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The Electronic Frontier Foundation and the American Civil Liberties Union are waging a legal challenge against what they say is law enforcement's growing use of global positioning system location-tracking devices often without first seeking a warrant.

In a friend-of-the-court brief filed Tuesday, EFF attorneys argued that FBI agents should have obtained a court order before secretly planting GPS technology on the vehicle of a drug trafficking suspect. The device allowed agents to know the suspect's whereabouts 24 hours a day for a full month, was accurate to within 100 feet and yielded more than 3,100 pages worth of data, according to the filing.

Because such devices allow agents to determine a person's precise location, they can be used to track visits to any residence, therapist or medical facility. Such surveillance should be covered under the US Constitution's Fourth Amendment, the brief argues.

"Absent a warrant requirement, the police could track unlimited numbers of members of the public for days, weeks, or months at a time, without ever leaving their desks," the document states.

"No person could be confident that he or she was free from round-the-clock surveillance of his or her movements and associations by a network of satellites constantly feeding data to a remote computer that could at any instant determine with precision his or her current or past movements, and the time and location that the individual crossed paths with other GPS-tracked persons."

The brief was jointly filed by EFF and the American Civil Liberties Union of the National Capital Area.

The brief comes in the case of a man indicted for cocaine trafficking in the Washington, DC area. FBI agents secretly planted the device on his Jeep Cherokee while it was parked on private property without ever securing a warrant. Physical locations of the vehicle were then used by investigators when they filed a 34-count indictment against the man, Antoine Jones, and four other suspects.

A federal judge presiding over the case suppressed evidence collected by the GPS device while the jeep was parked in the private garage, but allowed all other data to be admitted. The brief argues that all evidence collected by the GPS device should be thrown out because it was obtained without a court order.

"The Fourth Amendment protects 'people not places,'" attorneys argued, citing an earlier court case. "Thus, whether investigative activities track an individual on a public road or in a private space does not determine the Fourth Amendment question."

According to the brief, a growing number of law enforcement agencies are relying on GPS. Police cruisers in Los Angeles, for example, are outfitted with air guns that can shoot GPS-enabled darts at passing cars. Police in Arlington and Fairfax counties near Washington used GPS devices 229 times from 2005 to 2007, the brief said, citing this article in The Washington Post.

What's more, the falling cost and growing sophistication of the technology makes it likely law enforcement will increasingly rely on such devices in the coming years.

The case, United States of America v. Lawrence Maynard and Antoine Jones, is before the US Court of Appeals for the District of Columbia. Oral arguments have not been scheduled yet. A PDF version of the brief is available here ®

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