This is a review of an article that appeared on aclu.org on 9/5/2018
In June 2018 SCOTUS made a ruling in Carpenter v. United States that found law enforcement officers had to obtain a search warrant before accessing a person’s historical location information from their cell phones. That decision will set in motion a possible tidal wave of cases that examine the protection from intrusion of privacy from the government. But what does that mean for the electronic monitoring industry, and how private and government entities interact with law enforcement?
One such case, Commonwealth v. Johnson in Massachusetts, will examine the “…warrantless search of a government database containing detailed historical location records of a suspect.” Such a case can call into question how GPS location records of those people—convicted of a crime or not—can be accessed and used by law enforcement.
The following is my opinion only and questions I form from that opinion, not from years of study on precedence or from a position of a practicing lawyer, but rather from more than a decade in the electronic monitoring industry. Through that experience, a number of gray areas quickly get called into question. I have found myself siding more with those monitored rather than with the government or law enforcement. I strongly believe that a person’s right to privacy should be respected and should remain intact under most any circumstances.
So here is where my position gets weird. People are most commonly monitored with GPS due to high-risk assessments or the nature of the crime for which they are accused or convicted. Additionally, there are reasons such as jail diversion or overcrowding and even privately by the bail industry that works diligently to protect their investment in posting high-dollar bonds. With the vast spectrum of reasons and entities performing the monitoring, which sets of data should be off limits to law enforcement, and for how long? If law enforcement was reviewing data in real-time does that make it more or less intrusive than if they were reviewing data from two days ago? What about one month ago, one year ago, or five years ago?
My stance is that the monitoring is a trade-off—commonly being in jail or not being in jail. When someone is monitored on a GPS device they are signing documents understanding that they are being tracked, where that information goes and who has access to it. In all cases I am aware of, the person being tracked will typically embrace electronic monitoring rather than being held in a jail cell. So back to my question from the previous paragraph; when should the data expire and no longer be accessible?
The government is behind the times on creating concrete, universal guidelines to be used in the private sector and government entities alike. I’ve seen contracts that require monitoring companies to retain records for seven years and conversely, I’ve worked with corrections departments that expressly have written in our contracts that we cannot provide data to anyone but them.
The point is that in nearly all cases, the persons being monitored have knowingly waived their rights to privacy, in a similar fashion to how parolees waive their rights to searches of their homes. The very nature of technology is such that the person being monitored knows that at any time their location information is accessible. The real-time data collection is in actuality delayed due to cell communication capabilities. So, if it is already delayed, what time frame are we using? If a person enters a location- or communication-impaired area, the information is delayed even longer, so again at what point should the data no longer be useful?
The underlying question in the case is whether law enforcement can access the information without a warrant. The data is not posted on a public forum and it is not part of any record of proceedings, however, it is archived. The monitoring company owns the data, in a similar way that online merchants, social media and other websites collect and own your browsing data, shopping history and demographic information. We gladly sign away our privacy rights on a daily basis because we don’t want to be bothered by reading the 27 pages of terms and conditions.
So, what would constitute reasonable cause for a warrant in these cases? Unless law enforcement has a specific reason for accessing a specific person’s historical data, it is like throwing darts at a dartboard. What if law enforcement bought the information from monitoring companies like marketing firms purchase historical data from websites? Does that make accessing the data without a warrant any more or less compelling of an argument?
The SCOTUS decision in Carpenter will be revisited many times over the next several months. It will be interesting to see the outcomes of those cases as it pertains to the accessing of historical location data of individuals monitored on GPS. But one thing is for sure, until there is a universal understanding of how the industry of private location monitoring works, there will be a number of cases brought that seek to find answers to how data can be accessed and used. Is a warrantless viewing of data if someone is in imminent danger acceptable? What if law enforcement believes that the person being monitored is in immediate danger? Can location data of the monitored person be used against someone else? What about using collective location data of multiple monitored persons to identify gang or drug activity that threatens the community?
There are a number of questions to be argued and answered by people way smarter than I am. The only thing we can do is await the outcomes of these cases and adapt policy and procedure accordingly. I sincerely hope the cost saving measures of electronic monitoring are not jeopardized because local governments would be faced with the crushing prospect of overcrowding jails making them less safe for those detained and for the staff, or making communities less safe because potentially dangerous criminals could be released without proper supervision. It’s a complicated subject and is worthy of debate and discussion from all stake holders.