The View from the Right
By Gregory Conterio
The school year is winding-down, and parents or not, the minds of many of us are beginning to turn to the summer. But that does not mean legislatures have been idle! Bills of greater and lesser import continue to be introduced at the state and federal level. Some are meaningless and self-serving, such as Indiana SCR0030, a resolution congratulating Cathedral High School for winning the “We the People” state competition, or California’s AR5, commemorating Rosa Parks’ 100th birthday. Others may have little or no impact upon our lives, but reflect trends in public policy which I believe are worth discussing. Such a bill is Virginia HB1981 – which deals with installing electronic tracking devices without consent.
HB1981 was introduced and passed this year, being signed by Governor McDonnell in March. On the whole, it is a very uncontroversial bill, essentially making it a Class 3 misdemeanor to place an electronic tracking device onto another person’s vehicle “through intentionally deceptive means and without consent.” This means offenders will face a penalty of up to 30 days in jail, and a fine of up to $500. There are exceptions for fleet vehicles, parents and guardians, private investigators, and of course, law enforcement. In other words, average citizens like me can’t secretly put a tracking device on our neighbor’s car to see where he’s going. It all sounds perfectly reasonable. My big question is, what’s the point?
If this law seeks to protect people like you and I from having our vehicles tracked, it protects us only from the least likely people to ever want to track us, and not very well at that. Private investigators (and thus, by extension, jealous spouses), your boss (if you drive a company car) and the police can all still legally keep tabs on your comings and goings without telling you about it. The only people who can’t are other average citizens. “But Greg, this law protects you from criminals!” Does it really? If someone is really determined to track my movement because they wish to do me or my family harm, or because they want to know when I’m away from home so they can rob the place, does anyone really believe they are going to be deterred by a misdemeanor charge? For that matter, if someone is really determined to know where you’re going, they can simply follow you. If I were to become suspicious of my neighbor, and decide to follow him and see what he’s up to, doing so carefully so he doesn’t discover me, let’s say I track him to a convenience store which he then proceeds to rob. I then call the police, who by a wild stroke of luck happen to have a car close by, and they catch him in the act. But under HB1981, if I have those same suspicions, and decide to place a GPS tracking device on his care, then let the police know that he was at the convenience store at the exact time it was being robbed, I am the one who gets arrested and punished. Same scenario, same information relayed to the police, same criminal act by my neighbor, but because I violated the law, he goes free. So if HB1981 doesn’t really protect me from criminals, and doesn’t prevent anyone else on the exception list from tracking my car without my knowledge, I ask again, what’s the point?
Laws like HB1981 arise from concerns over privacy, which is not necessarily a bad thing, but as with so many legislative attempts, I think it misses the mark. The average person is unlikely to violate my privacy by trying to track my car, and the determined criminal is going to do it anyway despite the law, one is not a likely threat, and the other will remain a threat despite the law, but there is a class of people who do have an interest in tracking citizens that are exempted by HB1981: law enforcement. The very first exception listed in this bill reads:
The provisions of this section shall not apply to the installation, placement, or use of an electronic tracking device by:
A law-enforcement officer, judicial officer, probation or parole officer, or employee of the Department of Corrections when any such person is engaged in the lawful performance of official duties and in accordance with other state or federal law;
So under HB1981, as long as law enforcement is working under their normal rules and procedures, they can track your vehicle. The big question is, what are those rules and procedures, and are they reasonable? Interestingly enough, the U.S. Supreme Court recently dealt with just such a case in United States vs. Jones, decided just last year. In U.S. vs. Jones, the Supremes ruled that placing the tracking device on the vehicle of one Antoine Jones, and subsequently monitoring his movement for 28 days constituted a search under the 4th Amendment, but unfortunately they punted on the larger question of its potential privacy violation, although the import of this question was not lost upon Justice Breyer, who remarked during arguments:
“If you [Attorney for the government] win this case, there is nothing to prevent you from monitoring 24 hours a day the public movements of every citizen in the United States.”
Even more interestingly, the court decided Jones’ conviction would not stand, because the police trespassed onto his property in order to place the tracking device. So no help there. And suppose Jones’ conviction had hinged upon additional evidence judged critical to the case, but only tangentially related to the GPS monitoring of his vehicle? Virginia had such a case in Foltz vs. Commonwealth of Virginia. This was a particularly interesting matter in which police used GPS monitoring essentially to confirm their suspicions that Foltz was a person of interest in a series of sexual assault cases, and eventually caught him in the act and arrested him. Foltz appealed his conviction on 4th Amendment grounds, but the conviction was upheld, and the appellate court also held that the employment of GPS monitoring without a warrant. By the time Foltz reached Virginia’s Supreme Court, the Jones ruling by the SCOTUS had been made, but Foltz’s conviction was upheld nevertheless, largely due to the preponderance of evidence considered not to be directly the product of GPS surveillance.
So as best I can tell, we still have a great deal of uncertainty about law enforcement’s permissible employment of GPS tracking technology. GPS monitoring is essentially a form of surveillance, which does not require a warrant when performed by police. At the same time, the Supreme Court has held that placing a GPS tracking device on a vehicle and then monitoring its movement constitutes a “search,” at least when it’s done on the suspect’s property, and constitutes trespass if not validated by an accompanying warrant. And just as not all searches by police require a warrant, might there not be circumstances under which law enforcement use of GPS monitoring is held not to require one either? The Probable Cause threshold of the 4th Amendment has roughly 200 years of case law defining its application—how does it apply to an emerging technology which combines some elements of surveillance, and some of a search? Privacy advocates were hoping for more clarity in U.S. vs. Jones, but the court elected to leave the question unresolved for now.
While I don’t have a particular objection to Virginia HB1981, I don’t believe it accomplishes very much. The law seeks to protect us against the unlikely event of GPS monitoring by other private citizens, fails to deter such monitoring for criminal purposes by being too weak, and ignores the one party most likely and most motivated to abuse it, the same party from whom the 4th Amendment was specifically intended to protect us: the state.
The View from the Left
Derek Smith
It’s true that Virginia House Bill 1981 does not accomplish much—it won’t limit law enforcement beyond the evanescent protections of 4th Amendment case law, nor will it provide a substantial additional deterrent to criminals from using electronic tracking devices. It could, perhaps, help secure the convictions of some criminals through plea deals, as additional, lesser offenses are extra bargaining chips for prosecutors, but this probably applies to such a small class of cases as to be a negligible effect of the law.
It does, however, appear to accomplish its apparent primary goal of restricting the activities of private investigators. The recently enacted bill was resurrected from proposal that died in the Virginia Senate in 2012, which sponsor Del. Joe May reportedly introduced in response to a complaint from a constituent. The constituent’s estranged wife hired a private investigator, who placed a GPS tracking device on the constituent’s car, apparently legally. So the law fits the stereotype of “reactive legislating” that we see all too often, especially in the realm of criminal law: something bad happened once, so let’s enact an overly-broad law to try to keep it from happening again.
Although the possibility of private investigators electronically tracking our movements is probably not a ubiquitous fear, nor a high priority for our attention, HB1981 at least does a decent job of addressing this small problem narrowly. The exemption in the law for private investigators still requires them to have the consent of the owner of the property they are tracking, and this limited exemption does not apply if the investigator is working for someone subject to any of a variety of protection orders. The law presumably would apply to situations like the aforementioned constituent’s, and prevent P.I.s from tracking people on behalf of stalkers or jealous exes. All of the other exceptions carved out in the law—for police, parents, vehicle fleet owners—keep the law as it is, and with a reasonable basis for doing so.
Most of the other states that have looked at this issue have taken a largely similar approach, but some have (more sensibly) more focused on the law enforcement side. New York and Illinois each have bills to subject electronic tracking to their states’ warrant requirements. They are laudable for setting a more explicit standard than the U.S. Supreme Court has, as this level of intrusion by the police should require a warrant. From a general expectation of privacy standpoint, GPS monitoring feels much more invasive than old-fashioned stakeout surveillance; from a legal standpoint, installing a tracking device is similar to a search (which requires a warrant) because it entails a physical trespass onto someone’s property or person. These two reasons engender some confidence that the federal and state judiciaries will impose a 4th Amendment (or state equivalent) warrant requirement on electronic tracking by police, even where it’s not specified by statute. Although the Department of Justice is still trying to exploit the ambiguity of U.S. v. Jones, the trend in the lower courts seems to be toward applying a stricter interpretation.
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