STEVE INSKEEP, host:
This case raises a lot of interesting legal and law enforcement issues, and we're going to talk them through with NPR's justice correspondence, Carrie Johnson. Hi, Carrie.
CARRIE JOHNSON: Hi, Steve.
INSKEEP: Why is it that law enforcement officials are using this technology, putting these GPS devices on cars?
JOHNSON: They just don't have the resources to dispatch agents to follow somebody 24/7 in terms of visual surveillance. And so GPS devices placed inside or underneath a suspect's car allow them to track somebody in a sort of failsafe way for 24 hours a day. And it often works better than visual surveillance, where suspects can be lost.
INSKEEP: So when you say failsafe way, I'm thinking of the case of Faisal Shahzad, the attempted would-be Times Square bomber who was lost by the law enforcement officials at one point, wasn't he?
JOHNSON: Exactly, Steve. Remember, authorities had narrowed the list of suspects down and they were tracking Shahzad, except that he escaped their scrutiny for some period of time, and they eventually caught up with him on an airplane, where he was set to take off for the Middle East.
INSKEEP: So maybe a GPS device there might have actually made a difference in the case.
JOHNSON: They say so.
INSKEEP: And so they are using this other instances. How common is it that law enforcement authorities are using GPS devices, sticking them on people's cars?
JOHNSON: There are no clear statistics about this. But in a recent Federal Court brief, prosecutors say the Justice Department is using this GPS tracking technique with increasing frequency. They say it's a very important investigative technique for them.
INSKEEP: Are they only using it in terrorism cases?
JOHNSON: The court cases that have come up involving this issue so far have mostly involved drug traffickers and drug dealers, not national security threats of the sort that you mention with Faisal Shahzad, for instance.
INSKEEP: Okay. Now, when you talk to the FBI, when do they say they are allowed to stick a device on somebody's car? What evidence do they have to have in order to start doing that?
JOHNSON: The FBI says as part of its normal investigative practice, it can use GPS devices without a warrant. That means that they don't need to go to a judge, in most cases, and prove that they have probable cause to track a suspect.
However, Steve, it's important to note that courts are in conflict on this very issue of what the legal standard is. There's no clear cut answer. And Federal Appeals Courts all over the country have issued conflicting rules about this. So depending on what state you're in as an investigator, you may have a different rule.
INSKEEP: Without going through all the nuances of this, what are some of the different rules that are out there right now?
JOHNSON: A federal appeals court in California has ruled that the FBI does not need a search warrant, or a judge's permission in advance of placing one of these devices in a suspect's car.
However, more recently, a federal appeals court in D.C. has ruled that you do need a search warrant because these GPS devices amount to a search or a seizure under the Fourth Amendment to the Constitution.
INSKEEP: Which bans illegal search and seizures.
JOHNSON: Exactly.
INSKEEP: And are there other parts of the Constitution that get involved in the court cases here?
JOHNSON: Attorneys for criminal defendants say the First Amendment may also be implicated here, because the First Amendment deals with the freedom to associate.
And these GPS devices are so sophisticated that they can track a suspect going to an Alcoholics Anonymous meeting, to a rendezvous for an extramarital affair, to all sorts of things, like a church service, for instance.
And they say through a mosaic of these data points you can track a suspect's daily life in ways that are extremely intrusive to someone's privacy.
INSKEEP: Does this practice seem to be headed for the U.S. Supreme Court?
JOHNSON: It does indeed, Steve. Because the federal appeals courts around the country have conflicted on this issue, that's one of the things that makes a legal issue very attractive for the U.S. Supreme Court down the line.
INSKEEP: I just want to ask one other question about this, Carrie Johnson. We have this issue about whether you can, without a warrant, slap a GPS device on somebody's car. This is the technological equivalent of just tailing them. Can the FBI right now just follow somebody without a warrant and see where they go?
JOHNSON: In some cases it can. However, the standard with technology is somewhat different. The Supreme Court first addressed this issue of technology and privacy back in 1983 in a case that involved a beeper device placed in a suspect's car.
In that case the Supreme Court ruled that it was not an illegal search or seizure to place a beeper device in somebody's car without a warrant. However, in that case the high court ruled that more sophisticated electronic surveillance devices may require warrants. And defense lawyers and other folks in the privacy community believe that a GPS device may be just that.
INSKEEP: NPR's Carrie Johnson, thanks very much.
JOHNSON: Thank you. Transcript provided by NPR, Copyright NPR.
