The ability to know where someone or something is at all times has produced ambivalent feelings among users and requires a difficult balancing act for policy makers as technology races ahead of social norms and the legal system. On the one hand, GPS creates a multitude of powerful tools for efficiency, safety, convenience, and profit. On the other hand, people worry about the erosion of privacy and misuse of those tools. A person tracking his own movements calls it navigation. When someone else does so without his knowledge, he calls it spying. Those doing the latter type of cell phone tracking primarily call it one of two things—marketing or law enforcement.
GPS tracking devices became big business long before the technology proliferated in mobile phones. The military recognized the logistical advantages of GPS tracking from the outset. As mentioned in chapter 6, Persian Gulf War troops radioed their coordinates to each other both to rendezvous and to avoid fratricide. During the 1990s the military and the private sector began to use electronic tracking devices attached to vehicles for fleet management. By 2004 the Defense Department used GPS to track more than forty-seven thousand commercial-carrier shipments of arms, ammunition, and explosives transported each year across the United States.39 Today the Army is equipping individual frontline infantrymen with the General Dynamics Rifleman Radio.40 Described as a smartphone combined with a tactical radio, it uses GPS tracking to enable a platoon or squad leader to monitor his soldiers’ positions on a display attached to his radio.41
Municipal transit systems began installing automatic vehicle location (AVL) devices on buses in the early 1990s. Trimble Navigation introduced its Transit-Trak turnkey system on ten demonstration buses shuttling attendees to International Public Transit Expo ’90 in Houston.42 The next year Dallas Area Rapid Transit outfitted 1,600 buses with Washington-based Marcor’s Hummingbird trackers, numerically the largest nonmilitary GPS contract awarded to that point and estimated at more than $1 million.43 Qualcomm, the eventual world leader in AVL devices, had equipped more than a half-million vehicles owned by 1,500 trucking companies by 2004.44 By 2010 more than two-thirds of all commercial surface vehicle fleet operators in the United States were estimated to have adopted GPS tracking, yielding total economic benefits exceeding $10 billion annually through fuel, labor, and capital savings.45 AT&T used a phrase from a children’s fable to succinctly explain the benefits of fleet tracking in a 2012 commercial. Following an image of a convoy of seven trucks hauling construction equipment down a rural Texas highway, a worker attaches a magnetic GPS tracker to a truck, saying, “This is the bell on the cat. ”46 Similarly, 40 percent of rail systems and 75 percent of ferryboat operators had adopted GPS by the end of the decade.47
As with other information technology products, prices have dropped along with size and weight, making GPS tracking increasingly affordable and practical not only for smaller fleets but also for valuable assets, for pets, and for people. Trackers weighing less than an ounce and about the size of remote-entry key fobs for automobiles have become loss-prevention tools for items ranging from flat-panel televisions to bank bags. Cambridge, Massachusetts, police caught a bank robber eight minutes after the crime by tracking him to the public bus he was riding. In his pocket they found the stolen $3,600 and a GPS tracker the teller had hidden in the bundles.48 A Wellington, Florida, community center, fed up with thieves stealing figurines from a nativity scene, attached a GPS tracker to baby Jesus. When it disappeared, police followed the signal and made an arrest.49 Qualcomm subsidiary Snaptracs offers Tagg, a lightweight, battery-operated tracker that attaches to a pet’s collar and sells for $99.95 plus a $7.95 monthly service fee.50 When pets move beyond a zone or “geo-fence ” defined by the owner, Tagg sends a text message or e-mail alert.
People-tracking equipment revenues increased 352 percent between 2005 and 2010, and the personal tracking industry, now growing 40 percent or more annually, will reach $1 billion by 2017, according to ABI Research.51 Such growth is attracting large companies that already compete in commercial tracking as well as new entrants filling market niches. Various tracking systems now cater to those responsible for infants, children, and people with special needs such as autism or dementia. The Alzheimer’s Association collaborated with Omni-link Systems of Alpharetta, Georgia, to create Comfort Zone, a web-based service that families or caregivers can use to monitor Alzheimer’s patients.52 Omnilink, which got its start tracking criminal offenders and now offers numerous commercial solutions, formed a similar partnership with the AmberWatch Foundation, employing the same technology to monitor children.53 GTX, of Los Angeles, California, collaborated with Teaneck, New Jersey, footwear maker Aetrex Worldwide to embed a tracker in the heel of the Navistar GPS shoe, available for men or women. Each pair costs about $300 plus monthly connection fees, and the company offers a tracking portal on its website.54 Alzheimer’s patients may forget or remove a separate device, but putting on shoes is an aspect of memory most patients retain, say experts.55 The National Museum of Science and Technology in Stockholm, Sweden, selected the GPS shoe to illustrate the spread of GPS into daily life, including clothing, in an exhibit of “the one hundred most important inventions in history, as rated by the Swedish people. ”56 GPS ranked twenty-first at this writing, while computers held first place.
A Swedish company, Purple Scout, makes a bright-yellow safety vest called ChildChecker with built-in GPS tracking that daycare centers there have adopted for outdoor activities and field trips.57 It reports each child’s location to the teacher’s smartphone. Administrators and daycare workers praise the device, although some critics wonder about the long-term effects of constant surveillance on children’s sense of privacy.58 The wristwatch phone envisioned in the Dick Tracy comic strip is now available (minus two-way TV) via New York City–based Revolutionary Tracker, which offers its GPS Watch Locator, a multipurpose watch, tracker, and communications device featuring two-way voice and text as well as a listen-in mode. Brightly colored wrist straps increase the appeal for children, or parents can hide the electronic component alone in an infant’s clothing or blankets.59 Amber Alert GPS, located in South Jordan, Utah, offers a personal locator for children with an automatic predator alert that informs parents if their child is within five hundred feet of the registered address of any sex offender listed in the U.S. Justice Department’s national database.60
The criminal justice system uses GPS technology extensively to track probationers, parolees, pretrial defendants, and people awaiting deportation hearings. Radio frequency ankle bracelets emerged in the late 1970s as a tool to enforce house arrests. Their use expanded when GPS made it possible to track the wearer continuously rather than simply sound an alert when he or she left the house. Supervising officers can monitor travel to work or drug treatment while getting an immediate notification if the offender enters an excluded zone, such as a schoolyard or the neighborhood of a person with a restraining order.61 The ankle bracelet reached its greatest national prominence, perhaps, in 2005, when the courts sentenced television celebrity Martha Stewart to house arrest on her 150-acre estate.62 They are not foolproof. The Guardian (London) reported in 2011 that a suspect in Rochdale, England, tricked two security guards into attaching a tracking device to his prosthetic leg, which he later removed to violate curfew.63 When a major electronic monitoring vendor’s computer system shut down for twelve hours in 2010, corrections officials in forty-nine states could not follow the movements of sixteen thousand offenders they were tracking, although the offenders were unaware of the lapse.64 Complaints that correctional systems, in the United States and abroad, rely too heavily on the technology arise whenever offenders commit crimes while under electronic surveillance.65 A Baltimore woman sued a GPS tracking vendor, Nebraska-based iSecureTrac, in mid-2012 after her five-year-old daughter suffered permanent brain damage from a stray bullet fired by a juvenile offender the company was monitoring.66 The case is pending. Police rearrested a Massachusetts defendant awaiting trial in early 2012 after a tracking system showed he v
iolated house arrest, but his lawyer successfully argued the readings were false.67 His expert witness, a civil engineer with extensive GPS experience, testified that the home’s construction and the weakness of satellite signals indoors could have affected tracking results.68
A 2012 U.S. Justice Department–sponsored study of more than six thousand California sex offenders showed that real-time GPS tracking was 30 percent more expensive than traditional supervision but significantly more effective. GPS monitoring cost about $36 per day per parolee, compared to $27.50 per day for traditional supervision, but traditionally monitored parolees were three times more likely to commit a sex-related violation.69 Incarceration in California at the time of the study cost about $129 per day.70
The American Correctional Association reported that 22,192 people wore electronic monitoring devices in 1999.71 Today about one in forty-five adults in the United States, more than 4.88 million, is under criminal justice supervision outside a correctional facility.72 The number of people who wear or carry some type of court-ordered electronic monitor grew fivefold, to one hundred thousand, between 1999 and 2006 and by the end of the decade reached an estimated two hundred thousand.73 The trend has fueled substantial growth among early players in electronic offender monitoring, attracting multinational public corporations to the business. Colorado-based BI (founded in 1978 as Behavior Interventions), with about a third of the U.S. market, tracks more than sixty thousand offenders through contracts with about nine hundred federal, state, and local agencies in all fifty states.74 The GEO Group, a $1.6 billion global provider of correctional, detention, and treatment services to all levels of government, acquired BI in 2011 for $415 million.75 Former U.S. drug czar and Florida governor Bob Martinez cofounded Pro Tech Monitoring in Tampa in 1996.76 An Israeli company, Dmatek Group, which already owned U.S. monitoring subsidiary Elmo-Tech, bought Pro Tech Monitoring in 2007 for $12.5 million.77 Dmatek rebranded itself as Attenti in 2010, and then 3M, a diversified worldwide conglomerate with $29.6 billion in sales, acquired Attenti in 2011 for about $230 million.78 In 2011 the top three offender tracking companies posted combined sales exceeding $61 million. BI posted sales of $26.8 million, and Attenti finished the year with $16.4 million.79 Relative newcomer SecureAlert, a Utah company founded in 2006, recorded $17.96 million in sales.80 At least a half-dozen other vendors compete for a share of the market.
Privacy versus Secrecy
As tracking proved useful for those already in the justice system, police stepped up GPS use in criminal investigations. Vehicles impounded after an arrest often have a navigation system from which forensic investigators can tease a stored digital “breadcrumb ” trail of its movements.81 Before an arrest, detectives could attach magnetic trackers to vehicles without alerting a suspect or seeking a judge’s permission, and the technology gave police forces, particularly smaller ones with fewer resources, an affordable tool to track suspects, generate evidence, and close cases. For example, police in Fairfax County and Alexandria, Virginia, halted a series of a dozen assaults on women in 2008 after placing a GPS tracker on a van belonging to a suspect living near the crime scenes—a convicted rapist who had served seventeen years in prison. They later caught him dragging a woman from the van into some woods and made an arrest, after which the assaults ended.82 Civil libertarians and defense lawyers argued that using such tactics without a search warrant are illegal searches and seizures. As cases and appeals involving GPS tracking moved through the judicial system, local courts often sided with police, but state and federal courts differed on the need for a warrant.83
In 2011 the first test case involving warrantless GPS tracking, United States v. Jones, reached the Supreme Court.84 FBI agents and metro police had placed a GPS tracker on Washington DC nightclub owner Antoine Jones’s Jeep Cherokee and recorded his movements for twenty-eight days while gathering evidence to convict him in a drug-trafficking investigation. During the trial, a government lawyer characterized federal investigations that use GPS tracking as numbering “in the low thousands annually. ”85 The aggregate number of investigations involving GPS among all levels of law enforcement across the nation prior to the ruling is unknown, but the decision effectively ended police use of GPS vehicle tracking without a warrant. On January 23, 2012, the justices unanimously ruled that police in the case had violated the Constitution. Justice Antonin Scalia, delivering the main opinion of the court, observed, “We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted. ”86 However, the justices split over the rationale for the ruling. Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas, and Sonia Sotomayor agreed with Scalia that the case centered on the physical intrusion created by placing the device on the vehicle. Justice Samuel A. Alito Jr. observed that modern technologies no longer require the traditional “physical trespass ” the authors of the Fourth Amendment had in mind. He contended that the issue at stake was the defendant’s “reasonable expectation of privacy ,” a more recent but well-established interpretation of the Fourth Amendment growing out of wiretapping and eavesdropping cases. Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Elena Kagan joined Alito in this view.
Justice Sotomayor, in a concurring opinion, made clear that she agreed with Alito’s reasoning, although she was content to dispose of United States v. Jones on the narrower grounds Scalia proposed. She suggested that given the volumes of information people share today with retailers, phone companies, and other businesses, protecting societal expectations of privacy would be possible “only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. ” Police have not traditionally needed a warrant to obtain information voluntarily shared with third parties.
While the case clarified police use of GPS tracking, the law remains unsettled regarding private uses. State laws vary widely. A Minnesota court in 2011 acquitted a man charged with illegally monitoring his estranged wife with a GPS tracker because he was co-owner of the car.87 Texas and California prohibit most GPS tracking without consent, but a New York court upheld tracking a government employee in his private vehicle after he had been caught falsifying his time sheets.88 Cases of this type seem sure to reach the Supreme Court eventually.
Even before the Jones case reached the high court, lawmakers heard growing calls for clarity about how companies and law enforcement agencies can use geolocation data generated by navigation and location-based services in vehicles and smartphones. A media hullabaloo erupted in April 2011 after two researchers announced at Where 2.0, a conference on “the business of location ,” their discovery that Apple’s iPhones and iPads store users’ time-stamped location histories in “hidden ” files.89 Apple quickly responded that it does not track iPhone users and explained the files as a “cache ” of recent Wi-Fi hot spots and cell tower locations used to speed connectivity, like the temporary Internet files stored in personal computers.90 Apple characterized the year’s worth of location data stored on each phone as a “bug ” and promised to fix it with a software update that would limit storage to seven days. The company also acknowledged that it was collecting anonymous traffic data to build a crowd-sourced traffic service like that operated by Google Maps for Android phones, which also cache Wi-Fi and cell tower data. The public uproar prompted a hearing by the Senate Judiciary Subcommittee on Privacy, Technology, and the Law.
By the end of May 2011 House or Senate members had introduced at least ten legislative proposals aimed at various aspects of consumer privacy and data security.91 A lack of cosponsors and little or no bipartisan support hampered many of them. The leaders of the Bipartisan Congressional Privacy Caucus, Rep. Edward Markey, a Massachusetts Democrat, and Rep. Joe Barton, a Texas Republican, secured more than forty cosponsors, including a half-dozen Republicans, for the Do Not Track Kids Act of 2011, H.R. 1895.92 It sought to update the Children’s Online Privacy Act of 1998 by prohibiting companies from using or pr
oviding personal information to third parties about individuals younger than eighteen.93 Momentum appeared to increase when Rep. Jason Chaffetz, a Utah Republican, and Sen. Ron Wyden, an Oregon Democrat, in June 2011 coauthored the bipartisan and bicameral Geolocational Privacy and Surveillance (GPS) Act, H.R. 2168 and S. 1212.94 The House bill attracted twenty-five cosponsors, mostly Democrats and some Republicans, but its companion in the Senate gained only one cosponsor, a Republican.95 Sen. Al Franken, a Minnesota Democrat, simultaneously introduced the Location Privacy Act of 2011, S. 1223, which garnered six cosponsors, five Democrats and one Independent.96 It was narrower in scope, focusing on commercial service providers, but industry officials in telecommunications, advertising, and marketing cast a wary eye on all such bills.97 More than a year later, none had emerged from their committees for a vote. Just before the Senate recessed in August 2012, Wyden filed amendments to attach the bipartisan GPS Act to the Cyber-security Act of 2012, S. 3414, comprehensive legislation aimed at protecting the nation’s critical information infrastructure.98 The Senate ultimately failed to invoke cloture on S. 3414, and the 112th Congress recessed August 3.99 Clarity on GPS issues would have to wait as Congress faced partisan gridlock, a presidential contest, and uncertain prospects for a lame-duck session filled with even more pressing budget and tax issues.
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