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Where Are We Now?: Location Tracking, Technological Change, and the Fourth Amendment

Berkeley Journal of Criminal Law, Vol. 16, Issue 2, 2011

Posted: 5 Nov 2011 Last revised: 22 Nov 2011

Ian Herbert

New York University

Date Written: November 3, 2011

Abstract

Thirty years ago, the United States 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.

Keywords: GPS, tracking, location tracking, surveillance, Global Positioning System, NAVSTAR, Fourth Amendment, search, beeper, criminal procedure, Knotts

Suggested Citation

Herbert, Ian, Where Are We Now?: Location Tracking, Technological Change, and the Fourth Amendment (November 3, 2011). Berkeley Journal of Criminal Law, Vol. 16, Issue 2, 2011. Available at SSRN: https://ssrn.com/abstract=1954222

Ian Herbert (Contact Author)

New York University ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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