Tuesday, November 15, 2011
Ian Herbert (New York University) has posted Where Are We Now?: Location Tracking, Technological Change, and the Fourth Amendment (Berkeley Journal of Criminal Law, Vol. 16, Issue 2, 2011) on SSRN. Here is the abstract:
Thirty years ago, the United State Supreme Court decided that law enforcement’s use of a location-tracking device (a “beeper”) in a criminal investigation did not violate the Fourth Amendment’s prohibition against unlawful searches. Since then, the technology has changed drastically. But even more importantly, the field of location tracking has evolved from one that included only one kind of tracking device into one that includes hundreds of different devices. Some of today’s devices are satellite-based, while others use information received by cell phone towers; some are battery powered and others connect to a car’s battery; some transmit their location information directly to the investigators, while others store the data and must be retrieved by the investigator. Through interviews with law enforcement officials and manufacturers and examinations of government contracts, this article seeks to provide a history of the advancements in tracking technology and a close look at the devices currently in use. This article encourages all courts that face this constitutional question—starting with the Supreme Court in United States v. Jones, but continuing even after that case—to look closely at the capabilities of the device at issue.