830

IN THE

DEC ~ ~ 2016(~I~i~ OF THE CLERK

Supreme Court of the Uniteb States

HASSAN EL-NAHAL,INDIVIDUALLY AND ON BEHALF OF ALL

OTHERS SIMILARLY SITUATED,Petitioner,

V.

DAVID YASSKY, ET AL,Respondents.

On Petition for a Writ of Certiorari to theUnited States Court of Appeals

for the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

DANIEL L. ACKMANLAW OFFICE OFDANIEL L. ACKMAN

-and-Participating Attorney for

The Rutherford Institute222 Broadway, 19th FloorNew York, NY 10038

TILIAVIAN J. BRECKENRIDGE*

BAILEY & GLASSER LLF1054 31st St., NW, Suite 230Washington, DC 20007202-463-2101tbreckenridge@baileyglasser.com

PATRICIA E. ROBERTS

WILLIAM & MARY LAWSCHOOL APPELLATE ANDSUPREME COURT CLINICP.O. Box 8795Williamsburg, VA 23187Telephone: 757"221"3821

*Counsel of Record Counsel for Petitioner

BLANK PAGE

QUESTIONS PRESENTED

1. Whether an individual whose location wastracked by a GPS device placed in his vehicle hasFourth Amendment standing to challenge thattracking if he was not in possession of the vehiclewhen the GPS tracking device was installed?

2. Whether there is a Fourth Amendment rightagainst the government searching an individual’sGPS tracking information to investigate criminalactivity without a warrant?

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PARTIES TO THE PROCEEDINGS

The Petitioner in this case is Hassan E1-Nahal, anindividual. Petitioner was the plaintiff and appellantbelow.

The Respondents are:

David Yassky, the former chairman of the NewYork City Taxi and Limousine Commission ("TLC");

Matthew Daus, the former chairman of the TLC;

Michael Bloomberg, the former Mayor of the Cityof New York; and

The City of New York, a municipality of the Stateof New York. The TLC is an agency of the City of NewYork.

The Respondents were defendants and appelleesbelow.

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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .......................................i

PARTIES TO THE PROCEEDINGS .........................ii

TABLE OF AUTHORITIES .......................................v

OPINIONS BELOW ...................................................1

JURISDICTION .........................................................

STATUTORY PROVISIONS INVOLVED ................1

CONSTITUTIONAL PROVISIONINVOLVED ......................................................1

INTRODUCTION .......................................................2

STATEMENT OF THE CASE ...................................4

REASONS FOR GRANTING THE WRIT ...............11

I. THE CIRCUITS ARE DIVIDED ON THEEFFECT OF UNITED STATESV. JONESON FOURTH AMENDMENTSTANDING ........................................................11

A. The circuits disagree on whether FourthAmendment standing under Jones islimited to the victim of the initialtrespass of placing a GPS device on avehicle ............................................................11

B. The Court’s guidance is needed toresolve the conflict on this exceedinglyimportant issue ..............................................17

iv

II. THIS CASE PRESENTS A QUESTIONOF EXCEPTIONAL IMPORTANCEREGARDING MINING OF GPS DATA ...........21

CONCLUSION .........................................................31

APPENDICES

Appendix A: Opinion of the United StatesCourt of Appeals for the Second Circuit(Aug. 26, 2016) ...............................................la

Appendix B: Opinion of the United StatesDistrict Court for the Southern Districtof New York (Jan. 29, 2014) ........................27a

Appendix C: Order of the United States Courtof Appeals for the Second CircuitDenying Petition for Rehearing EnBanc (Sept. 26, 2016) ...................................47a

Appendix D: 42 U.S.C. § 1983 ................................49a

Appendix E: Rules of the City of New YorkTitle 35 §§ 1-11; 3-06 ...................................50a

V

TABLE OF AUTHORITIES

Cases

Page(s)

Alexandre v. New York City Taxi andLimousine Comm’n, No. 07"CV’8175RMB, 2007 WL 2826952 (S.D.N.Y.Sept. 28, 2007) .........................................................6

Bergerv. New York, 388 U.S. 41 (1967) ...................27

BuIiga v. New York City Taxi andLimousine Comm’n, 324 Fed. Appx. 82(2d Cir. 2009) .........................................................10

Coolidge v. New Hampshire, 403 U.S.443 (1971) ...............................................................28

Cupp v. Murphy, 412 U.S. 291 (1973) ......................27

Dayisv. Mississippi, 394 U.S. 721 (1969) ................27

Florida v. Bostick, 501 U.S. 429 (1991) ....................27

Illinoisv. Lidster, 540 U.S. 419 (2004) .....................27

In re United States, 872 F.2d 472 (D.C.Cir. 1989) ................................................................25

Kyl]o v. United States, 533 U.S. 27(2001) ......................................................................23

Mancusiv. DeForte, 392 U.S. 364 (1968) .................28

Marylandv./~:~g,133 S. Ct. 1958 (2013) ...........28, 29

Olmsteadv. United States, 277 U.S. 438(1928) ......................................................................30

People v. Weaver, 12 N.Y.3d 433 (2009) ...................25

Rskasv. I]]inois, 439 U.S. 128 (1978) ................12, 20

United Statesv. Baker, 221 F.3d 438 (3dCir. 2000) ................................................................20

United States v. Barraza’Maldonado,732 F.3d 865 (8th Cir. 2013) .................................15

United States v. Cuevas-Perez, 640 F.3d272 (7th Cir. 2011) .................................................30

United Statesv. Davis, 750 F.3d 1186,(10th Cir. 2014) ......................................................15

United Statesv. Di Re, 332 US 581(1948) ......................................................................29

United States v. Gibson, 708 F.3d 1256(11th Cir. 2013) ..........................................13, 14, 20

United States v. Hernandez, 647 F.3d216 (5th Cir. 2011) .................................................14

United Statesv. Jones, 132 S. Ct. 945(2012) ..............................................................passim

United States v. Kate, 468 U.S. 705(1984) ................................................................16, 25

United Statesv. Katz, 389 U.S. 347(1967) ................................................................12, 20

United States v. Knotts, 460 U.S. 276(1983) ..............................................................passim

United States v. Lee, 898 F.2d 1034 (5thCir. 1990) ................................................................21

United States v. Pena, 961 F.2d 333 (2dCir. 1992) ................................................................21

United States v. Pineda-Moreno, 617F.3d 1120 (9th Cir. 2010) ......................................26

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Statutes

28 U.S.C. § 1254(1) ......................................................1

28 U.S.C. § 1331 ........................................................10

28 U.S.C. § 1343(a)(4) ...............................................10

28 U.S.C. § 1367 ........................................................10

42 U.S.C. § 1983 ........................................................10

Other Authorities

75 Am. Jur. 2d Trespass § 19 (2016) ........................18

Dep’t of Justice, Nat. Inst. of Justice,In vestiga tive Uses o£ Technology:Devices, Tools, and Techniques 13(2007), available athttps://www.nejrs.gov/pdffilesl/nij/213030.pdf ......................................................................4

Derek S. Witte, Bleeding Data in a Poolo£Sharks: The Anathema o£Privacy ina World o£DigJtal Sharing andElectronic Discovery, 64 S. C. L. Rev.717 (2013) ...............................................................24

Global Positioning System, GPSAccuracy, GPS.gov,http://www.gps.gov/systems/gps/performanee/aeeuraey/(last visited Dee. 17,2015) .........................................................................4

Global Positioning System, What isGPS~ GPS.gov,http://www.gps.gov/systems/gps (lastvisited Dec. 17, 2016) ...............................................4

Lee Rainie, Cell Phone Ownership Hits91°/5 o£Adults, PEW RESEARCH CENTER

(June 6, 2013),http://www.pewresearch.org/fact-tank/2013/06/06/cell-phone-ownership-hits- 91-of- adults/ ....................................................23

Neema Singh Guliani, WrittenTestimony of Neema Singh Guliani onbehalf o£ the American Civil LibertiesUnion Before the U.S. House ofRepresentatives Committee onOversight and Government Reform,Hearing on "Geoloca tion TechnologyAndPrivaey, AMERICAN CML

LIBERTIES UNION (Mar. 2, 2016), 2-3https://www.aelu.org/legal-doeument/aelu-testimony-house-oversight-and-Government-reform-eommittees-hearing-geoloeation ............................24

Orin S. Kerr, An Equilibrium-Adjustment Theory of the FourthAmendment, 125 Harv. L. Rev. 476,500 (2011) ...............................................................26

Products, Automotive, GARMIN,https://buy.garmin.com/en-US/US/cOnTheRoad-cAutomotive-pl.html (last visited Dec. 17, 2016) ......................24

Severin L. Sorensen, SMART Mappingfor Law Enforcement Settings:Integrating GIS and GPS for Dynamic,Near Real-Time Applications andAnalysis, in Crime Mapping andCrime Prevention 349 (DavidWeisburd & Tom MeEwen eds., 1998)available at

ix

http://www.popcenter.org/library/crimeprevention]volume_08/12-Sorensen.pdf ..................5

Surge, Fitbithttps://www.fitbit.com/surge (lastvisited Dec. 17, 2016) .............................................25

Rules

35 RCNY § 58-21(c)(1) .................................................5

35 RCNY § 58-21(c)(4) .................................................5

BLANK PAGE

1

PETITION FOR A WRIT OF CERTIORARIPetitioner Hassan E1-Nahal respectfully petitions

this Court for a writ of certiorari to review judgmentof the United States Court of Appeals for the SecondCircuit in this case.

OPINIONS BELOW

The opinion of the Second Circuit is reported at835 F.3d 248, and is reproduced at page la of theappendix to this petition ("App."). The unpublishedorder of the court of appeals denying rehearing isreproduced at pages 47a-48a of the appendix. Theopinion of the United States District Court for theSouthern District of New York is reported at 993 F.Supp. 2d 460 and is reproduced at page 27a of theappendix.

The SecondAugust 26, 2016.

JURISDICTION

Circuit rendered its decision onE1-Nahal filed a timely petition for

rehearing en banc on September 9, 2016, and thecourt denied the petition on September 26, 2016. ThisCourt has jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The text of the relevant statutes are set forth inthe appendix to this petition. App. 49a-53a.

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment to the United StatesConstitution provides:

The right of the people to be secure in theirpersons, houses, papers, and effects, againstunreasonable searches and seizures, shall notbe violated, and no Warrants shall issue, butupon probable cause, supported by Oath oraffirmation, and particularly describing the

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place to be searched, and the persons or thingsto be seized.

INTRODUCTION

The Respondents electronically tracked themovements of taxi cab driver, Petitioner Hassan E1-Nahal, and then baselessly--and unsuccessfully--administratively prosecuted him £our times, allegingthat he improperly charged customers on six rides outof 9,000. Nonetheless, the Second Circuit dismissedHassan E1-Nahal’s § 1983 suit against various NewYork City authorities because E1-Nahal did not ownthe taxicab and he was not operating it when the GPStracking device was placed in the vehicle. Accordingto the Second Circuit, E1-Nahal has no FourthAmendment right against this surveillance. This casethus directly presents the questions raised by theconcurrences in United States v. Jones, and theconfusion arising in the lower courts about a trespass-based right against government electronic tracking ofmovement.

To the extent this ease could or should be decidedon a trespass-based rationale, the Second Circuitcreated a division in the circuits when it determined--without any briefing on the issue--that that E1-Naha]did not have standing to bring his suit because he didnot possess the vehicle on which the GPS device wasplaced at the time o£ installation. App. 18a. Inreaching its conclusion, the court disregarded the factthat E1-Nahal later possessed the vehicle during theperiod when the GPS tracking was conducted and thatthe data obtained was used to bring repeatedproseeutorial actions against E1-Nahal--charges ofwhich he was ultimately cleared. App. 6a-7a. Thisconflicts with the Eleventh Circuit, which ruled thatstanding to challenge a search by the physical

3

intrusion of placement of a GPS tracking device is notlimited to individuals with possessory interest at thetime of installation of the device; instead, anindividual has standing to object to a search by GPStracking whenever he has possessory interest at thetime of the search.

The conflict between the circuits reflects a broaderquestion: whether there is a Fourth Amendment rightagainst the government searching an individual’sGPS tracking information to investigate criminalactivity without a warrant, regardless of whethersuch tracking involved physical trespass. While thecircuits have followed the Court’s reasoning inJones does not address the mining of an individual’slocation data as a search triggering FourthAmendment rights.

As a result, there are no defined boundaries as toan individual’s right against the government, withouta warrant, obtaining his GPS information fromsources that do not require a physical trespass againstthe individual. Due to the ubiquity of GPS-equippeddevices in everyday life and the vast amount of datathese devices are able to offer, this lack of protectivelimits on government access poses risks of potentialabuse by the government in collecting, aggregating,and using such data, just as the City of New York didhere. Resolving these questions would provide neededguidance to the lower courts as to whether a searchhas occurred, and help them resolve the limits of thegovernment’s power to track individuals’ movementson a minute-by-minute basis for potentially indefiniteamounts of time without a warrant.

The Court should grant certiorari and resolve thisconflict between the circuits, and to address the issuesleft open by Jones. By concluding that there had been

4

no search because E1-Nahal did not possess thevehicle at the time of the installation, the SecondCircuit improperly imposed a standard fordetermining whether a search has been conducted inviolation of the Fourth Amendment that wouldprevent many individuals from vindicating theirrights against warrantless searches in the future.

STATEMENT OF THE CASEFactual Background: This case arises from New

York City’s policy of mandatory warrantless GPStracking of all city medallion taxi drivers and itssubsequent prosecution of taxi drivers based on thedata obtained through the tracking. The GlobalPositioning System is comprised of a group ofgovernment-owned satellites that continuouslytransmit navigation data to Earth. See GlobalPositioning System, What is GPS?.I Any GPS receivercan then read the transmissions sent from thesatellites, and the receiver uses that information tocalculate the approximate position of the receiver towithin a few centimeters. Global Positioning System,GPS Accuracy.2 That location information can thenbe either stored in the receiver or sent continuously toanother device remotely, as determined by the personwho controls the receiver. See Dep’t of Justice, Nat.Inst. of Justice, Investigative Uses of Technology:Devices, Tools, and Techniques 13 (2007).3 Once thelocation information is collected, it can be used tocreate a visual depiction of the target’s travels for the

1 Available at: http:/lwww.gps.govlsystemslgps (last visited Dec.

17, 2016).

2 Available at: http:/lwww.gps.gov/systems/gps/performance/accuracy/(last visited Dec. 17, 2015)o

3 Available at: https://www.ncjrs.gov/pdffilesl/nij/213030.pdf.

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entire period during which the receiver was collectingthe transmission signals from the satellites. SeverinL. Sorensen, SMART Mapping_for Law En_foreementSettings: Integrating GIS and GPS for Dynamic, NearReal-Time Applications and Analysis, in CrimeMapping and Crime Prevention 349 (David Weisburd& Tom MeEwen eds., 1998).4 GPS is thus able to giveprecise, global, three-dimensional positioninformation on a continuous basis regardingwhomever is targeted.

In 2004, the New York City Taxi and LimousineCommission (the "Commission"), the agencyresponsible for regulating the taxi and for-hiretransportation industry, promulgated an agencyregulation that required that every medallion taxicab(a/k/a yellow taxis) be equipped with a GPS trackingdevice, part of a Taxicab Technology System. App. 4a.Taxi drivers, who must be licensed by the Commissionoften do not own their own medallion, which is alicense to operate a yellow taxicab. Instead, driversmay lease a taxicab and a medallion on a daily orweekly basis. Some lease a taxicab and medallion bythe day. See 35 RCNY § 58-21(c)(1) (capping leaserates for single shift rentals of taxicab andmedallions). Others may own or lease a taxicab andlease a medallion long-term. See 35 RCNY § 58-21(c)(4) (capping lease rates for weekly medallionrentals). The Commission’s mandatory systemconsisted of a physical device located in the taxicabthat would, among other things, transmit to theCommission electronic data about every trip made bya taxi driver gathered by means of GPS technology.

4 Available at: http://www.popcenter.org/library/crimepreventiordvolume k08/12-Sorensen.pdf

6

App. 4a. This device could not be used by the driveras an aid in navigation. JA222.

A year earlier, the Commission discussed the useof GPS technology in medallion taxicabs within theNew York City taxi industry and publicly. Alexandrev. New York City Taxi and Limousine Comm’n, No.07-CV-8175 RMB, 2007 WL 2826952, at *3 (S.D.N.Y.Sept. 28, 2007). Certain "customer serviceenhancements," including the GPS deviees, wereconsidered in conjunction with a proposed increase incab fares and as a response to "antiquated" methodsof data collection and payment used at the time. Id.Prior to the GPS device mandate, regulations requiredtaxi drivers to create and maintain their own triprecords. App. 4a. The use of GPS technology wouldallow for the automatic and remote collection of dataabout every medallion taxieab’s location at everymoment the driver is on duty, id.--information anddetail that would be impossible to gather with suchaccuracy through driver self-reporting. The systemwould also automatically record fares, pickup pointsand drop-off points. Id.

At that time, taxi drivers expressed privacyconcerns that the GPS technology would be used forsurveillance. A group of drivers sought to enjoin theproposed rule from taking effect. Alexandre, 2007 WL2826952. Although this effort was not successful,during the Alexandre action and in response to driverconcerns, the Commission assured the federal court,taxi drivers, and the pubfie at large that the mandatedGPS system and related technology would be usedonly for limited purposes and would not violate thedrivers’ expectations of privacy or result inprosecutions. See, e.g., JA131-132. In a "Statementof Basis and Purpose" issued prior to the passage ofthe rule, the [Commission] indicated that the

7

technology would be used for research, policy, andcustomer service purposes: to allow for centralizeddata to permit the "complex analysis of taxicabactivity" in the five boroughs, to "provide a valuableresource for statistical purposes," to enablepassengers to follow their route on a map, and to aidin recovery of lost property. JA129. Further, on itswebsite providing information to taxi drivers, theCommission disavowed any intention to use the GPStechnology to track drivers for investigatory purposes.JA131-132.

The GPS device rule was approved, and mandatedinstallation of the system in all taxicabs by mid-2007.App. 4a. Through the GPS devices, the Commissionbegan to automatically and remotely collect detailedtrip information from every medallion taxicab--morethan 13,000 vehicles. See JA113.

In March 2010, the Commission announced in apress release that "using GPS technology installed intaxicabs," it had discovered that some taxicab driverswere abusing the taxi fare "rate code" system toovercharge passengers. App. 5a. The press releaseindicated that the illegal fare was charged in "0.5% ofall trips," and that the alleged "scam was primarilyperpetrated by a small number of drivers, with 3,000drivers overcharging more than 100 times." Id. Twomonths later, the Commission issued a second pressrelease reporting that the scope of the "scam" waslarger than it reported originally. Ido TheCommission’s "completed analysis" alleged that"21,819 taxicab drivers overcharged passengers atotal of 286,000 times for a total estimatedovercharge of almost $1.1 million." Id. Theovercharges reflected by this data represented lessthan one percent of all trips. JA146. In response,despite the assurances given by the Commission to

8

the federal court and taxi drivers that no prosecutionswould result from the data gathering, the ManhattanDistrict Attorney’s office arrested 59 drivers "fordefrauding and stealing from their customers," andthe Commission commenced administrative actionsagainst thousands of drivers. Id.

E1-Nahal, a taxi driver for more than twentyyears, was among those prosecuted by theCommission in administrative actions. App. 6a. TheCommission alleged that E1-Nahal, a full-time taxidriver who completed more than 9,000 trips per year,overcharged passengers on 10 occasions betweenNovember 2009 and February 2010 based oninformation obtained via the mandatory GPS devicethat was investigated without a warrant and in theabsence of any passenger complaint. JA23; JA178-179. E1-Nahal, like many drivers, leased his taxicaband medallion from a fleet, so he was not in possessionof the taxi in which he was tracked at the time theGPS was installed.

E1-Nahal contested the allegations. In May 2012,an administrative law judge found, based on triprecords Commission obtained via GPS, that E1-Nahalviolated Commission rules on six occasions. JA186.The administrative law judge imposed upon E1-Nahal$550 in penalties and revoked E1-Nahal’s Commissionlicense to drive taxicabs. Id. On appeal, the Office ofAdministrative Trials and Hearings Taxi andLimousine Tribunal Appeals Unit ("Appeals Unit")overturned the penalty, ruling that theadministrative law judge’s decision was"notsupported by substantial evidence." JA187.TheCommission then re-filed just one charge. JA189.This time, the administrative law judge found E1-Nahal not guilty. Id. Undeterred, the Commission re-filed the remaining five charges against E1-Nahal.

9

JA192. Still another administrative law judge foundE1-Nahal guilty, imposed a fine, and revoked hislicense. JA192-94. E1-Nahal again appealed, and theAppeals Unit again overturned the administrativelaw judge’s decision concluding the findings withrespect to E1-Nahal’s alleged intent to overchargewere insufficient. JA194-95. Nonetheless, for afourth time, the Commission re-filed the same chargesagainst E1-Nahal. JA211-13. An administrative lawjudge found E1-Nahal guilty, based in part on GPS triprecords and Google maps. The Appeals Unit reversedagain and dismissed the charges, this time withprejudice. JA213-16. While E1-Nahal ultimatelyprevailed in the administrative courts, his taxidriver’s license, which is critical to his livelihood, wasrevoked at several points in the interim before it wasrestored.

Proceedings Below: In May 2013, E1-Nahal filedthis suit in the U.S. District Court for the SouthernDistrict of New York alleging a deprivation of hisFourth Amendment rights pursuant to 42 U.S.C. §1983, among other claims, against Respondents DavidYassky, then-chairman of the Commission, MatthewDaus, a former chairman of the Commission, MichaelBloomberg, then-mayor of the City of New York, andthe City of New York.5 E1-Nahal alleged that thewarrantless use of mandatory GPS tracking by theCommission constituted an unlawful search under theFourth Amendment. Defendants moved to dismissthe case, and by order of the court the motion wasconverted to a motion for summary judgment. App.32a. The district court granted Defendants’ motion.App. 28a. The court held that the Commission’s

The district court had jurisdiction under 28 U.S.C. §§ 1331,1343(a)(4), and 1367.

10

collection of data regarding E1-Nahal through theinstallation and use of the GPS device did notconstitute a search for the purposes of the FourthAmendment because under Second Circuit precedentE1-Nahal had "no reasonable expectation of privacy inthe 0 data at issue." App. 35a; see Buliga v. New YorkCity Taxi and Limousine Comm’n, 324 Fed. Appx. 82(2d Cir. 2009). Regarding E1-Nahal’s claim that themandatory installation of the GPS device was a searchbecause it involved a physical intrusion for thepurpose of obtaining evidence for prosecution, thedistrict court rejected the claim because "taxi driversare aware of the system, the system is installedpursuant to regulations, and the taxicabs in which thesystem is installed are not truly private vehicles."App. 40a. The district court further held that if theGPS tracking of taxi drivers was a search, it wasreasonable as a matter of law, falling within the"special needs" exception to the warrant requirement.App. 41a-43a. Thus, the court dismissed E1-Nahal’sfederal constitutional claim. App. 45a.

E1-Nahal appealed, arguing that the district courterred by granting summary judgment on his FourthAmendment claim because pursuant to United Statesv. Jones, 132 S. Ct. 945 (2012), physical placement ofa GPS tracking device on a vehicle in order to obtaininformation is a search, so that E1-Nahal’s FourthAmendment rights were violated when theCommission mandated the physical placement oftracking devices in privately owned taxicabs. App.9a-10a. The Second Circuit affirmed the decision ofthe district court on a ground not raised by theRespondents on appeal or discussed in any of theparties’ briefs. Specifically, the Court held thatNahal lacked prudential standing to assert aproperty-based Fourth Amendment claim because he

11

did not possess the vehicle at the time the GPS devicewas initially installed. App. l la. In reaching itsconclusion, the Second Circuit interpreted Jones torequire that an individual challenging GPS trackinghave possessory interest at the time of installation.App. 17a. In a separate opinion, Judge Pooler,concurring in part and dissenting in part, joined themajority’s analysis of Jones but concluded thatRespondents did not properly address E1-Nahal’sproperty interest in the taxicab at the time of thetrespass at issue, and expressed that the case shouldhave been vacated and remanded for further factualdevelopment on this issue. App. 26a. Further, JudgePooler disagreed with the district court’sdetermination that the surreptitious nature of theintrusion was a critical factor in Jones that wouldpreclude the finding that the surveillance entailed asearch in this case. App. 20a-21a. Judge Poolerinstead concluded that the surveillance was asearch--"an unlicensed physical intrusion on aconstitutionally protected effect"--despite El’Nahal’sawareness of the GPS or the fact that the GPS wasinstalled pursuant to an administrative rule. App.21 a-24a.

REASONS FOR GRANTING THE WRIT

THE CIRCUITS ARE DMDED ON THEEFFECT OF UNITED STA TES v. JONES O NFOURTH AMENDMENT STANDING.

A. The circuits disagree on whether FourthAmendment standing under Jo~e~ is limitedto the victim of the initial trespass of placinga GPS device on a vehicle.

The standing principle in Fourth Amendmentcases requires that the individual seeking to challengethe legality of a search be the victim of the search, as

12

distinguished from one who claims prejudice onlythrough the use of evidence gathered during a searchinfringing on the Fourth Amendment interests ofsomeone else. Ra/zas v. IlIinoi~, 439 U.S. 128, 140(1978). Fourth Amendment "standing" is distinctfrom Article III standing and is not jurisdictional. Id.at 139. Instead standing to contest a search or seizureis "within the purview of substantive FourthAmendment law." Id. at 140.

Modern standing doctrine developed largelywithin the context of the "reasonable expectation ofprivacy" framework articulated by Justice Harlan inUnited States v. Katz. See 389 U.S. 347, 361 (1967).Under Katz, whether an individual has standing toobject to a warrantless search is based on whether thegovernment violated that individual’s reasonableexpectation of privacy. See Rakas, 439 U.S. at 143.Although standing does not hinge on a property rightin the invaded place, a person’s expectation of privacyis reasonable where it "has a source outside theFourth Amendment, either by reference to concepts ofreal or personal property law or to understandingsthat are recognized and permitted by society." Id. at143 n.12.

In Jones, the Court considered whether theattachment of a GPS tracking device to an individual’svehicle and its subsequent use of that device tomonitor the vehicle’s movements constituted a searchwithin the meaning of the Fourth Amendment. 132 S.Ct. at 947. In answering that question in theaffirmative, a majority of the Court applied atraditional property-based approach that pre-datedthe Katztest. Jones, 132 S. Ct. at 950.

In Jones, the government, without a validwarrant, had attached a GPS tracking device to a

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Jeep. 132 S. Ct. at 948. It used the device to monitorAntoine Jones’s movements for 28 days. Id. TheCourt held that Jones’s Fourth Amendment right--the right to be free from the government’s physicalintrusion on his property for the purpose of gatheringinformation--was violated by the government’sinstallation and use of the GPS tracking device. Id. at949. The Court declined to question Jones’s standingto challenge the installation of the device. Id. at 949n.2. Though Jones did not own the car--his wife did--he was the "exclusive driver" so "he at least had theproperty rights of a bailee." Id. Jones did not addressinstances where possessory interest in a vehiclechanges during the period of the governmentintrusion. Absent guidance from the Court, the circuitcourts have employed disparate approaches toaddress that issue. The circuits’ disagreement centerson whether Fourth Amendment standing is limited toindividuals with possessory interest in the trackedvehicle at the time of the installation of the trackingdevice.

In United States v. Gibson, the Eleventh Circuitheld otherwise. It held that an individual hasstanding to object to a search through GPS trackingwhenever he has a possessory interest in the vehiclebeing tracked at the time o£the search. United Statesv. Gibson, 708 F.3d 1256, 1277 (llth Cir. 2013). Thedefendant, James Gibson, had a bailee’s interest inthe vehicle at the time a GPS device was installed. Id.But Gibson had no such interest--he was neither thedriver nor the passenger~during the subsequentperiod of tracking. Id. The court held that Gibson hadstanding to challenge the installation and use of thetracking device while the vehicle was in hispossession, but not the use of the tracking device tolocate the vehicle when it was moving on public roads

14

while he was neither the driver nor a passenger. Id.Thus, the Eleventh Circuit found that an individualhas standing to object to GPS tracking by thegovernment whenever he has a possessory interest inthe tracked vehicle at the time of the search. Id. at1278. Though the court referred to Gibson’s "standingto challenge the installation," the court made it clearthat this by itself had no significance with regard towhether he could challenge the state’s tracking of thevehicle at a time when he no longer possessed it.

The Second Circuit reached its decision byreasoning from United States v. Hernandez, in whichthe Fifth Circuit held that a lawful borrower of avehicle at the time of its tracking had standing tochallenge the use of the tracking device even thoughhe had no possessory interest in the vehicle when thedevice was installed. 647 F.3d 216, 218 (5th Cir.2011). In Hernandez, law enforcement attached aGPS tracking device to a vehicle owned and in thepossession of Angel Hernandez. Id. Two days later,agents used the tracking device to locate the vehiclewhile defendant Jose Hernandez, who had borrowedthe vehicle with Angel’s consent, was in lawfulpossession. Id. In Hernandez, a pre-Jones decision,the Fifth Circuit concluded that neither theinstallation nor the monitoring of the GPS device wasa search. But the court correctly determined that Josehad an interest in the vehicle sufficient to conferstanding to challenge the use of the tracking device;.Id.

In addition to Gibson, other circuits, in decisionsfollowing Jones, have not foreclosed the notion thatthe use of GPS tracking may violate a FourthAmendment interest even when the individualtracked was not aggrieved by the initial installation.In United States v. Davis, the Tenth Circuit held that

15

the defendant Mark Davis lacked standing because he"did not own or regularly drive the car" to which lawenforcement attached a GPS device. 750 F.3d 1186,1190 (10th Cir. 2014). Davis, who was at most apassenger in the tracked vehicle, did not possess thecar either at the time of installation or during thesubsequent period when law enforcement monitoredthe movements of the car. Id. at 1188. When the courtnoted that Davis did not own or drive the car, it didnot specify whether this was in reference to the timethe device was installed or after, suggesting thatpossessory interest at either time could have beensufficient to confer standing. In United States v.Barraza-Maldonado, the Eighth Circuit assumedwithout deciding that the continued use of a GPStracking device after the car came into the defendant’spossession violated the defendant’s FourthAmendment rights as construed in Jones. 732 F.3d865, 869 (8th Cir. 2013) (but holding that the evidenceseized as a result of the monitoring was admissibleunder the good faith exception to the FourthAmendment exclusionary rule).

Under the Eleventh Circuit test, E1-Nahal wouldhave standing to challenge the use of the GPStracking device because it was used to track a vehiclehe leased and thus lawfully possessed. While theEleventh Circuit determines Fourth Amendmentstanding based on whether there was a possessoryinterest at the time of installation of the GPS trackingdevice or during the time of the tracking, the SecondCircuit’s standing determination is limited to only theformer inquiry.

In the Second Circuit, whether an individual hasstanding to challenge a search through GPS trackingunder Jones depends on whether that individual canestablish an adequate possessory interest at the time

16

of an alleged trespass or physical intrusion. App. 14a.The court reasoned that in Jones, Jones’s possessoryinterest in the vehicle at the time the governmentinstalled the tracking device was dispositive towhether Jones could challenge the GPS search. App.lla. The Second Circuit focused on the way the Courtdistinguished United States v. Knotts, 460 U.S. 276(1983) and United States v. Kate, 468 U.S. 705 (1984)in Jones. App. 12a-14a.

In Knotts and Kate, the government installedbeepers--battery operated radio transmitters thatemit periodic signals that can be picked up by a radioreceiver, Knotts, 460 U.S. at 277--into containers ofchemicals that the government suspected were usedto manufacture illegal drugs. Id. at 278-79; Kate, 468U.S. at 708-09. The government then tracked thecontainers. Id. In both cases, the governmentinstalled the beepers in the containers at issue beforethey came into possession of the defendants, and withthe consent of the then-owners of the containers,which defeated the defendants’ Fourth Amendmentclaims. Knotts, 460 U.S. at 278; Kate, 468 U.S. at 708.Jones, by contrast, possessed the vehicle when thegovernment trespassed and inserted the GPS device,putting him on a different footing than Knotts andKaro. Jones, 132 S. Ct. at 952.

Based on this reasoning, the Second Circuitconcluded that Jones requires that an individual mustown or possess the vehicle when a GPS device isinstalled to have standing to challenge tracking bythat device. App. 17a. (noting that "the [g]overnmentmay have trespassed or physically intruded onsomeone’s property does not necessarily entitlesomeone else who later acquires an interest in thatproperty to claim that the [g]overnment trespassed orphysically intruded on her property."). Because El-

17

Nahal did not produce evidence of a possessoryinterest in a taxicab when GPS tracking was installed,the Second Circuit determined he was precluded fromchallenging the later use of the device to gatherinformation about him. App. 18a.

1~. The Court’s guidance is needed to resolve theconflict on this exceedingly important issue.

Standing under Jones should not be limited toindividuals with possessory interest at the time of theinitial trespass. First, the use of such a standardsuggests that the government’s intrusion only occursat the moment of installation. As the Second Circuitpointed out, the Court in Jones instructed thatpursuant to the property-based approach, a FourthAmendment search "undoubtedly occur[s]" when thegovernment acts to "obtain~ information by physicallyintruding on a constitutionally protected area." App.12a (quoting Jones, 132 S. Ct. at 950 n.3). Certainly,the intrusion is not limited to the instant thegovernment commits a trespass. Practicallyspeaking, the physical intrusion is ongoing as long asthe device is attached to the vehicle--the governmentis engaged in a continuing trespass. See, e.g., 75 Am.Jur. 2d Trespass § 19 (2016) ("A continuing trespassrequires an ongoing invasion of possession ofproperty, and exists for the entire time during whichone wrongfully remains on the property.").

Further, contrary to the Second Circuit’sassertion, the way the Court distinguished K~otts andKaro in Jones does not establish that only victims ofan initial trespass have a Fourth Amendment rightwhere the government employs GPS tracking. SeeJones, 132 S. Ct. at 952; App. 12a-13a. Although theconsent to implant the beepers may have beensufficient to mitigate Fourth Amendment concerns in

18

Knotts and Ksro, the same analysis should not applyto GPS tracking conducted on a broad scale. TheCourt in Knotts specifically stated that it was notconsidering "dragnet type" searches--high volumesearches often conducted without articulablesuspicion--but beeper technology with limitedpotential for widespread abuse. 460 U.S. at 284(noting that "if such dragnet type law enforcementpractices ... should eventually occur, there will beenough time then to determine whether differentconstitutional principles may be applicable"). Asdiscussed infra section II.2., GPS technology isfundamentally different from the beeper devices inKnotts and Karo. GPS tracking devices can producea virtually unlimited stream of location data that canbe transmitted remotely and stored indefinitely withminimal manpower once the device is installed. Thus,in the context of GPS tracking, which can be employedover very long periods, it is problematic to assumethat one individual’s initial "consent" to attaching aGPS renders subsequent users unable to challengeany later use of that device under a property-basedtheory. Additionally, it is worth noting that no onetruly consented to the installation of the device in thiscase; rather its installation was required by theregulatory fiat.

In Jones, the Court had no occasion to consider theeffect on standing where possession of a trackedvehicle changed during the monitoring. But if a statewere to require monitoring on a wholesale basis, aswith the Commission program at issue here, changesin possession would be likely, even inevitable. TheSecond Circuit’s exclusive focus on the point ofinstallation produces practically unfair results. Here,a taxicab driver who happened to own or lease avehicle at the time when New York mandated GPS

19

installation (either when the regulation took effect orwhen a driver purchased or leased a new vehicle)would have standing. But a driver who rented orleased a vehicle with the devices already installedwould lack standing--even though he could betracked in exactly the same way and for the samereasons as an owner-driver. Owners could raise aFourth Amendment claim, but renters could not. TheSecond Circuit rule disregards the fact that E1-Nahalhad no option to remove or disable the tracking device.See JA103-104. Such a device was, by law, physicallyattached to any and every licensed taxicab he couldhave used to do his job.

More broadly, the Second Circuit’s interpretationof Jo~es would allow the government to order carmanufacturers to install tracking devices in theircars, which the government could later use to trackthe movements of the cars’ drivers. A state or localgovernment could also demand access to theinformation stored by GPS devices pre-installed invehicles that drivers purchase---the drivers expectingthat the GPS devices will be used only for the owners’own benefit, such as to aid in navigation. Thesedrivers would lack standing to challenge thegovernment’s command because none would haveowned the vehicles at the time the tracking deviceswere installed by the manufacturers.

Finally, the Court in Jones provided no indicationthat use of the common-law trespassory test wouldrequire any significant shift in standing doctrine. Atits core, the Fourth Amendment is concerned withprivacy interests. See K~tz, 389 U.S. at 351 ("[T]heFourth Amendment protects people, not places.").Using the property-based approach should not alterthis focus, and whether an individual has standing toassert a Fourth Amendment violation should remain

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concerned with whose privacy interest is beinginfringed on by the government.

In the context of vehicle searches, whether anindividual has Fourth Amendment standing shouldnot depend on whether the individual has a lawfulpossessory interest in the vehicle when the search isunder way. See Rakas, 439 U.S. at 143 ("capacity toclaim the protection of the Fourth Amendmentdepends not upon a property right in the invadedplace but upon whether the person who claims theprotection of the Amendment has a legitimateexpectation of privacy in the invaded place"). Courtsconsistently find that interests less than ownershipare sufficient to trigger a reasonable expectation, ofprivacy. See, e.g., United States v. Pena, 961 F.2d333, 337 (2d Cir. 1992) ("It is not the law, however,that only the owner of a vehicle may have a FourthAmendment privacy interest... Rather, the borrowerof an automobile can possess such an interest."); seealso United States v. Lee, 898 F.2d 1034, 1038 (5thCir. 1990); United States v. Baker, 221 F.3d 438, 442(3d Cir. 2000), as amended (Sept. 21, 2000) (collectingcases from other circuits).

Here, E1-Nahal leased his taxi from a fleet.Although he did not possess the taxi he would laterlease when the GPS device was initially installed, hesurely had lawful possession at the time thegovernment used the device to track his movementsin order to gain evidence it would use in hisprosecution. Thus, E1-Nahal had a privacy interest atthe critical time---the time of the GPS tracking. TheEleventh Circuit view properly protects this interestby considering the totality of the government’s use ofGPS tracking, see Gibson, 708 F.3d at 1277, while theSecond Circuit’s focus only on the point of installationarbitrarily excludes a potentially large class of

21

victims. Because E1-Nahal had lawful possession ofthe taxicab during a period of continuing trespass, theJones trespass-based framework should entitle himand others in similar circumstances to a FourthAmendment right. The Court’s guidance is needed toclarify the standing requirements under Jone~.

II. THIS CASE PRESENTS A QUESTION OFEXCEPTIONAL IMPORTANCE REGARDINGMINING OF GPS DATA.

Regardless of physical trespass, there is nodispute that, in this case, the Commission mined GPStracking data of E1-Nahal for the purpose of rootingout purportedly criminal activity, and then used theinformation to attempt to discipline him--denying hisability to participate in his trade in the process. Forthat reason as well, the Court should grant a writ ofcertiorari to resolve whether the government maymine a person’s GPS location data without a warrant,regardless of physical trespass.

While the Court decided Jones based on thefundamental Fourth Amendment right againstgovernment trespass for the purpose of obtaininginformation, the Court noted that this property-basedapproach did not foreclose the use of the "reasonableexpectation of privacy" test when considering GPStracking in other circumstances. Jones, 132 S. Ct. at950. The Court clarified that it was not makingtrespass "the exclusive test," but was preserving theKstz analysis for application in cases of transmissionof electronic signals that did not require the physicaltrespass present in Jones. Yd. at 953. Further, theCourt noted that "[i]t may be that achieving the sameresult," continuous remote surveillance, "throughelectronic means, without an accompanying trespass,is an unconstitutional invasion of privacy," even if the

22

Court did not have occasion to reach that question inJones. Id. at 954.

The concurring opinions in Jones discussed thepossible problems posed by reverting to a property-based approach to the Fourth Amendment. Thoseopinions posited that applying the Katz analysis couldpotentially avoid Fourth Amendment questionscreated by GPS tracking that does not require atrespass. While recognizing that the "trespassory testapplied in the majority’s opinion reflects anirreducible constitutional minimum," JusticeSotomayor, in her concurrence, also recognized thatthe transmission of electronic signals without such atrespass would remain subject to the Katz analysisand that advances ir~ technology would affect thesocietal expectations of privacy. Id. at 955(Sotomayor, J. concurring). While previewingpotential issues that have attended changes in GPStechnology, such as the low cost and high availabilityof GPS technology and the necessary nature ofoffering data to third parties, Justice Sotomayorconcurred, recognized the inevitability of the Courtbeing presented with the question of whether there isa reasonable expectation of privacy against long-termuse of GPS tracking even without a physical trespass.~rd. at 956-57.

Justice Alito’s concurring opinion raised otherconcerns about applying the property-based test ihnGPS cases and asserted that the proper test was"whether [an individual’s] reasonable expectations ofprivacy were violated by the long-term monitoring ofthe movements of the vehicle he drove." Id. at 958(Alito, J., concurring). Justice Alito pointed to theevolution of the Court’s Fourth Amendmentjurisprudence away from the property-basedapproach, highlighting that the Court has "decoupled

23

violation of a person’s Fourth Amendment rights fromtrespassory violation of his property." Id. at 960(quoting Kyl]o, 533 U.S. at 32 (2001)). Pointing outthat the societal expectation has long been that thegovernment will not "secretly monitor and catalogueevery single movement of an individual’s car for a verylong period," Justice Alito’s concurring opinionunderscored the importance of applying the Katzanalysis to GPS tracking. Id. at 964.

Thus, the majority opinion in Jones left open thequestion of whether warrantless GPS tracking of anindividual’s vehicle constitutes a violation of theindividual’s Fourth Amendment rights if there was noinitial physical trespass. However, the majority andthe concurrences all recognized that the question waslikely on the horizon and would need to be answered.That day has arrived. As noted by JusticeSotomayor’s concurrence, the majority opinion inJones offers little guidance "[i]n cases of electronic orother novel modes of surveillance that do not dependupon physical invasion on property." Id. at 955(Sotomayor, J., concurring). Here, regardless ofwhether there was a physical invasion that E1-Nahalhas standing to assert, E1-Nahal certainly wastracked, and this case raises the question of thenecessary limits on the government’s power to engagein such tracking without a warrant.

GPS-equipped devices are ubiquitous. See LeeRainie, Cell Phone Ownership Hits 91% of Adults,PEW RESEARCH CENTER (June 6, 2013).6 They are ableto provide massive amounts of data regarding day-to-day activities of users. See Neema Singh Guliani,

6 Available at: http://www.pewresearch.org/fact’tank/2013/06/06/cell-phone-ownership-hits-91-of-adults/ (noting that morethan 90% of American adults have a cellphone).

24

Written Testimony of Neema Singh Guliani on behalfof the American Civil Liberties Union Before the ~S.House of Representatives Committee on Oversightand Government Reform, Hearing on "Geo]ocationTechnology And Privacy, American Civil LibertiesUnion (Mar. 2, 2016), 2-3.7 Many ears now come withbuilt-in GPS devices to aid in everyday navigation.See generally Derek S. Witte, Bleeding Data in a Poolof Sharks: The Anathema of Privacy in a World ofDigital Sharing and Electronic Discovery, 64 S. C. L.Rev. 717 (2013) (detailing the common nature of GPStechnology built into cars and the information thatcan be gleaned therefrom). Cell phones are equippedwith GPS capability in order to allow users to findeverything from directions to the nearest coffee shopto the location of nearby friends, as well as to allowpublic safety officers to identify the location of 911callers. See Guliani supra. Other drivers who do nothave GPS pre-installed may use detachable in-carnavigation systems to guide them from one place tothe next. See, e.g., Products, Automotive, GARMIN.8Health buffs use personal-use GPS devices on theirperson to measure the distance and location ofphysical activity. See, e.g., Surge, Fitbit.9 Whether

7 Available at: https:llwww.aclu.orgllegal-documentlaclu-

testimony-house-oversight-and-Government-reform-committees-hearing-geolocation.

8 Available at: https://buy.garmin.com/en-US/US/cOnTheRoad-

cAutomotive-pl.html (last visited Dec. 17, 2016) (detailingvarious GPS devices for use in vehicles).

9 Available at https://www.fitbit.com/surge (last visited Dec. 17,2016) (detailing the Fitbit Surge, "the #1 selling GPS watch inthe U.S.," which utilizes GPS tracking to allow users to "[s]eedistance, pace, split times and elevation claimed [and] reviewroutes").

25

the technology is in your pocket, on your wrist, or inyour car, GPS technology is everywhere.

While these GPS devices may be helpful andconvenient, the data from the devices may also beused to create a full portrait of a person’s life, habits,and associations by providing an up-to-date account ofan individual’s location for the entire time tracking isconducted. The data gathered from these devices canoffer a "precise, comprehensive record" of anindividual’s comings and goings that can reflect alarger picture of "familiar, political, professional,religious, and sexual associations." Jones, 132 S. Ct.at 955 (Sotomayor, J., concurring). What one mayhave considered a private trip to "the psychiatrist, theplastic surgeon, the abortion clinic . the unionmeeting, the mosque" is suddenly readily accessibleand verifiable through the use of GPS data. See, e.g.,Peop]e v. Weave~r, 12 N.Y.3d 433, 441-442 (2009)(holding placement of a GPS tracking device, andsubsequent monitoring of car’s location, constituted asearch requiring a warrant under the Constitution ofthe State of New York). These patterns of data arecapable of creating a context for understanding aperson’s actions at large and creating patterns topredict what the person may do in the future. See,e.g., In re United States, 872 F.2d 472, 475 (D.C. Cir.1989) ("Thousands of bits and pieces of seeminglyinnocuous information can be analyzed and fitted intoplace to reveal with startling clarity how the unseenwhole must operate.").

It is also important to note that the advances inGPS technology allow real-time tracking that waspreviously unavailable with earlier iterations oftechnology, such as the beepers addressed in Knotts,460 U.S. 276 (1983), and Karo, 468 U.S. 705 (1984).While "GPS devices permit significantly more

26

surveillance than beepers," through "monitoring withmuch greater detail, less cost, less oversight, and overa longer period of time," Orin S. Kerr, An Equilibrium-Adjustment Theory o£ the Fourth Amendment, 125Harv. L. Rev. 476, 500 (2011), beepers are merelyradio transmitters that are able to transmit signals toa receiver if it is sufficiently nearby. Knotts, 460 U.S.at 277. The two types of technology are worlds apartin capabilities, as the beeper only allows somewhatenhanced surveillance of what a person wouldnormally be capable of witnessing first hand, Knotts,460 U.S. at 277, while GPS tracking is capable ofmonitoring in a way that far outstrips what oneperson, or several persons, would be able toaccomplish for extended periods of time. See Kerr,supra, at 500.

The advances in GPS tracking technology allowthe government to collect more data of a highlydetailed quality relatively cheaply and with minimaleffort. The ability to access preexisting GPS devicesremoves a large cost to the government because noadditional equipment or surveillance teams arerequired. GPS tracking does not require any visualsurveillance and may be monitored remotely andcontinuously over an extended period of time, asreceivers automatically recalculate their position.Additionally, GPS devices can give the governmentinformation that would formerly be protected, such aslocation information within a home, because the GPSdevice emits the same signal and data regardless ofwhere it is located. See Kerr, supra, at 499. This sortof data harvesting also raises the potential foraggregation of data on a mass scale for an extendedperiod of time, as the "[g]overnment can store suchrecords and efficiently mine them for information

27

years into the future." See United Ststos v. Pineds-Moreno, 617 F.3d 1120, 1124 (9th Cir. 2010).

This information is already being stored by carmanufacturers, cell phone service providers, and themyriad of other service providers that rely on GPStracking in order for their products to function.Potentially, the government could surveil targets by"enlisting factory or owner-installed vehicle trackingdevices or GPS-enabled smartphones." See Jones, 132S. Ct. at 955 (Sotomayor, J., concurring). Large scaletracking on a widespread basis would thus be possibleon demand by simply accessing the data alreadycollected by service providers. The Court haspreviously cautioned against high volume searchesconducted without any articulable suspicion, or"dragnet" searches. See, e.g., FIorida v. Bostick, 501U.S. 429, 441 (1991); Cupp v. Murphy, 412 U.S. 291,294 (1973) (discussing police "dragnet" procedureswithout probable cause in Davis v. Mississippi, 394U.S. 721 (1969)); Bergerv. New York, 388 U.S. 41, 65(1967). This is not an amorphous fear about thefuture, as demonstrated by the facts of this case. TheGPS tracking in this case was conducted over all NewYork city medallion taxi drivers in a "dragnet" fashionand raises the broader concerns about masssuspicionless monitoring that the Court mentioned inK~otts. See 460 U.S. at 283-84.

As noted by Justice Sotomayor’s concurrence inJo~es, its lower cost and surreptitious nature allowsGPS tracking to "evade[ ] the ordinary checks thatconstrain abusive law enforcement practices: ’limitedpolice resources and community hostility."’ 132 S. Ct.at 956 (Sotomayor, J., concurring) (quoting Illinois v.Lid~ter, 540 U.S. 419, 426 (2004)). The Court hasrecognized the importance of placing outsidesafeguards on law enforcement in order to ensure that

28

technological progress will not be abused whileadvancing the government’s interests at the expenseof citizens’ rights. See, e.g., Coo]Jdge v. NewHamps_bire, 403 U.S. 443, 450 (1971) ("[P]rosecutorsand policemen simply cannot be asked to maintain therequisite neutrality with regard to their owninvestigations--the ’competitive enterprise that mustrightly engage their single-minded attention."’)(quoting Ms~cusi v. DeForte, 392 U.S. 364, 371(1968)). The potential for easily accessible, vastamounts of intrusive data that may be aggregatedlong-term by the government creates impendingconstitutional problems that could be avoided bychecking the government’s power to access thisinformation at the outset through a mandatorywarrant procedure prior to accessing a target’s GPSdata. See, e.g., Jo~es, 132 S. Ct. at 956 ("IT]he[g]overnment’s unrestrained power to assemble datathat reveal private aspects of identity is susceptible toabuse.") (Sotomayor, J., concurring)). If a warrant isnot required, it leaves open the possibility that round-the-clock monitoring of an individual--the data fromwhich may be compiled into a permanent record---maybe done at any time based on the unfettered discretionof the state. What is more, because of the widespreadnature of this technology, the government couldsurveil a virtually unlimited number of people for anindefinite amount of time.

Here, the City of New York did exactly what theCourt left for another day in Maryland v. /~g---itasserted a justifiable and limited use of the gathereddata, and then secretly expanded its use of thegathered data far beyond the scope of what it hadoriginally promised. 133 S. Ct. 1958, 1979 (2013). TheCourt in K~g found solace in the fact that DNA testsof arrestees were, by law, only to be analyzed for the

29

purpose of generating a match that could be testedagainst future samples from crime scenes. Id. Andthe Court acknowledged that if the governmentanalyzed the samples for reasons outside the scope ofcreating the match, there would be additional privacyconcerns raised. Id. Here, the government assertedthat it was collecting the GI~S information forresearch, policy, and customer service purposes, butthen used the information to prosecute taxi drivers foralleged offenses. The warrant requirement is themost effective safeguard for preventing governmentintrusion on privacy to conduct criminalinvestigations into data purportedly obtained forbenign uses.

It also seems that most people have anexpectation that the government will not access theirGPS data before obtaining a warrant.California,Indiana, Illinois, Maine, Maryland,Minnesota,Montana, New Hampshire, Utah, Virginia,Washington, and Wisconsin have all passed statutesrequiring warrants for this type of information.10Additionally, six of those states have also adoptedlaws requiring that law enforcement obtain warrantsbefore obtaining historical cell site information. ~ ~

It is the Fourth Amendment’s "goal to curbarbitrary exercises of police power ... and prevent ’a

10 Cal. Penal Code § 1546; 16 Maine Rev. Stat. § 648; Md. Code,

Criminal Procedure 1-203.1(b)(1); Minn. Stat. 3§ 626A.28(3)(d),626A.42(1)(d); Mont. Code § 46-5-110(1)(a); N.H. Stat. § 644-A;Va. Code § 19.2-56.2; Wash. Rev. Code § 9.73.260.725; Ill. Comp.Stat. 168/10; Ind. Code § 35-33-5-12; Wis. Stat. § 968.373(2);Utah Code § 77-23c’102.

11 Cal. Penal Code § 1546; 16 Maine Rev. Stat. § 648; Minn. Star.

§§ 626A.28(3)(d), 626A.42(1)(d); Mont. Code § 46-5-110(1)(a);N.H. Stat. § 644-A; Utah Code § 77-23c-102.

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too permeating police surveillance."’ Jones, 132 S. Ct.at 956 (Sotomayor, J., concurring) (quoting UnitedStates v. Di Re, 332 US 581, 595 (1948)). Thecombination of the advanced nature of GPStechnology and potential for abuse by the governmentcreates an opportunity for such arbitrary exercises ofpolice power. The knowledge that the government iscapable of tracking one’s comings and goings fromsensitive places such as political meetings or religiousgatherings may chill the desire of people to associatewith others. Handing the government the ability toaccess the information at "its unfettered discretion ...may ’alter the relationship between citizen andgovernment in a way that is inimical to democraticsociety."’ Id. (quoting United States v. Cuevas-Perez,640 F.3d 272, 285 (7th Cir. 2011) (Flaum, J.,concurring)). Furthermore, if people stop using GPS-equipped devices because of the fear that the dataproduced may be used without a warrant, this maydiscourage technological pioneers from developingfuture technologies, thereby slowing scientificprogress. The risks posed by warrantless GPStracking are a danger to the constitutional freedoInsintegral to American society and must be limited byjudicial oversight.

As aptly discussed by Justice Brandeis in hisdissent in Olmstead v. United States, "[c]lausesguaranteeing to the individual protection againstspecific abuses of power, must have a ... capacity ofadaptation to a changing world." 277 U.S. 438, 472(1928). If the Fourth Amendment is to retainlegitimacy in its ability to protect Americans againstunlawful intrusions by the government, the law needsto reflect the potential for abuse of GPS technologyand appropriately guard against it.

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CONCLUSIONFor the foregoing reasons, the petition should be

granted, the judgment below should be reversed, andthe case should be remanded for further proceedings.

Respectfully submitted,

DANIEL L. ACKMANLAW OFFICE OFDANIEL L. ACKMAN

-and-Participating Attorney for

The Rutherford Institute222 Broadway, 19th FloorNew York, NY 10038

TILLMAN J. BRECKENRIDGE*BAILEY & GLASSER LLP1054 31st St., NW, Suite 230Washington, DC 20007Telephone: 202-463-2101Facsimile: 202-463-2103tbreckenridge@baileyglasser.com

PATRICIA E. ROBERTSWILLIAM & MARY LAWSCHOOL APPELLATE ANDSUPREME COURT CLINICP.O. Box 8795Williamsburg, VA 23187Telephone: 757-221-3821

*Counsel of Record Counsel £or Petltio~Ter