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.
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.