The Burlington Free Press, Dec. 24, 2013
Lawmakers and the courts must move swiftly to address the civil rights implications of emerging technology in an ever more connected age.
A federal appeals court turned aside an appeal by the lawyers argued that evidence from a GPS device planted on a defendant's car in Vermont without a search warrant was improperly allowed in a trial.
Common sense would seem to dictate that law enforcement would need court permission to use a device as intrusive as a GPS to track a suspect.
But what seems like common sense was not the law in 2009, when an agent from the federal Drug Enforcement Administration placed a GPS device on then-drug suspect Stephen T. Aguiar's car.
Aguiar was convicted in 2011 of conspiracy and distributing cocaine in 2008 and 2009. Evidence from the GPS tracking was also introduced in the trials of William Murray and Corey Whitcomb, both convicted on lesser charges.
That didn't happen until 2012 when the Supreme Court ruled that police must obtain a search warrant before placing GPS tracking devices on a vehicle.
In their unsuccessful appeal before the 2nd U.S. Circuit Court of Appeals, the defense lawyers argued evidence gathered using the GPS devices without a search warrant violated Fourth Amendment protection against unreasonable searches and seizures.
The appellate court acknowledged in its ruling, "The GPS device was used to track Aguiar's vehicles on public thoroughfares, with technology undertaking an activity that police officers would have physically performed in the past."
But the court said the U.S. Supreme Court ruling that planting a GPS device on vehicles to track movements amounts to a search, thus requiring a court-approved search warrant until three years after Vermont incident.
The ruling, in effect, says that in 2009 the law had yet to catch up to the growing use of a technology by law enforcement.
The high court ruling shows how interpretation of the law can adapt to the spread of new technology, but the pace needs to pick up.
The pace of innovation today means that several generations of a technology can come online in three years with new challenges.
Those entrusted with preserving Americans' constitutional rights must keep up with the pace of emerging technology.