You're Going to Need a Warrant For That, Officer
Last year Yasir Afifi, a 20-year-old U.S.-born citizen, found a strange device attached to his car. When he posted a photo of it online, the FBI showed up at his home two days later. They wanted their GPS tracking device back. The FBI had been tracking Afifi's movement for months without his knowing about it. Moreover, the agency did so without a warrant and apparently based on the flimsy rationale that his friend wrote a blog they felt was questionable. This type of warrantless tracking seems to be an increasingly common government practice.
Following this incident, as well as revelations about how much location information Apple and Google are storing about their customers, there has been a significant public outcry over the privacy of location information. Congress has held a number of hearings on the topic and today Sen. Ron Wyden (D-Ore.) and Rep. Jason Chaffetz (R-Utah) introduced companion bills in the Senate and House, respectively, to protect location privacy. The bills not only require law enforcement to get a warrant based on probable cause before accessing location information, but also regulate the use of this information by businesses.
Disclosing location information can be particularly harmful to victims of stalking and domestic violence . It can reveal individual movements for months or years, including things like medical information (visits to a therapist or an abortion clinic), First Amendment-protected activity (attendance at a church or political protest), or personal habits (visits to a gun range or bar). It can also be just plain embarrassing – maybe you were at a bar when you said you were at church. Requiring a warrant will not deny the police information they need, it just mandates judicial review to ensure that authorities have a good reason to access such sensitive information.
This is already the law in Oregon, where the state's Supreme Court held that tracking is the equivalent of a search as defined by the state constitution and therefore requires a warrant. The court said GPS tracking was a violation of an individual's right to privacy and, unlike simply viewing a vehicle tracking device, it significantly limits freedom from scrutiny.
As technology has advanced, law enforcement has been quick to adopt new surveillance tools, but our privacy laws have not kept pace . We applaud Sen. Wyden and Rep. Chaffetz for bills that work towards bringing them in line. Please go here to ask your Members of Congress to co-sponsor this important piece of legislation.
Sandra Fulton is a Legislative Assistant with the ACLU Washington Legislative Office.