Thursday, April 4, 2013

Area court case highlights legal thicket surrounding GPS data ...

Admit it: You fear that the smartphone in your purse or pocket is just a glorified tracking device for the New World Order.

Well, you?re right; it can be. And courts around the country just now are setting the hoops that police and federal agents must jump through to get permission to track you in real time.

A recent appeals court ruling on a Kansas City, Kan., drug case could help define what law enforcement must do to get cellphone providers to give up the GPS data.

Because the technology and the data that it creates are so new, courts are being patient about incorporating them into an emerging area of law, said Alan Butler, appellate advocacy counsel for the Electronic Privacy Information Center.

?What courts are doing now is sorting out the technology as it?s ramped up and beginning to understand the technology,? Butler said.

That ?sorting out? process is nowhere more evident than in the 10th U.S. Circuit Court of Appeals? ruling in the case of Samuel Barajas, who is serving a life sentence after his 2011 conviction in Kansas City, Kan., for participating in a large methamphetamine conspiracy.

Three times in their 18-page ruling, judges lamented that the law on electronic surveillance is ?unsettled.?

Experts say that even basic understandings of criminal law are in flux when the question of tracking GPS signals from smartphones comes into play. For example, if federal agents want access to smartphone-generated GPS data, does it constitute a ?search? when the cellphone provider sends a wireless ?ping? to the phone, which then responds with its position? If so, do agents then need to go before a judge and get a search warrant?

In August, the 6th U.S. Circuit Court of Appeals in Cincinnati ruled for the first time on the question, saying that three days of pinging on a drug dealer?s phone did not constitute a search.

?When criminals use modern technological devices to carry out criminal acts and to reduce the possibility of detection, they can hardly complain when the police take advantage of the inherent characteristics of those very devices to catch them,? the court in Ohio ruled.

Though tentative, the Kansas ruling, released last month, provided a different perspective.

Barajas, who participated in a San Diego meth ring, came under suspicion in 2009 when his phone number began turning up on wiretaps that had been authorized by a California judge. Still, other than ?Samy,? his first name, investigators had no idea who he was, other than he was sending a courier to Prairie Village.

Following the GPS data, obtained from the cellphone company, agents arrested Barajas in San Diego and shipped him to Kansas to face federal drug charges.

On appeal, Barajas? lawyers argued that the trial judge should have tossed out the GPS evidence because the sworn statements filed to support the wiretap orders didn?t provide ?probable cause,? they contended, for cellphone tracking.

But even as appeals judges upheld Barajas? conviction on other grounds, they offered a tentative endorsement that GPS tracking constituted a search and required search warrants. The judges wrote that they would ?assume without deciding that pinging is a search.?

And if federal agents had any question about how to write a search warrant affidavit, the court answered with specific guidance on showing a connection between illegal activity and the need for GPS data.

?(Barajas) was using the phones for criminal activity but the government did not know who ?Samy? was, thus access to GPS data would help the government identify ?Samy? and pursue the organization,? Judge Paul J. Kelly Jr. wrote for a three-judge panel.

Both the 10th and 6th circuits ultimately ruled in favor of the government by saying that evidence gathered by investigators who rely in good faith on warrants, perfectly drafted or not, should be admitted.

But the courts? work on GPS tracking still is evolving, said University of Missouri-Kansas City law professor Sean O?Brien.

The best test case, O?Brien said, would be one in which investigators had no warrant at all. The pace of technological change is likely to provide that case at some point.

?Technology is a game-changer here,? O?Brien said. ?The framers of the Constitution couldn?t have imagined GPS technology.?

A study of hundreds of U.S. law enforcement agencies released in September found that the ?overwhelming majority? engage in some kind of cellphone tracking. And though some require a search warrant supported by probable cause, other agencies get the information with subpoenas or court orders, which require much less supporting information.

Some police agencies surveyed by the American Civil Liberties Union actually depend on the cellphone providers to tell them what kind of paperwork and supporting information they must have to begin cellphone tracking.

The standard of the supporting information can be an important privacy protection, said Doug Bonney, legal director for the American Civil Liberties Union of Kansas & Western Missouri.

Probable cause for a search warrant means that officers have demonstrated that they are more likely than not to find evidence of a crime.

If a request for GPS data is treated as that for a pen register, a device that simply captures a list of numbers called by a particular phone, a prosecutor merely has to certify that the information recovered by the order somehow is ?relevant? to an ongoing investigation.

?I hope (courts) will hold that this is a search because otherwise we?re in ?Brave New World,? ? Bonney said. ?This is all cutting edge.?

Thus far, the 8th U.S. Circuit Court of Appeals, which covers Missouri, has not ruled in a GPS tracking case.

But Butler said cases are lining up in state and federal courts across the country that could push the U.S. Supreme Court to define what police must do to follow your every move.

?It?s an important issue, and questions like this will become the rule rather than the exception,? said Branden A. Bell, a Kansas City defense lawyer who represents Barajas.

Bell last month filed an appeal, asking all of the 10th Circuit judges to consider the standards that investigators must meet before they transform a cellphone into a tracking device. The court denied that motion for a rehearing.


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