The Maine Legislature recently voted to override the veto of Republican Governor Paul LePage of bill L.D. 415. L.D. 415 requires law enforcement agencies to procure a warrant to obtain location information of electronic devices which are GPS enabled. L.D. 415 also requires that the State notify the owner or user of the device being tracked within 3 days of obtaining the location information. As with almost any law that restricts government intrusion, there are some exceptions to the warrant requirement. Specifically, a warrant requirement is not required for emergency users, with owner’s consent, or where there is an immediate risk of death or harm.
Why is this big news? For starters, the type of information gathering that L.D. 415 will apply to, has essentially being going on without any privacy protection for citizens. But we can probably reasonably assume that the government agencies most need a pretty serious justification before tracking a gps device right? Maybe not. According a recent study by the ACLU, over 250 of the 380 police departments surveyed used gps tracking methods. Even more importantly, only a tiny fraction of those departments had any real safeguards in place with regard to obtaining such information.
The ability to track a cellphone or other device is more than just a momentary lock on a person’s location. It is the ability to see where and deduce what a particular person or group of persons is doing. It is an extraordinary power that police can wield with little effort. This is not the beige sedan 2 cars back following a suspect for a few hours or days. This is a surreptitious, zero-effort, total backstage pass to a person’s life and habits.
I think the Maine Legislature did the right thing and required that at a minimum, police must have probable cause in order to obtain this type of information. Judicial oversight into the invasion of American privacy is never a bad thing.
A quick update on the state of law and cellphone tracking. Maine has now become the second state to pass a law restricting cellphone tracking (the other is Montana). The U.S. Court of Appeals for the Sixth Circuit held in 2012 that police did not violate the constitutional rights of a man convicted of drug trafficking when they monitored his gps enabled phone. In a decision that conjures up images of a biased little league umpire, Judge Rogers writes that “[u]nfortunately for the drug runners, the phones were trackable in a way they may not have suspected. The Constitution, however, does not protect their erroneous expectations regarding the undetectability of their modern tools. The U.S. Supreme Court has not addressed the issue specifically, but has held that placing gps tracking devices in an individual’s car does violate their Fourth Amendment Rights.