PI Newswire

In a rare defeat for law enforcement, the Supreme Court unanimously agreed on Monday to bar police from installing GPS technology to track suspects without first getting a judge’s approval. The justices made clear it wouldn’t be their final word on increasingly advanced high-tech surveillance of Americans.

Indicating they will be monitoring the growing use of such technology, five justices said they could see constitutional and privacy problems with police using many kinds of electronic surveillance for long-term tracking of citizens’ movements without warrants.

While the justices differed on legal rationales, their unanimous outcome was an unusual setback for government and police agencies grown accustomed to being given leeway in investigations in post-Sept. 11 America, including by the Supreme Court. The views of at least the five justices raised the possibility of new hurdles down the road for police who want to use high-tech surveillance of suspects, including various types of GPS technology.

“The Supreme Court’s decision is an important one because it sends a message that technological advances cannot outpace the American Constitution,” said Donald Tibbs, a professor at the Earle Mack School of Law at Drexel University. “The people will retain certain rights even when technology changes how the police are able to conduct their investigations.”

A GPS device installed by police on Washington, D.C., nightclub owner Antoine Jones’ Jeep and tracked for four weeks helped link him to a suburban house used to stash money and drugs. He was sentenced to life in prison before an appeals court overturned his conviction.

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A year and a half ago, a Silicon Valley community college student wound up in the cross hairs of a shadowy but common law enforcement practice now at the center of an unfolding legal drama in the U.S. Supreme Court.

On his way to school, Yasir Afifi, an Arab-American, stopped for an oil change and later discovered that the GPS tracking device he found on the underbelly of his car had been put there by the FBI without a warrant.

Now the Supreme Court is expected to decide any day whether the government has a right to use that tactic without a search warrant in a case that highlights the tensions between law enforcement needs and the privacy implications of new technologies that can track our every move.

In a Washington, D.C., case, the Supreme Court is considering whether warrantless GPS tracking violates the Fourth Amendment’s ban on unreasonable search and seizure, one of the core rules in any criminal case. The scope of the court’s ruling could have far-reaching implications when everything from smart phones to dashboard gadgets offer authorities a generous menu for tracking suspects.

The Obama administration and law enforcement groups say GPS tracking is no different from ordinary police surveillance on public streets. There is no constitutional barrier to GPS tracking in public places, they argue.

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Earlier this week we discussed the case of a St. Louis City Treasurer’s Office employee who is accused of timesheet fraud. Federal investigators followed the man around after hearing reports that he was collecting a salary despite not doing any work. After the investigation the man was charged with wire fraud and federal program theft. The main question that remains is whether the evidence against the employee was obtained illegally.

The government is not allowed to use evidence against a person that is the result of an unreasonable search and seizure. It is unclear whether the FBI’s decision to clip a GPS tracking device to the man’s car constituted an illegal search and the issue is currently before the Supreme Court.

FBI agents tracked the man’s car movements and compared the movements with his timesheets. Although the admissibility of the GPS tracking information is unclear, challenging the validity of a search is one of first things that an experienced criminal defense attorney will consider when devising a comprehensive defense strategy against federal charges. The inadmissibility of key evidence may destroy the government’s case and result in the dismissal of charges against a defendant.

It is unclear what the government’s case against the man will consist of if the GPS evidence is deemed inadmissible. There is also a separate issue of whether the man’s job was necessary in the first place. It appears that the treasurer’s office outsourced many of the functions of the man’s job. The Post Dispatch also reported that the man has not been suspended despite the federal charges against him.

The man is also accused of embezzling $250,000 in public funds from the Paideia Academy charter school which he used to run.

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That company-issued cellphone, laptop or tablet could be keeping tabs on you away from the office.

More employers nationally are adopting technology to monitor their employees’ productivity, efficiency and even whereabouts, with the scrutiny going beyond merely placing GPS units in company vehicles.

“Too much snooping is going on,” said George Barrett, a civil rights attorney in Nashville. “Big Brother has arrived.”

Some states have passed laws requiring employers to notify employees of surveillance, but Tennessee is not among them, said Elizabeth A. Alexander, a partner in Lieff Cabraser Heimann and Bernstein’s local office.

“The law hasn’t been fully developed on the issue of how far employers can go,” she said.

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“It can check text, GPS locations, track all of your contacts, it’s kind of crazy!” said Shawn “Doc Rock” Boyd, as he talked about the latest spyware for smart phones. Social media is Boyd’s world. He’s a team member on social media site Non-Stop Honolulu, he’s a radio personality, and he even has his own website. “I am a person who lives on line, because I have nothing to hide,” said Boyd. The problem is, a lot of other people do, and the companies making billions off location trackers, secret apps, hidden software and more are betting they’ll keep hiding no matter what the price.

“They’re playing on a lot of fear,” said Boyd. By 2011, Google and Apple had sold over 15 billion apps, earning more than 5 billion in sales, and those secret or spy apps are now everywhere. “They will will allow you to remote check everything on the phone,” said Boyd. He showed KITV4′s Lara Yamada a handful of the more popular apps, such as FlexiSpy, iPhone Mobile Spy or Tiger Text which destroys messages right after it’s sent. There are also hundreds of apps similar to one called “My Secret Folder” which includes decoy codes, camouflage folders, and hidden pics and videos. It costs 99 cents. “It creates obsessions,” said relationship counselor Renee Rokero. She sees the aftermath and the emotional damage from living a lie. In a recent national survey 70 percent of married women and 54 percent of married men did not know their spouses were cheating. In addition, the American Academy of Matrimonial Lawyers found one in five divorces now involve Facebook. And, a staggering 80 percent of divorce lawyers pull evidence of cheating from social media. “It’s has gotten out of hand. All the technology is a lot of distraction when were unhappy in a relationship,” she said. “I’ve warned the people, there’s a trust factor involved, but you may technically be committing a crime,” said Internet Crimes Investigator and Former HPD detective Chris Duque. He said he’s seen that mistrust lead to break-ups and illegal behavior. “People have an assumption that they have a right to do all these things, because they are in a relationship,” but he says taking information from a smartphone without permission, for example, is a Class C Felony and possible jail time. “We get consumed,” said Rokero. “You can’t blame in entirely on the device. It’s the human being that’s operating it.” She says couples need to remember try new things together, and find that balance between real life and life online. “If the two people could sit down and talk about their emotions and feelings and come up with some rules and agreements,” she said. “That’s dirty!” said Boyd, as he looked at a new spy app that remotely activates a phone’s speaker. “I tell people as long as your leaving a pretty honest life, you’re OK, you’ve got nothing to worry about.

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At first glance, technology is making all our lives simpler. Dig a little deeper, and complications erupt. Constant communication brings unwanted stress. Some education experts deem excessive computer use by students addictive and damaging. And in the world of public safety, the idea of Big Brother is more than a literary reference.

The Supreme Court of the United States already has heard evidence on the use by police of global positioning system devices, but no decision has been made. As it stands, police can secretly attach such a device on a suspect’s vehicle, then sit back and track its every move. It has been effective, no doubt, but it should require more oversight.

Local police agencies want us to believe they only use the tactic in certain circumstances and only with probably cause that crime has been, or will be committed. It is not a case of them simply tossing a tracking device on a car on a whim. That should make us all feel better, but it doesn’t.

We don’t argue that the GPS tactic gives police a leg up on tricky investigations, but then so do phone taps. Remember those? When landline telephone communications were the most technologically advanced and convenient forms of real-time conver-sations? The Supreme Court ruled in 1967 that such “electronic eavesdropping without procedural safeguards” was illegal under the Fourth Amendment.

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The public should be informed when a building or facility operator uses systems to track the location and movements of mobile phones, a data privacy expert has said.

Phone-tracking systems are used in some shopping centres and in other environments such as at stadium concerts and in refugee camps. The system helps to build up a picture about the mass movement of people, the chief executive of a company that operates such technology told Out-Law.com.

Data protection law only applies to information that qualifies as ‘personal data’. The information these systems gather is unlikely to qualify as personal data when read on its own but could identify individuals when combined with information from other sources, according to Kathryn Wynn, an expert in data privacy at Pinsent Masons, the law firm behind Out-Law.com.

This means that operators should inform mobile users when the technology is in use, she said, because some of the information gathered could later become personal data, depending on the processing of it.

“If the company is just tracking customers’ movements on a single visit to a shopping centre and is not able to collect shopping habit information about individuals on a long term basis it would appear that the information collected is more like geolocation data rather than technology which is akin to a [website] cookie,” Wynn said.

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I first met Roger Thompson over five years ago in connection with a review of Exploit Prevention Lab’s LinkScanner Pro, a browser protection toolbar that identified malicious Web pages using real-time analysis. When AVG bought LinkScanner and incorporated it into AVG Anti-Virus Free 2012 and other products, Thompson came along for the ride. Most recently he has joined ICSA Labs in the newly-created position of Chief Emerging Threat Researcher. For his first post on the ICSA blog, Thompson reviewed the history of malware and speculated on coming threats.

Thompson’s post tracks the evolution of malware starting with viruses aimed at MS-DOS. He notes that the arrival of the first protected-mode operating system, Windows 95, was an “extinction-level event” for early virus types. Windows XP Service Pack 2 created another such event by turning the built-in firewall on by default. However, as Internet use became ubiquitous, the browser provided “a trusted tunnel right through the firewall.” Criminals seeking to make money from malware keep the fight going.

The Privacy Revolution
Next Thompson turns from evolution to revolution. Historically the Agricultural Revolution and Industrial Revolution had enormous effect on society, as did the ongoing Computer Revolution. Thompson sees the World Wide Web as revolution number four, followed by the Privacy Revolution as “the fifth, and the most dangerous.”

The post quotes Google’s Eric Schmidt as remarking that “Between the birth of the world and 2003, there were five exabytes of information created. We [now] create five exabytes every two days.” There’s nothing wrong with Google collecting that data, but much of it is information that in the past would have been totally private. And way too many of the 800,000,000 users of Facebook give apps permission to access their data without really knowing who’s behind those apps.

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Mayor Rick Hoffman’s plan to use Global Positioning System technology to track the whereabouts of police cruisers is endorsed by other communities already using it.

State police and departments in cities like Allentown and Bethlehem, as well as some smaller suburban communities have been using the technology for years as a safety measure for officers and a way to speed up response times to emergencies and crimes in progress.

It’s also used to determine whether some neighborhoods are getting more police attention than others and to verify whether a police force responded to a call for assistance.

“I know that it certainly has served as a benefit,” said Joe Hanna, Allentown’s assistant police chief. “Any type of technology that is going to enhance officers’ safety is most certainly an asset for us. It has served the citizens well insofar as being able to expedite calls and respond quicker.”

Bethlehem and Allentown use trackers tied into their computer-aided dispatch systems as a tool to determine which police vehicle is closest to an emergency, accident or incident. They also use their Automated Vehicle Locater during cases in which a communications center operator or police department staffer is unable to contact an officer.

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In November 2011, the Supreme Court began hearing arguments in US v Jones, a case The New York Times recently dubbed “the most important Fourth Amendment case in a decade.”

The Jones case will set the precedent for the legality and limitations of GPS tracking without a warrant. The Supreme Courts will address a question that has divided the lower courts for years: Do the police need a warrant to attach a GPS device to a suspect’s car and track its movements for weeks at a time?

The NY Times said, “the answer will bring Fourth Amendment law into the digital age, addressing how its 18th-century prohibition of “unreasonable searches and seizures” applies to a world in which people’s movements are continuously recorded by devices in their cars, pockets and purses, by toll plazas and by transit systems.

In the US v. Jones case, law enforcement agents installed a GPS tracking device on an automobile that was parked on private property. They then used the GPS to track the position of the vehicle every ten seconds for a full month – without obtaining a search warrant.

A US Court of Appeals has already ruled that the surveillance was unconstitutional without a warrant, but the the Obama Administration has appealed the decision. The government has made it clear they believe GPS tracking devices may be affixed to suspects’ vehicles sans a warrant. They do not consider this to be an invasion of privacy or a violation of one’s 4th Amendment Rights.

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A Missouri federal judge ruled the FBI did not need a warrant to secretly attach a GPS monitoring device to a suspect’s car to track his public movements for two months.

The ruling, upholding federal theft and other charges, is one in a string of decisions nationwide supporting warrantless GPS surveillance. Last week’s decision comes as the Supreme Court is expected to rule on the issue within months in an unrelated case.

The ruling from Magistrate David Noce mirrored the Obama administration position before the Supreme Court during oral arguments on the topic in November. In short, defendant Fred Robinson, who was suspected of fudging his time sheets for his treasurer’s office job for the city of St. Louis, had no reasonable expectation of privacy in his public movements, Magistrate Noce said.

Noce ruled: (.pdf)

“Here, installation of the GPS tracker device onto defendant Robinson’s Cavalier was not a ’search’ because defendant Robinson did not have a reasonable expectation of privacy in the exterior of his Cavalier. Agents installed the GPS tracker device onto defendant’s Cavalier based on a reasonable suspicion that he was being illegally paid as a ‘ghost’ employee on the payroll of the St. Louis City Treasurer’s Office.

Installation of the GPS tracker device was non-invasive; a magnetic component of the GPS tracker device allowed it to be affixed to the exterior of the Cavalier without the use of screws and without causing any damage to the exterior of the Cavalier. The GPS tracker device was installed when the Cavalier was on a public street near defendant’s residence. Installation of the GPS tracker device revealed no information to the agents other than the public location of the vehicle. Under these circumstances, installation of the GPS tracker device was not a search within the meaning of the Fourth Amendment.”

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“You could now listen in 100% completely undetected” — that’s the promise one company makes on its website to anyone who wants to eavesdrop on someone else’s cellphone.

Spy technology is now available to the average person who wants to glean cellphone information, read private emails, and track someone’s location using global positioning systems. And increasingly, experts say, the technologies are being used by spouses and partners to track, harass and stalk. “Technology has just exploded. It’s so sophisticated now and it’s very easy to utilize these different technologies to keep tabs on a person and find out where they’re going,” said Gina Pfund, chief assistant prosecutor of the Domestic Violence Unit in Passaic County.

The person watching or listening is often a family member and frequently a suspicious or controlling partner. They have scanned Facebook pages, viewed online web-browsing histories, and exam­ined cellphone records for proof. But some take it a step further, planting spyware on smart phones and computers.

Easy-to-use spyware is heavily marketed online to find out if a spouse is cheating. It can be in­stalled on computers to monitor keystrokes, emails and passwords and to take screen snapshots.

And within minutes, software can be loaded on a smart phone to allow a third party to monitor calls, view text messages and photos, and track a person’s location and movement via GPS. The built­in microphone can also be activated remotely to use as a listening device, even when a phone is turned off. And the phone user will have no idea that he or she is being spied on, say technology experts.

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