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8 J. Int't Com. L. & Tech. 1 (2013)

handle is hein.journals/jcolate8 and id is 1 raw text is: JICLT journal of International Commercal Law and Technology Vol. 8, No.1 (2013) Warrantless GPS Tracking: Who Cares About Vehicle Transponders - What About Your Cell Phone? Eric Samuel Heidel* ericheideluatt.net Abstract: The government now regularly gathers information from individuals' smartphones. Cellular providers are allowing the government to access the GPS data that users' smartphones exchange with the provider. While there are legitimate purposes for this disclosure without the consent of the smartphone user, there are many instances were no emergency situation exists and no search warrant is even sought. The law currently views sharing GPA data with a cellular provider as a voluntarily disclosure, creating a lesser expectation of privacy. Although posting locations on social networking sites is a clear public disclosure, using modem technology for directions or other conveniences should not cause an individual to forfeit privacy. 1. Introduction The Supreme Court recently released its highly anticipated decision in United States v. Jones, holding that placing a Global Positioning System (GPS) tracker on a private vehicle is a search within the meaning of the Fourth Amendment of the Constitution. Only a few decades ago, this issue would have been beyond anyone's imagination. Lower courts and even the Supreme Court have found previous Fourth Amendment decisions to be of little help in the quickly advancing technological world of the twenty-first century. More specifically, the Court has been presented with several cases involving tracking devices. It began with beacons that emitted a signal up to a certain distance, and most recently, in Jones, the Court dealt with placing GPS transponders on vehicles. Before the late twentieth century, police would simply follow a suspect on public thoroughfares. This surveillance technique did not implicate any constitutional protections since police were on public streets, and Supreme Court cases suggest that such visual observation is constitutionally permissible. Traditional surveillance would have required a large team of agents, multiple vehicles, and perhaps aerial assistance. Unlike the current situation where a small GPS device is largely undetectable, private citizens could previously, with relative ease, determine if law enforcement was following them. GPS trackers are controversial because without inspecting the entire vehicle, undercarriage and all, before each outing, the common citizen is unlikely to be aware of the device and subsequent tracking. However, now that GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: 'limited police resources and community hostility.' Tracking smartphones is far more practical than tracking vehicles with transponders attached; that is, the average person is unlikely to ever leave his or her phone behind. Americans wear their phones on their arms when they run or walk, bring them along when traveling by car, bus or train, and otherwise have them in a pocket, coat, or bag on their person. In fact, as of June 2011 ... there were more than 322 million wireless devices in use in the United States. The central issue is whether the police can track the GPS built into a smartphone without a warrant. The underlying question is whether the tracking of the GPS location of a smartphone is even a search at all. The first part of this article explores the Fourth Amendment to the United States Constitution and the relevant search and seizure jurisprudence of the United States Supreme Court. The second part delves into the Katz reasonable expectation of privacy test that the concurring Justices indicate is most appropriate for future cases that do not involve a physical intrusion of any kind, as is the case with the built-in GPS transponders of smartphones. The third section addresses the limitations that the Court's 1

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