WI: “GPS reasonable under Fourth Amendment, but we don’t like it”

Wisconsin (five days before Weaver) finds GPS tracking reasonable under the Fourth Amendment, but it is troubled by it and urges the legislature to limit it. State v. Sveum, 2009 WI App 81, 319 Wis. 2d 498, 769 N.W.2d 53 (2009):

P19 Accordingly, we conclude that no Fourth Amendment search or seizure occurs when police attach a GPS device to the outside of a vehicle while it is in a place accessible to the public and then use that device to track the vehicle while it is in public view. Because this case does not involve tracking information on the movement of Sveum’s car within a place protected by the Fourth Amendment, it follows that the circuit court correctly rejected Sveum’s Fourth Amendment suppression argument.

P20 We are more than a little troubled by the conclusion that no Fourth Amendment search or seizure occurs when police use a GPS or similar device as they have here. So far as we can tell, existing law does not limit the government’s use of tracking devices to investigations of legitimate criminal suspects. If there is no Fourth Amendment search or seizure, police are seemingly free to secretly track anyone’s public movements with a GPS device. As the Seventh Circuit observed:

The new technologies enable, as the old (because of expense) do not, wholesale surveillance. One can imagine the police affixing GPS tracking devices to thousands of cars at random, recovering the devices, and using digital search techniques to identify suspicious driving patterns. One can even imagine a law requiring all new cars to come equipped with the device so that the government can keep track of all vehicular movement in the United States….

….

Technological progress poses a threat to privacy by enabling an extent of surveillance that in earlier times would have been prohibitively expensive.

Garcia, 474 F.3d at 998.

P21 We are also concerned about the private use of GPS surveillance devices. As the Seventh Circuit and a recent New York Times article indicate, GPS technology is available at low cost to the general public. See Garcia, 474 F.3d at 995; David Pogue, Peekaboo, Zoombak Sees You, N.Y. TIMES, Apr. 23, 2009, at B1, B8. Although there are obviously legitimate private uses, such as a trucking company monitoring the location of its trucks, there are also many private uses that most reasonable people would agree should be prohibited.

P22 Consequently, we urge the legislature to explore imposing limitations on the use of GPS and similar devices by both government and private actors. Such limitations would appear to be consistent with limitations the legislature has placed on electronic intercepts of communications. See Wisconsin’s Electronic Surveillance Control Law, WIS. STAT. §§ 968.27-.33 (2007-08).