Washington, DC (February 6, 2009) -- A diverse group of civil liberties and religious organizations this week weighed in on the question of whether police need a warrant in order to conduct surveillance of personal vehicles by secretly attaching global positioning satellite (GPS) transmitters. The case, which is scheduled to be heard next month in New York’s highest court, has profound implications for the privacy rights of individuals and organizations.
Low-cost GPS transmitters can be secretly attached to a vehicle and pinpoint the vehicle’s location on public or private property, within a few feet or yards, to virtually any computer with an internet connection. The devices are useful for tracking a vehicle or person in real-time, but the data also can be permanently stored and subjected to pattern analysis, revealing not just a person’s whereabouts, but his habits, associations, who his friends are, where he shops, banks and goes to church, and a host of other information. The coalition argues that court supervision should be required to protect First and Fourth Amendment privacy rights.
In People v. Weaver, scheduled for argument in the New York Court of Appeals March 24, the court will be considering whether a police officer, in his own discretion, may undertake GPS surveillance of individuals without any judicial oversight at all. The court below held that there is no obligation to obtain a warrant prior to undertaking such monitoring. Members of the public have no way of knowing if their movements are subject to electronic surveillance from which there is no legal protection.
The civil liberties alliance filed an amicus curiae, or “friend of the court,” brief arguing such unfettered surveillance is unconstitutional and ill-advised as a matter of public policy. The groups include the National Association of Criminal Defense Lawyers (NACDL), the New York State Association of Criminal Defense Lawyers, the New York State Defenders Association, the Electronic Frontier Foundation (EFF), the American-Arab Anti-Discrimination Committee, the Sikh American Legal Defense and Education Fund, the Council on American-Islamic Relations (CAIR), and the Union for Reform Judaism. They urge the court to condition GPS monitoring upon judicial issuance of a warrant.
The brief was written by Susan J. Walsh, a partner at Moskowitz, Book & Walsh, LLP in New York City, NACDL Executive Director Norman L. Reimer and NACDL Assistant Director of Public Affairs & Communications Ivan J. Dominguez.
“By its nature, GPS is a valuable tool because it permits long-term, sustained surveillance. But its potential for abuse is staggering. To allow this kind of personal data collection without judicial oversight is an Orwellian nightmare. The minimal time required to obtain a warrant based on probable cause restores balance and cannot credibly be said to impede legitimate law enforcement objectives,” explains lead counsel Susan J. Walsh.
A dissenting opinion in the case below rejected the analogy that the use of GPS is the functional equivalent of being followed by the police on public roads. Relying upon the search and seizure provisions of New York State’s Constitution, the dissent concluded that “while the citizens of this state may not have a reasonable expectation of privacy in a public place at any particular moment, they do have a reasonable expectation that their every move will not be continuously and indefinitely monitored by a technical device without their knowledge, except where a warrant has been issued based on probable cause.”
According to Norman Reimer, the Executive Director of NACDL, “Permitting unlimited, around-the-clock, uninterrupted 24/7 monitoring of an individual’s whereabouts is as much a First Amendment issue as it is a Fourth Amendment issue.” He points out that “the government can learn where a person worships, what clubs they attend, what political parties they participate in, where they sleep, and other personal and private information completely irrelevant to legitimate law enforcement needs.”
The brief is available on NACDL’s Web site at: http://www.nacdl.org/public.nsf/mediasources/GPSAmicusBrief/$FILE/gps.pdf
Contacts
NACDL Communications Department
The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.