Warrantless GPS Tracking - Invasion of Privacy?

Former U.S. Attorney for N.J., Christopher Christie, now running for Governor, has come under fire for authorizing warrantless GPS tracking of individuals.  To be clear:  all such authorizations were accompanied by court authorization by federal magistrates, though not through warrants.  In 2007, the Justice Department recommended -- but did not require -- that federal prosecutors obtain warrants for such electronic surveillance.  Nonetheless, this decision was to be made on a case-by-case basis.

GPS tracking does involve a privacy invasion.  Through this technology, the government can learn details about a person's whereabouts and travel.  This can hardly be disputed.  But this is not the end of the analysis.  The follow-up questions are whether (1)  such surveillance implicates constitutionally-protected privacy interests, or (2) electronic surveillance laws are implicated.  If the answer to these questions are "NO," then any outrage being expressed by civil rights organizations may fall on deaf ears in the courts, Congress or the public at large.

As for question 1, it is far from clear that the federal constitution includes such a privacy interest.  Individuals are themselves traveling publicly, so it is difficult to imagine a "zone of privacy" protecting one's location.  This is not the case where, for example, the government uses thermal scanners to determine location within a home.  It is nonetheless troubling to know that the government can institute surveillance based upon GPS tracking, even without judicial warrant authorization.  But, then again, the government can lawfully surveil people without GPS without any authorization.

As for the second question, it appears to me that electronic surveillance laws also do not address the issue of GPS tracking.  In the absence of such prohibitions, remedying the situation becomes more difficult.  An attorney colleague from N.Y. recently faced this situation in a motion to suppress GPS tracking results obtained without a warrant.  The court noted that the federal wiretap act provides no remedy, even if a violation were found to have occurred.   The existence of a right but not a remedy seems to be a common theme in electronic surveillance litigation.  In N.J., the Supreme Court recently held in State v. Reid that we have state constitutional protections in the information held by internet service providers.  This is to be compared with federal constitutional interpretation.  No federal constitutional privacy right exists.  Nonetheless, in Reid, the State argued that there should be no remedy for violation of this right, which the State contended existed under the state Wiretap Act and not the state Constitution.  In a sense, the State was correct:  N.J.'s Wiretap Act provides for suppression only of unlawfully intercepted "communications," generally the contents of phone calls.

So what is to be done?  Electronic surveillance laws have simply not kept up with technology.  The government's surveillance techniques seek to harness cutting-edge technology.  So the law should be revised to reflect the reality of possible government overreaching.  The ACLU has suggested that Congress amend federal law to address cell phone and GPS technology.   According to an ACLU staff attorney, "Tracking the location of people's cell phones reveals intimate details of their daily routines and is highly invasive of their privacy."  A warrant should be required, according to the ACLU, before such surveillance techniques are approved.  Presumably the ACLU would seek a suppression remedy, if this evidence were obtained in the absence of judicial authorization.  

Irrespective of the outcome, it is apparent that new technologies raise issues about increased invasions of privacy.  We should be prepared to address these so that the public is aware of this situation and a possible absence of rights and/or remedy under law.