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Re: Court Orders Gov't To Disclose GPS Tracking Data

From: Rigo Wenning <rigo@w3.org>
Date: Thu, 08 Sep 2011 20:25:07 +0200
To: Richard Barnes <richard.barnes@gmail.com>
Cc: Karl Dubost <karld@opera.com>, David Singer <singer@apple.com>, "public-privacy (W3C mailing list)" <public-privacy@w3.org>
Message-ID: <1315506307.16797.20.camel@localhost>
Very nice logic. With this logic, one could track all mobile phone
position data without warrant, because walking in the public you don't
have a reasonable expectation of privacy. 

From the continental perspective, being able to attach a GPS tracking
device without _probable cause_ and without warrant just sounds crazy.
But I assume this is mitigated by practical considerations. They simply
do not extrapolate but are considering the current practice with its
limited surveillance capabilities.

This explains the move of the ACLU to try to demonstrate that the
current practice is already banalized. 

This means I wonder what argumentation one could possibly have to not do
exactly the same monitoring the mobile phone with an IMSI catcher and
just top monitoring if someone enters his home or a private building.
(GSM could determine that pretty precisely. A mobile operator offered
home fixed net conditions for phone calls made with the mobile inside
your appartment)

If you compare to german law, the requirements for such GPS surveillance
are equivalent to those of eavesdropping a home. That means even a
normal warrant is not sufficient. There has to be a suspicion of very
specific severe crime. The options are enumerated in the law. 

So there is a stark cultural contrast here.



On Thu, 2011-09-08 at 12:57 -0400, Richard Barnes wrote: 
> IANAL(IJLW1)*, but I believe that current case law in the US says that
> law enforcement may attach a tracking device to a target's vehicle and
> collect coordinates without having a court order.  As I understand it
> the logic is much the same as what you're saying: When the person is
> out driving their car, they do not have an expectation of privacy.  In
> order for data collection to technically be a "search" (and thus
> require a warrant), there must be some expectation of privacy in the
> data being collected.
> <http://www.harvardlawreview.org/issues/120/june07/recentcases/united_states_v_garcia.pdf>
> This logic has been applied in some other technical domains with the
> opposite decision, e.g., infrared imaging of houses:
> <http://en.wikipedia.org/wiki/Kyllo_v._United_States>
> It seems like a distinction arises here between an expectation of
> privacy in a single observation (or a few observations) and an
> expectation of privacy from sustained collection.  Someone can watch
> me walk down the street, but if they follow me for days, things like
> stalker laws start to apply.  I'm not sure whether this line of
> argument has come up in legal circles, but it seems to at least be
> sort of on the horizon with respect to infrared imaging:
> <http://volokh.com/2011/04/11/city-wide-infrared-imaging-project-to-show-heat-loss-of-homes/>
> --Richard
> * I Am Not A Lawyer (I Just Live With One)
> On Thu, Sep 8, 2011 at 12:30 PM, Karl Dubost <karld@opera.com> wrote:
> >
> > Le 8 sept. 2011 à 16:38, David Singer a écrit :
> >> A.  We can place gps devices on people's cars and track them without a warrant because their cars are in public places and they have no expectation of privacy.
> >> B.  We cannot release the records because that would violate their privacy.
> >
> >
> > I wonder what is the law in different countries for stalking. You could follow someone, write down all venues this person is going to, even track yourself following the person.
> >
> > Is the issue about tracking (collecting the data) or sharing them?
> >
> >
> > --
> > Karl Dubost - http://dev.opera.com/
> > Developer Relations & Tools, Opera Software
> >
> >
> >
Received on Thursday, 8 September 2011 18:25:39 UTC

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