new motor vehicle dealer, or a technician or mechanic at a motor vehicle repair or servicing facility requires access to recorded data in order to carry out his normal and ordinary diagnosing, servicing, and repair duties and such recorded data is used only to perform such duties;

3. The recorded data is accessed by an emergency response provider and is used only for the purpose of determining the need for or facilitating an emergency response. Such persons are authorized to receive data transmitted or communicated by any electronic system of a motor vehicle that constitutes an automatic crash notification system and utilizes or reports data provided by or recorded by recording devices installed on or attached to a motor vehicle to assist them in performing their duties as emergency response providers;

4. Upon authority of a court of competent jurisdiction; or

5. The recorded data is accessed by law enforcement in the course of an investigation where constitutionally permissible and in accordance with any applicable law regarding searches and seizures upon probable cause to believe that the recording device contains evidence relating to a violation of the laws of the Commonwealth or the United States.

C. The consent of the motor vehicle owner or the owner's agent or legal representative for use of recorded data for purposes of investigating a motor vehicle accident or insurance claim shall not be requested or obtained until after the event giving rise to the claim has occurred, and shall not be made a condition of the defense, payment or settlement of an obligation or claim. For underwriting and rating purposes, the motor vehicle owner may provide his consent either directly to the insurer or through and as certified by a named insured.

D. If a person or entity accesses recorded data pursuant to subdivisions B 2 or B 3, such entity or person shall not transmit or otherwise convey the recorded data to a third party unless necessary to carry out their duties thereunder.

E. When the recording device and recorded data are not removed or separated from the motor vehicle, the ownership of the recording device and recorded data survives the sale of the motor vehicle to any nonbeneficial owner such as an insurer, salvage yard, or other person who does not possess and use the motor vehicle for normal transportation purposes.

F. The failure of an insurer to obtain access to the recorded data shall not create, nor shall it be construed to create, an independent or private cause of action in favor of any person.

 

[Repeater]

Perhaps that statute could be amended

There has been a bit of a debate in the last couple of days among members of the Virginia Trial Lawyers' Association, about whether the following statute applies to private parties doing surveillance using external GPS devices attached to vehicles. I came to the conclusion that it does not, and that the rationale in Foltz applies to private parties (such as divorce investigators) as well:

I forgot about that statute. In its present form, it seems an ill fit to protect Virginians from warrantless GPS-tracking; however, it appears it could be very helpful if amended to include GPS devices.

 

[TFred]

There has been a bit of a debate in the last couple of days among members of the Virginia Trial Lawyers' Association, about whether the following statute applies to private parties doing surveillance using external GPS devices attached to vehicles. I came to the conclusion that it does not, and that the rationale in Foltz applies to private parties (such as divorce investigators) as well:

Can you expound on your reasons for this? Specifically, were they based on the statute, or on something in the Foltz opinion? If the statute, or both, I am very curious where you may feel that the statute is short on protecting a vehicle owner from third party GPS tracking.

Thanks,

TFred

 

[user]

On the one hand, the statute specifically includes "...geographic information systems (GIS), and any other device that records and preserves data that can be accessed related to that vehicle.", and I wouldn't argue with the proposition that GPS devices fall within that definition.

On the other hand, the device covered by that statute has to be one that records information generated by subsystems within the vehicle, and thus would exclude an external device, not normally an integral part of the car, placed by another person. ("Recording device" means [a device that]... records, in electronic form, data collected by sensors or provided by other systems within the vehicle.) Furthermore, "recorded data" means information that is "stored or preserved". When one uses a GPS tracking device, that device does neither. Rather, it reports information to a remote system, where the data is stored or preserved. Everything the GPS unit itself does is transitory and ephemeral.

I think that this statute is designed purely to protect information generated by the vehicle itself, such as GM's "OnStar" systems, and does not provide any protection from external devices placed on the car for surveillance purposes.

By the way, I am not advocating the Government's position - I don't like it, and I agree with Judge Ginsberg's opinion. Privacy is not an on/off kind of thing - there are degrees of expectations of privacy, and it may be unreasonable (under the Fourth Amendment) to intrude on a limited expectation of privacy. But that's my opinion, not law.

 

[peter nap]

By the way, I am not advocating the Government's position - I don't like it, and I agree with Judge Ginsberg's opinion. Privacy is not an on/off kind of thing - there are degrees of expectations of privacy, and it may be unreasonable (under the Fourth Amendment) to intrude on a limited expectation of privacy. But that's my opinion, not law.

That's absolutely true as usual User, but the public is becoming anesthetized to surveillance. That's unfortunate.

Yesterday at breakfast, I was discussing the expectation oof privacy with Curtis and Grapeshot.

Since we were on private property, they asked if there wasn't an expectation in the Diner.

There was considerable interest in the gun I was wearing but the biggest attention getter was the shoulder rigged camera with full four channel sound and a one channel scratch file.

I just pointed to the security camera in the corner and said you couldn't have much privacy with that staring at you. It's so common now, very people realize it.

 

[TFred]

On the one hand, the statute specifically includes "...geographic information systems (GIS), and any other device that records and preserves data that can be accessed related to that vehicle.", and I wouldn't argue with the proposition that GPS devices fall within that definition.

On the other hand, the device covered by that statute has to be one that records information generated by subsystems within the vehicle, and thus would exclude an external device, not normally an integral part of the car, placed by another person. ("Recording device" means [a device that]... records, in electronic form, data collected by sensors or provided by other systems within the vehicle.) Furthermore, "recorded data" means information that is "stored or preserved". When one uses a GPS tracking device, that device does neither. Rather, it reports information to a remote system, where the data is stored or preserved. Everything the GPS unit itself does is transitory and ephemeral.

I think that this statute is designed purely to protect information generated by the vehicle itself, such as GM's "OnStar" systems, and does not provide any protection from external devices placed on the car for surveillance purposes.

By the way, I am not advocating the Government's position - I don't like it, and I agree with Judge Ginsberg's opinion. Privacy is not an on/off kind of thing - there are degrees of expectations of privacy, and it may be unreasonable (under the Fourth Amendment) to intrude on a limited expectation of privacy. But that's my opinion, not law.

Thanks for your further explanation.

To simplify, as I understand your posts, you are basing your opinion on the fact that a GPS tracking device is "attached to" the vehicle, as opposed to "built into" the vehicle, either by the factory, or by a dealer or mechanic at the request, or at least approval, of the owner.

I can probably agree with you on those points.

Just some thoughts, there do exist GPS devices which record data on the device, although the usefulness of such a device that only recorded, and did not transmit, would be diminished if one were trying to track a car in real time. If just for later analysis, that would work fine though.

I also found the list of "recorded data" item types to be rather interesting. Of the list, "2. Vehicle location data" cannot possibly be generated solely from information contained within the vehicle. GPS radio signals, or some other external data is required to ascertain this information. All other information on that list is possible to generate from information entirely contained within the vehicle. (The most difficult would be direction of travel, but they do still make compasses, although I don't know that any compass recording devices would be commercially available.)

This is important, because the phrase that you are keying on, "data collected by sensors or provided by other systems within the vehicle" doesn't change the fact that GPS data is by definition not contained within the vehicle, and in fact, is externally generated. It is the analysis of this external data which takes place within (or attached to) the vehicle, which then allows the location, speed and direction to be ascertained, transmitted, and recorded.

So... to satisfy your line of reasoning, it must come down to whether or not the GPS device itself is "contained within the vehicle". I'm not so sure that "attached" can't meet that.

Just my additional thoughts...

TFred