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Arellano University School of Law

Taft Ave., cor. Menlo St., Pasay City

GPS TRACKING: AN
INVASION OF PRIVACY

A Research Paper in partial fulfilment of the


requirement in Technology and the Law

Submitted to:
Atty. Romulo De Grano, Jr.

Submitted by:
De Guzman, Roxanne Trixie D.
2012-0027

May 21, 2015


TABLE OF CONTENTS

Introduction ………………………………………………………………………… 3

I. GPS Technology and Legislation …………………………………….… 4-5

A. What is a GPS?
B. How does the GPS system work?
C. How GPS Technology is used to track an individual?

Cellphones ………………………………….………………….. 4
Vehicles ……………………………………….…………………. 5

II. The Social Impact of GPS Technology ………………………………. 6-7

A. Business …………………………………………………….……….… 6
B. Society ……………………………………………………….……….… 6
C. Law ……………………………………………….……………………… 7

III. Overview on the current Case Law on this issue ………………… 7-8

IV. How GPS tracking threatens the privacy of an individual ….…. 9

V. Will the Philippine Courts follow US v. Jones? ……………………. 10

VI. Conclusion …………………………………………………………………….. 11

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INTRODUCTION

Ten years ago the world was adjusting to the fact that people
could access information in the privacy of their own home from the
World Wide Web. Today, technology has taken society to another
plateau; people can be tracked wherever they go from their cell
phone or car. These devices work in real time and can provide an
interested party with a wealth of information about the private daily
activities of every person. Just as the introduction of the Internet
created new legal and policy issues, GPS tracking implicates a new
set of privacy concerns. It is used in our vehicles and cell phones to
help us get around – especially handy when we are lost, or looking
for an address. Like cell phones and email, the technology has
become a part of our lives that we probably wouldn't even know how
to live without. The advent of Global Positioning System tracking
devices has been a boon to law enforcement, making it easier and
safer, for example, for agents to link drug dealers to kingpins.

This research takes the reader through the current technology


and law on this issue. It will first offer background information on
how GPS technology works and the different ways GPS is being used
in monitoring the physical location of an individual. Next, this
research assesses how GPS technology affects business, society and
the law. The latter half of this research gives an overview on the
current case law on this issue and how GPS technology threatens the
privacy of an individual. And finally, identifies how will the Philippine
Court rule on the use of GPS tracking information obtained by law
enforcement agencies as evidence against the subscribers.

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I. GPS Technology and Legislation

A. What is a “GPS?”

A Global Positioning System (GPS) is a navigation and precise


positioning tool. Commercially, GPS is used as a navigation and
positioning tool in airplanes, boats, cars, and for almost all outdoor
recreational activities.1

B. How does the GPS system work?

The Global Positioning System (GPS) came into existence in the


early 1970’s. The Department of Defense first launched a GPS
satellite in 1978 and achieved a full constellation of twenty-four (24)
satellites in 1994, which the U.S. government has named Navstar.
Today, GPS is used for both civil and military purpose and is
controlled by a joint civilian/military executive board of the U.S.
government. The system is maintained by the U.S. Air Force on
behalf of all users.

This series of satellites were placed in the geosynchronous orbit


- meaning they orbit at the exact same speed as the Earth rotates, so
they are always over the same spot. The GPS satellites orbit the
earth twice a day in regular patterns transmitting information back to
Earth. These satellites communicate with each other, and ground
locations to provide location information to any receiver, as long as
that receiver is connected to the network. The connection is
automatic - it’s not like trying to configure your wireless router with a
securer home-network mind you. Furthermore, GPS is not affected by
any weather conditions.

C. How GPS technology is use to track an individual?

• Cell Phones
GPS-equipped cell phones are now being used for a variety of
purposes, from worried parents tracking the whereabouts of their
children to suspicious employers monitoring the location of their
workers. Mobile Phone Tracker applications are being used to track
mobile phones. Using this kind of application, variety of tracking
systems that are ideal for personal tracking, child tracking, tracking
criminal offenders, elderly tracking or business use like vehicle
tracking, fleet management, and truck tracking which will not only
help navigate but will also allow others to track your location.

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1
GPS Overview, Gps.gov (April 12, 2012), http://www.gps.gov/systems/gps/
(last visited Works Cited: June 6, 2012).

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Many people are worried about the loss of privacy that may
come with this technology. Issues that haven't yet been solved
include whether or not the government should have access to this
network.2 Should law enforcement agencies or the military be
allowed to track people by their cellular phones, or should they be
forced to get a court order like they currently do with wiretaps? This
is a question that has been argued about in court and has not yet
been answered. These privacy issues need to be solved soon since
GPS in cellular phones has already become very popular in our lives.3

• Vehicles
GPS is utilized for a variety of applications in our personal cars.
The most obvious is the navigation system. GPS system can only
guide you to your destination if you have the coordinates for where
you're going. Point a and point b are not connected in a straight line,
so you must follow the road system to reach your destination.4 This
system is usually used in conjunction with a computer in the vehicle.
The computer has road maps stored in its system as well as GPS
coordinates. The user simply tells the computer where he or she
would like to go. The computer uses the GPS to determine the users
current location and the coordinates of the destination. It will then
pull up the appropriate maps and highlight the correct route. Newer
systems even give the user turn by turn audio directions. GPS is very
useful in emergency situations.5 If your car is stolen, the GPS receiver
that is mounted on your vehicle can be used to tell its location and
aid law enforcement in its recovery. GPS can be used to locate your
vehicle.

However, privacy concerns obviously arise naturally when


vehicles are being monitored, but they become even greater when
police officers use the technology for anything other than its stated
purpose.

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2
Richard B. Langley, In Simple Terms, How Does GPS Work?, available at http://
gge.unb.ca/Resources/HowDoesGPSWork.html (last modified Mar. 27, 2003).
3
Tracking Employees Using Technology, Neslon Adrian Blish and Sharon P. Stiller.
ACC Docket (July/August 2009).
4
Aaron Reneger, Satellite Tracking and The Right to Privacy, 53 Hastings L.J. 549
(Jan. 2002).
5
Daniel R. Sovocool, GPS Update: The FCC Sets the Table for GPS Location
Technology in Wireless Phones, available at http://www.thelenreid.com/articles/
article/art_57_idx.htm (last visited July 19, 2004).

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II. The Social Impact of GPS Technology

A. Business

GPS is used for business purposes for many different reasons.


It has helped our business world become more successful. Many GPS
products are being used by businesses and government agencies to
track their vehicle locations using wireless communications. Some
GPS receivers have been integrated into mobile radios, cellular
phones and mobile data terminals to meet the needs of vehicle fleet
managers. Many pilots are turning to GPS as a supplemental
navigation aid for their aircraft. At sea, GPS receivers are used on
recreational and commercial vessels to provide real-time latitude,
longitude, time, course and speed information, and assist with coast-
line and harbor navigation. Surveying and mapping consist primarily
of the collection and processing of position information and usually
requires specialized GPS equipment.6 In the surveying market,
applications include constructionand engineering surveying, route
surveying (roads, pipelines, cable and utility lines) and geodetic
research. Data can be collected for evaluation later in the office, or
used real-time, in the field. Mapping applications use large amounts
of position data in the development of Geographic Information
Systems (GIS) databases, and natural resource mapping. GPS has
greatly affected our business lives.

B. Society

GPS has made a huge impact in our society. It has changed the
way people communicate and live. GPS has made our environment a
more safer and easier place to live. GPS is being used to help parents
find and keep track of their children and is being installed as a
location device in cars and in cell phones to assist people in mapping
and directions. GPS technology can be used to locate and keep track
of dangerous criminals, helping to guard against escaped or missing
dangerous offenders. GPS technology in your cell phone or car can
make it easier to call for help since you can help emergency teams
and rescuers know exactly where you are, even if your position
changes between the time you call and the time help arrives. GPS
devices on pet collars can help you track pets if they are stolen or
lost. These are just some of the main things that GPS has added to
our society and everyday lives.

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6
Richard B. Langley, In Simple Terms, How Does GPS Work?, available at http://
gge.unb.ca/Resources/HowDoesGPSWork.html (last modified Mar. 27, 2003).

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C. Law

While there are many substantial benefits to the use of GPS


technology, some have voiced concerns. Many of these concerns
arise from the fact that law enforcements act of putting a Global
Positioning System (GPS) tracking device to a vehicle without the
knowledge of the owner and using that device to monitor the
vehicle’s movements constitute an unreasonable search under the
Fourth Amendment. Some have argued that the warrantless use of
GPS technology has the potential of interfering with individual
privacy.

Likewise, the Philippine Constitution has a similar provision


under Article III, Section 2 of the Bill of Rights.7 With the prevalence
of GPS-enabled smartphones and tablet computers in the Philippines,
legal scholars assert that a warrant ensures that the police have
probable cause to believe that criminal activity is taking place or is
imminent, thus preventing unwarranted intrusion into a person’s
freedom and private life. Others contend that GPS tracking is
analogous to law enforcement conducting surveillance with its own
eyes or with surveillance cameras or radio transmitting beepers.
Therefore, some courts and legal scholars believe a warrant is
unnecessary.

III. Overview on the current case law on this issue

In Jones, the US Court deemed inadmissible the 2,000-page


worth of tracking data secured by law enforcers to prove that the
accused conspired in the distribution of 5 kilograms of cocaine and 50
grams of cocaine base. Government agents were able to secure a 10-
day warrant from a judge to put a GPS device onto the Jeep of the
accused but they installed the tracker on the 11th day after the lapse
of the effectivity of the warrant.8

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The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for
any purpose shall be inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the
persons or things to be seized.
8
565 U. S. ____, 23 January 2012.

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The US Court said that the Fourth Amendment protects the
“right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures.”9 The US
Court found that the act of the government in attaching the GPS
device on the vehicle was a physical intrusion on an “effect” which is
the Jeep, and that its purpose of obtaining information from the
device constituted a “search.”10

Will the Philippine Court follow the ruling in Jones if a similar


issue was raised before it?

The Philippine Court, in the case of Morfe vs. Mutuc11 involving


the submission of statements of assets and liabilities by public
officials, adopted the “zones of privacy” doctrine in dealing with
issues of intrusions into personal space, following the
pronouncements of the US Court in Griswold v. Connecticut.12 At the
turn of the new millennium, the Court continued this doctrine with
Marquez vs. Desierto,13 which concerned secrecy of bank deposits.

In 2006, the Philippine Tribunal denied the plea of privacy of


corporate officers invited to testify at a Senate hearing and held that,
while zones of privacy are recognized and protected by law, still
courts “must determine whether a person has exhibited a reasonable
expectation of privacy and, if so, whether that expectation has been
violated by unreasonable government intrusion.”14

Last October 2011, in deciding the case of a public employee’s


right to privacy to his personal files in a government-issued computer,
the Philippine Court held that there is no reasonable expectation of
privacy because of the existence of a computer-use policy by the
government agency where he worked.

While the Philippine Court upheld the conviction of a “drug


mule” in People vs. Mariacos,15 a warrantless search of a moving
vehicle is still an exception to the Bill of Rights protection against
unreasonable searches, even though the inherent mobility reduces
expectation of privacy especially when using public roads.

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9
Location Privacy Protection Act of 2001, S. 1164, 107th Cong. (1999).
10
Common-law trespassory test.
11
G.R. No. L-20387, January 31, 1968.
12
381 U. S. 479, 484 (1965).
13
G.R. No. 135882, June 27, 2001.
14
PCGG vs. Richard Gordon, G.R. No. 174318, October 17, 2006.
15
G.R. No. 188611, June 16, 2010.

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Considering that Article III, Section 2 of the Bill of Rights was
taken from the 1935 Philippine Constitution, which in turn was
derived from the Fourth Amendment of the United States
Constitution, the Philippine Court has always looked into the
jurisprudential doctrines laid down by the US Court for guidance.

IV. How GPS tracking threatens the privacy of an individual

The case, U.S. v. Jones,16 presents the questions of (1) whether


law enforcement needs a warrant before planting a GPS tracking
device on a person's car, and (2) whether the government violated
the privacy rights of an individual by attaching the GPS tracking
device to a person’s car without a valid warrant and without his
consent. The answer to this questions are important in its own right,
but the case is likely to have broader implications.

Attaching a GPS to a car isn't the only way the government can
track people's movements. In fact, everyone with a cell phone is
already carrying a device that the government can use to track his or
her location. As a result, the principle at stake in this case may well
shape our privacy rights in the years and decades to come.

The police in the current case suspected Antoine Jones of drug


violations and tracked his movements continuously for one month by
installing a GPS device on his car. Increasingly, though, law
enforcement agents are tracking our movements by tracking the cell
phones that most people are already carrying around.

It doesn't matter whether your phone is a smartphone or


whether you use it to make calls; as long as your phone is turned on,
it registers its location with cell phone networks several times a
minute, and all cell phone companies hold on to that data, some of
them for years.

This kind of tracking is extremely invasive, because if the


government knows where you are, it knows who you are. As in the
case of Jones, the appellate court explained in its ruling that the
government violated the Fourth Amendment, "A person who knows
all of another's travels can deduce whether he is a weekly
churchgoer, a heavy drinker, a regular at the gym, an unfaithful
husband, an outpatient receiving medical treatment, an associate of
particular individuals or political groups -- and not just one such fact
about a person, but all such facts.”17

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16
565 U. S. ____, 23 January 2012.
17
381 U. S. 479, 484 (1965).

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Cell phone tracking can reveal our private associations and
relationships with one another. The government could make note of
whenever people being tracked crossed path or spent time together,
showing who our friends, associates and lovers are.

The Judiciary sometimes gets warrants to track location, and


some local police departments make it a policy, which shows that it's
not an unworkable requirement. But judges have made conflicting
rulings on what standards are required for the government to obtain
tracking information from cell phone companies.

New technology provides the government with a powerful and


inexpensive tool to follow individuals as they travel through both
public and private areas. Unless the court concludes that such
tracking requires a warrant, anyone's movements could be subject to
remote monitoring and permanent recording at the sole discretion of
any curious police officer, without any judicial oversight.

And while it may not be realistic to think that the government


will install a GPS device on every car, it's not at all implausible to
think that the government will ask cell phone providers to turn over
location-tracking information en masse -- and it may well be the case
that the government is doing so already.

The genius of the Constitution is that its limits on the


government can still be applied in a modern world that the framers
could scarcely have imagined. Anyone who values privacy should
hope that the Court ensures the government cannot use
technological advances to undermine the liberties this country was
founded on.

V. Will the Philippine Courts follow US v. Jones

Will the Philippine Court still resolve the case in the same way if
the GPS device was embedded in the person’s smartphone or tablet
and the police used the telephone company’s data on the GPS to
track the whereabouts of the subscriber?

It is arguable that the restriction in Jones case will no longer


apply as there is no “physical intrusion on an effect.” The police do
not have to place the GPS in the smartphone or tablet as the
telephone company had already included that feature in the mobile
device. When the subscriber bought the smartphone or tablet and
turned on the GPS feature, he or she knows that the location of the
mobile device is now being tracked by the telephone company.

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But this begs the question whether the subscriber expected the
government to find out his or her location the moment the mobile
device is switched on.

GPS devices can give more information to the police than


ordinary tracking devices like beepers. Certain GPS units can
calculate the route to a particular destination, as well as the speed
and distance to the destination. Most units allow for storage of
information, which users can retrieve at a later time. Also, GPS units
do not require constant monitoring as beepers do. As such, the use
of GPS-generated data by the police poses a greater threat to
privacy.

VI. Conclusion

GPS tracking is often simplified into tracking the real time


location of a person; many do not associate it with a great invasion of
privacy. One might think that it does not matter if other people
knows that he goes to Starbucks every morning before work or that
they spend Sundays at his girlfriend’s house. This line of thinking
misses a larger point. If someone has the ability to know the real
time location of a person around the clock, they are able to create a
mosaic of that person’s life. They learn everything about that person,
much of which is highly personal and private in nature.

The potential location-tracking capability of future technologies


is limitless. It is essential that the public understand how the
technologies work and realize how they invade their privacy. The
right of the people to be secured in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.

Clearly, the rapid development of technology is stretching the


Constitutional protection against unreasonable searches to its limits.
Until the Philippine Court is able to examine and address the issue in
full detail, it is best to strictly apply the warrant requirement.

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