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Last month, the United States Court of Appeals for the District of Columbia Circuit, overturned the District Court’s denial of the Defendant’s motion to suppress and held that the use of a GPS device to track the Defendant’s automobile for a month without a warrant was an unreasonable search within the meaning of the Fourth Amendment and required a warrant. (See: U.S. v. Maynard, D.C. Cir., 08-3030, Aug. 6, 2010). In that case, as I discussed in my Blog last week (Automated License Plate Readers – The Beginning or the End?), the Government used the illegal GPS and Defendant Jones’ cell-phone records to create a picture of a person who mirrored the Government’s allegations in the indictment. His day-to-day movements were locked –down. And used against him. My favorite part of Circuit Judge Ginsburg’s decision (p.26) [warning, .pdf] discusses the day-to-day use of the GPS against citizens: “It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person‘s hitherto private routine.”

The 7th and 9th Circuits have already held that the warrantless use of the GPS trackers is acceptable (United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010); United States v. Garcia, 474 F.3d 994 (7th Cir. 2007). A nice circuit-split developing to be resolved by the Supreme Court. I love the smell of a circuit split in the morning, smells like more blog posts!

The use of electronic surveillance by law enforcement is quickly approaching critical mass across the United States. Between the Internet, street-level surveillance camera systems, GPS tracking technology and automated license plate recognition systems (ALPRS, “automated license plate recognition system” is a system of one or more mobile or fixed high-speed cameras combined with computer algorithms to convert images of registration plates into computer-readable data), the amount of information that could be available to the government about your life and activities is extremely interesting. And not necessarily interesting in a good way.

The Maine Legislature has concerns about the impact that non-court regulated police surveillance activities could have on our lives.  In the last session, the Legislature limited the use of automated license plate recognition systems to the police, Maine Department of Transportation and Maine Turnpike Authority.  It also limits the storage of the data to twenty-one (21) days unless specific data is considered intelligence or investigative information or commercial vehicle screening data. 29-A M.R.S.A. § 2117-A.

But is this enough?  When you leave your home to go shopping, do you expect that the police are going to scan your license plate, tag it in the computer and potentially track your activities by making a record of where you were on a particular date and time?  Will they or do they have the ability to instantaneously cross-reference that tag to your driving record? There is nothing in the modified law to stop law enforcement from posting a ALPRS on the road into and out of your town, thus tracking who is coming and going. The ALPRS could prove I was at the bakery and off my diet!  Triangulate the ALPRS with credit/debit card data or Transpass and my day-to-day movements are locked-down.