The law does not lead, it follows. Our system is very reactive in nature. It tends to change, without my surprise, like people generally do as a direct result to negative events or influences. Smokers quit following the heart attack and our legal system create laws based upon past events. GPS technology has been around since about 1960. First used by the government, now used by nearly everyone and every company we interface with on a regular basis. You would think that 50+ years would be long enough to thoroughly and publicly vet any laws or regulations affecting the general population, but this never seems to be the case in a reactive society.
Recently, about a month ago actually, a new proposal was submitted by the Senate for adoption known as the Geolocational Privacy and Surveillance Act or for short, the GPS Act. (Cute name huh?) Here are the highlights. As you might expect, I cannot resist commentary.
Overall the GPS Act:
- Provides clarity for government agencies, commercial service providers, and the public regarding the legal procedures and protections that apply to electronic devices that can be used to track the movements of individual Americans. In a recent memo, the Congressional Research Service identified a lack of cohesion throughout criminal court jurisdictions over what standards and procedures must be met in order for information gathered though GPS devices to be used in court. This lack of clarity has led to confusion among law enforcement and prosecutors who waste valuable time and resources litigating and appealing what should be clear cut rules. The GPS Act takes steps to establish clear cut rules. (The clear answer is that dumbing-down legal rules work to the advantage of the government’s emissaries, not it’s citizens. I certainly love technological advancement because on one hand, we continually increase our capabilities and one the opposite hand, these technologies constantly erode our personal rights to privacy. The law will not help us or protect us. If you understand the law, you will also acknowledge the fact that it has less to do with what is right and more with who is able to argue their point more successfully. The back office story is fraught with subjective influences that again, do not necessarily work for what is right, but who can influence more powerfully.) (Electronic Counter Measures, otherwise known as ECM is the private citizens friend. For every technology that is developed to intrude upon your freedom, there are opposing countermeasures that are also available to defend yourself.)
- Requires the government to show probable cause and get a warrant before acquiring the geolocational information of a U.S. person, while setting out clear exceptions such as emergency or national security situations or cases of theft or fraud. (The broad stroke “National Security” rational is a subjective one for certain. The addition of emergency, theft or fraud is an interesting twist. Basically, we have moved from “Innocent before proven guilty” to “Guilty before proven innocent” it seems.) (By the way, for a mere $20 USD, you too may purchase a simple GPS jammer that would thwart GPS tracking technology while in your vehicle. Portable units are also available for about $55 USD.)
- Applies to all law enforcement acquisitions of the geolocational information of individual Americans without their knowledge, including acquisition from commercial service providers as well as from tracking devices covertly installed by the government. (Read any service providers acceptable use policy and you will invariably see the phrase “will cooperate with law enforcement if a criminal violation is suspected.” Now the term “criminal violation is suspected” is one of those ambiguous phrases that means “any reason we can think of at the time or by the time you get to court.”)
- Applies to real-time tracking of a person’s movements, as well as the acquisition of records of past movements. (Basically, this means active tracking of a person using a persons GPS equipment, such as the technology already built into smartphones. A step further is the covert installation of GPS technology on a person or something they own such as a vehicle to actively track their geolocation.)
- Closely tracks existing wiretapping laws with regard to court procedures for getting a warrant, penalties for acting without a warrant, exclusivity of the authority, authorization without a court order, etc. (Subject to change without much notice, especially to John Q. Public.)
- Creates criminal penalties for surreptitiously using an electronic device to track a person’s movements that parallel those for wiretapping. (Currently, if a persons ex-spouse taps her phone, he or she is breaking the law. This legislation would treat hacking his or her GPS to track their movements as a similar offense).
- Prohibit commercial service providers from sharing customers’ geolocational information with outside entities without customer consent. (We already know that Internet Service Providers and Telecommunication Providers have agreements in place to facilitate harvesting of subscriber data easier and covert, why do you think this would stop with geolocational data?)