Castle: 47 Seconds

In the March 26, 2012 episode of Castle, “47 Seconds,” the police use a rather snazzy bit of technology to identify their suspect: a recording of real-time GPS data tracking all cellphones. We already discussed GPS tracking in reference to Batman: Noel, but this seems to be another situation which would implicate U.S. v. Jones, the recent Supreme Court case dealing with this sort of thing and its interaction with the Fourth Amendment.

I. The Situation

After an apparent terrorist bombing, Captain Gates calls in a favor with the Department of Homeland Security, which gives her a highly accurate recording of the location data from all of the phones in the area of the bombing.

However, it’s not entirely clear exactly what’s happening here. There are two main possibilities. The more ominous one is that the Department of Homeland Security has a system in place to monitor the movement of GPS-capable devices in real time, and that it’s recording that data for later use. The alternative is that they’re simply tapped in to the wireless providers’ databases, presumably with the providers’ cooperation, and are either constantly monitoring it or simply request certain data as needed.

II. GPS and the Fourth Amendment

The basic question is whether monitoring of people’s GPS-capable devices 1) constitutes a “search” for the purposes of the Fourth Amendment, and 2) whether a showing of probable cause and a warrant would be needed if it is a search.

As mentioned above, the Supreme Court recently dealt with a situation where a federal agent stuck a tracking device on a defendant’s car and took electronic surveillance of him for about a month. They did not obtain a warrant for this device, and the defendant argued that this constituted a violation of his Fourth Amendment rights. The District Court permitted it, but the DC Circuit reversed and the Supreme Court affirmed the reversal. But the Supreme Court didn’t make it very clear exactly why the tracking was not permissible, and the only unequivocal holding is that electronic surveillance of public movements can, in certain circumstances, constitute a “search” for which probable cause and a warrant is necessary.

Let’s consider then the possibilities for “47 Seconds”. If DHS has set up a system whereby they constantly monitor and record the GPS data for all of the cell phones in the country, that would be unquestionably illegal. Jones makes that much clear. But a series of lower court cases after Jones draws a distinction between the use of a physical tracking device and the acquisition of records from cell phone providers. One of the first such cases, U.S. v. Graham, Criminal No.: RDB-11-0094 (D.Md. Mar. 1, 2012), the District of Maryland held that these records were distinct from sticking a physical device on someone, as records maintained by cell phone companies do not constitute personal “papers” as contemplated by the Fourth Amendment any more than any other documents maintained by a third party would. Another ruling just three days before this episode aired followed the same rule: In re Application of U.S. for an Order Pursuant to 18 U.S.C. 2703(D) No. 12-MJ-1084RBC (D. Mass. Mar. 23, 2012). Here, the court went so far as to not only authorize the warrant, but hold that no showing of probable cause was required because this wasn’t a “search” for Fourth Amendment purposes.

This opens up the possibility that getting these records from the cell phone providers might be permissible in ways that direct tracking of cell phones wouldn’t be. However, the Jones opinion, or rather opinions, as there are no less than one majority and two concurring opinions, makes clear that the Justices are very concerned about the potential for pervasive electronic surveillance, even if they were reluctant to draw a bright-line rule on the facts presented to them. This is probably a good thing, as it shows the hallmarks of a Court being careful not to jump ahead of the development of the law, but it does leave the issue largely unresolved for the moment. Still, one can certainly argue that the opinions, taken together, suggest that skirting around the warrant requirement by getting ubiquitous information from private third parties rather than by direct acquisition would probably not fly.

But that does leave a third possibility, one which the lower courts seem pretty convinced complies with the concerns described in Jones: getting cell phone data from carriers covering a discrete area at a discrete time, i.e., just getting the data for the time period immediately before and after the bombing, and only covering the area within a few blocks of the bombing. It’s going to be very hard to argue that this represents some kind of nefarious, privacy-violating surveillance system, as the information is limited in terms of both time and scope. No fishing expedition this. As the courts recognize that getting records from third parties doesn’t constitute a “search,” this seems like something the courts would probably okay. Jazzing up the GPS information with software that displays the information in something like real time doesn’t pose any special problems, so if this is the way it happened, it’s probably doable.

III. Conclusion

The episode is a bit light on the details in terms of the logistics of this information, how it’s gathered, and by whom, but there does seem to be a way for this to work consistent with Supreme Court Fourth Amendment jurisprudence. Still, this is a developing area of law, and it’s likely to be something we revisit as the case law evolves. But good on the writers for continuing to pick very timely situations.

10 responses to “Castle: 47 Seconds

  1. A couple questions:

    1) In the case where an agent warrentlessly attached a tracker to a suspect’s car and “tracked him for months,” would it have been any more legal if the agent had instead, taken it upon himself to follow the guy in more traditional tracking-and-stakeout fashion? Obviously, it would require the agent have the time for this, but given an assumption that he managed to have this kind of time, could he have doggedly and secretly kept his eyes on the guy using nothing more advanced than his own surveillance skills and perhaps a pair of binoculars?

    2) If there was a way to “scrub” all identifying information from GPS tracking data, so that you couldn’t say “Joe the Suspect is the one that’s THAT blinking dot,” would that make any 4th Ammendment protections easier to observe while still getting the data the police would find useful? When does information start being “public knowledge” rather than “invasion of privacy?” Obviously, the police can use a witness who happened to overhear Bugsy Mallone and the Joker plotting to assassinate Chief Commissioner Gordon, but could they, if they determined that Sally Waitress was close enough that her cell phone might have picked it up, subpoena her cell phone records? What if they do subpoena them, find out that no, she wasn’t close enough, but that she was actually working with Poison Ivy to plant mind-controlling pheromones into the drinking water? Could their subpoena for information regarding Bugsy and Joker allow them to use unrelated information against Sally in a different case?

    • Ryan Davidson

      As to the first question, the Jones decisions, together, read to suggest that the Court would have been a lot less concerned about the police conducting an old-fashioned stakeout. Keeping track of a suspect’s whereabouts by shoe leather doesn’t involve a “search” by Fourth Amendment terms, as one’s physical location is not subject to a reasonable expectation of privacy: anyone on the street can see you coming and going. The Court was concerned that the use of GPS tracking permitted the feds to gather information which, as such, is not protected, in a way that doesn’t require them to actually get out there and hoof it the way they’d have had to in the past. This lets them collect a lot of information for very little effort. But the Court didn’t actually make a clear ruling there, as it simply held that the tracking device, as such, was a search which required a warrant.

      As to the second, I don’t actually see GPS data without identifying information being useful at all. The ability to tell that a cell phone was at a given place at at given time doesn’t really tell us anything anymore, given that there are now more cell phones than people. The subpoena issue is besides the point: if the cops can get a court order for something, it is, almost by definition, not a violation of the Fourth Amendment.

      • What if DHS was recording the reported locations of all online cell phones at all times, but partially anonymizing the location data so that they would require phone company records to match up a particular location sequence with a particular phone. If they don’t get those phone company records except via a subpoena after they are already interested in a particular location track, would they be in the clear? This assumes they aren’t placing cell phones on anyone and that they aren’t causing the location information to be recoverable in the first place.

      • You’d actually be surprised what sorts of information you can mine from simply knowing how many cell phones are in a location at a time. Especially if you have real-time info about their movements. Just from that data, you can track traffic flow, monitor general interest in an area, etc. An advertising agency who had an ad on a public billboard could monitor how long people stuck around to examine their ad, and compare it to other ads. Even without specific identifying information, they could ASSIGN an ID code to a given “dot” and attempt to track it to see if it went to a place that sells their product.

        Take this same idea: you want to track a person’s progress. You can’t apply definite code to his “dot” on the GPS tracker, because you’re only given the “scrubbed” information. But if you can get eyes-on confirmation that a certain person is somewhere and match it to the scrubbed “dot,” you could apply a tracking label of your own to said “dot.” Would that be a search in violation of the 4th Amendment, or would that be close enough to “shoe leather” work to be kosher? It would still likely require periodic visual confirmation to prove that the “dot” is who you’re saying it is, but it would enable you to have much stronger tracking without actually being constantly on his trail, physically.

  2. It would seem to me (niavely) that requesting GPS data from within a certain period would be akin to getting camera surveillance records.
    Some shows (thinking Spooks/MI6 for example) use cameras plus face recognittion to track people. That looks to be coming close to GPS tracking. (Not that I have any idea how legal camera+face is…)
    Using technology to track people is becoming a more blurred line…

    • But Spooks is in Britain, so they have different laws (which allow for a lot more surveillance than we have here in the US). That being said, shows like L&O, etc do make extensive use of security camera footage to try to gather evidence about the crime, but it seems to me like the difference is that the camera is not person-specific. So it would be the same as having an eye-witness saying that Joe Suspect was in the lobby of the building just before the crime was committed. But getting the GPS data would require the police to already know that they are looking for Joe Suspect so that they can get his personal data.

      • Like I said, if you just get “scrubbed” GPS data that tells you where there “is somebody” who has a GPS-enabled device, then rely on cameras to let you know which “dot” is the one you want to follow, you can then tag that “dot” in your own system to track it with no more violation of privacy than security cameras already give you. Honestly, anybody who wants to avoid being GPS-tracked should, just as he’d avoid security cameras, probably not carry a GPS-enabled phone.

        Again, provided the agencies involved can’t just arbitrarily say “that phone is Segev’s,” but have to correlate the GPS data with something else to keep proper track of me, personally, it’s not a violation of my privacy. They have to have enough knowledge to know it really is ME they want to track. They can’t just do, what Mr. Daily said, a “fishing expedition” to see where Segev has been and is going just “in case” I do something wrong.

  3. I can distinguish the covert surveillance of the a suspect by placing a GPS locator beacon or recorder on a suspect’s person or personal effects and tracking of the GPS in a phone (in addition to the third-party factors described above):
    1) A person with a GPS phone has made an affirmative choice to have a GPS device on their person. (analogy: Having government agents paint your car purple so it can be easily located via helicopter is clearly infringing, but if a person paints their own car purple, it’s not.)
    2) Further, the device is under their control; if they want, they may leave the device behind and/or disable its tracking capabilities at will. They could even supply false or misleading data to the device.

    I think it’s a little spooky to see that the data already exists and has been collected before anyone knows that it will be needed, whether it’s the DHS or just a collusion between every cellphone service provider. (Both the episode and the analysis above glosses over the fact that to extract useful data, the police needed information from every carrier, in a format that allowed them to be easily combined into a coherent whole, which implies an awful lot of engineering. The episode also seems to assume that all phones can be tracked (they can’t) and that everybody has one (they don’t).

  4. ” If DHS has set up a system whereby they constantly monitor and record the GPS data for all of the cell phones in the country, that would be unquestionably illegal. Jones makes that much clear.”

    I think there are 5 votes for that proposition, (Kennedy, Breyer, Ginsburg, Kagan and Sotomayor in their respective concurrences in Jones) but as I recall, the majority in Jones rested its opinion on the trespass. If the DHS somehow monitors the GPS devices in your cellphones, that’s not a trespass since there is no minature constable hidden in your carriage. (sorry I couldn’t resiste) More seriously, they didn’t put the GPS device there. You did and you are broadcasting your location. (one assumes the carriers have setup your phone to transmit before they sold it to you.) That actually looks very similar to Knotts. Much more so than Jones.

    But if they depend upon the carriers directly and for a limited amount of information, (as appears to be the case here) I don’t think anybody but Sotomayor has made their views clear on the matter. It’s definitely not mosaic theory, it’s not trespass and it’s not Katz. Not to mention the fact that some of these cellphones might be in automobiles which overrides all Fourth Amendment concerns as the Framers clearly envisioned when they recognized the carriage exception. 😉

  5. In reality, the way they used GPS in “47 Seconds” wouldn’t work, since it required a resolution of a meter or less in real time. In fact, the GPS used in cell phones is nowhere near that precise; depending on the type of phone and the specific conditions, its accuracy can be anywhere from within a kilometer at worst to within around 10 meters at best. And the greater the accuracy you want, the longer it takes for your phone to locate enough GPS satellites to get sufficient resolution.

    So there’s no way the cops or the DHS could’ve had precise, real-time positional information on everyone in that crowd. The best they could do was determine that a given phone had been within 10 meters or so of the lamppost within about 30 seconds either way of the planting of the backpack, which wouldn’t have narrowed down their suspect pool that much.

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