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    FindLaw: Highest Court of New York State Protects Privacy from GPS Monitoring

    At FindLaw, Cornell Law Professor Sherry F. Colb has a great analysis of People v. Weaver (pdf), which concerns GPS and privacy.

    Last month, in People v. Weaver, the New York Court of Appeals, the highest court of New York State, held that before attaching a GPS device to a suspect’s car and continuously monitoring the car’s whereabouts for 65 days, the police should have obtained a search warrant.

    In so holding, the court relied exclusively on the New York State Constitution’s analogue to the U.S. Constitution’s Fourth Amendment right against unreasonable searches and seizures. The court thereby insulated its decision from reversal by the U.S. Supreme Court (because a state’s highest court has the final word on the construction of state law). […]

    In the 1983 decision of United States v. Knotts, the U.S. Supreme Court considered a case in which police had planted a tracking device (a primitive version of the modern GPS) in a container of chloroform of which one of two defendants later took possession, placing it into a car. […]

    [T]he Supreme Court notably emphasized that “[n]othing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them in this case.” If we had to extrapolate from Knotts to Weaver (the New York case), we might therefore conclude that the U.S. Supreme Court would uphold the use of a GPS as simply “enhancing” the capabilities that people otherwise have “at birth” to observe cars in public spaces. […]

    As I noted above, the New York Court of Appeals rested its decision on state constitutional law and therefore did not directly challenge the federal ruling in Knotts. Nonetheless, the New York court took care to distinguish GPS devices from the primitive beepers at issue in Knotts, finding that the GPS technology “is a vastly different and exponentially more sophisticated and powerful technology that is easily and cheaply deployed and has virtually unlimited and remarkably precise tracking capability.”

    You should read the entire article.

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