Location Tracking by Police: New Frameworks for Preserving Geolocational Privacy

UC Irvine Law Review, Vol. 9, Spring 2019, Forthcoming

Tilburg Law School Research Paper No. 2018-8

66 Pages Posted: 21 Mar 2018  

Bert-Jaap Koops

Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT)

Bryce Clayton Newell

University of Kentucky

Ivan Škorvánek

Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT)

Date Written: February 12, 2018

Abstract

Location information reveals people’s whereabouts, but can also tell much about their habits, preferences, and, ultimately, much of their private lives. Current surveillance technologies used in criminal investigation include many techniques to track someone’s movements; not all are equally intrusive. This raises the following questions: how do jurisdictions draw boundaries between lesser and more serious privacy intrusions? what factors play a role? how are geolocational privacy interests framed? In this Article, we answer these questions through a comparative analysis of location-tracking regulation in eight jurisdictions: Canada, Czechia, Germany, Italy, the Netherlands, Poland, the United Kingdom, and the United States.

We analyze the legal status of location tracking through human observation, GPS tracking, cell-phone tracking, IMSI-Catchers (Stingrays), silent SMS, automated license-plate recognition, and directional Wi-Fi tracking in these countries. This results in highly context-dependent and case-specific assessments, in which eight factors play a role: use of a technical device, place, intensity, duration, degree of suspicion, object of tracking, covertness, and active generation of data. At a deeper level of analysis, we identify different conceptualizations of privacy underlying these assessments: not only classic privacy frames, such as communications secrecy, protection of home and body, and informational privacy, but also two new privacy frames: freedom of movement in combination with anonymity, and the mosaic theory. Thus, we discern a tentative but unmistakable shift in how lawmakers and courts assess the intrusiveness of location tracking, particularly of people’s movements in public space.

Traditional privacy frames tend to downplay the seriousness of the privacy infringement enabled by location tracking, and our analysis demonstrates an increasing discomfort with this tendency, leading to the emergence of novel privacy frames (or theories). We conclude that legal privacy frameworks developed in past centuries prove ill-suited for assessing the privacy-intrusiveness of contemporary location-tracking investigation methods, and that emerging, novel frameworks for understanding and protecting privacy may provide lawmakers and courts with the tools needed to address the challenge of preserving (geolocational) privacy in the twenty-first century.

Keywords: privacy, geolocation, privacy law, information privacy, criminal procedure, comparative law

Suggested Citation

Koops, Bert-Jaap and Newell, Bryce Clayton and Škorvánek, Ivan, Location Tracking by Police: New Frameworks for Preserving Geolocational Privacy (February 12, 2018). UC Irvine Law Review, Vol. 9, Spring 2019, Forthcoming; Tilburg Law School Research Paper No. 2018-8. Available at SSRN: https://ssrn.com/abstract=3142165

Bert-Jaap Koops

Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT) ( email )

P.O.Box 90153
Prof. Cobbenhagenlaan 221
Tilburg, 5037
Netherlands

Bryce Clayton Newell (Contact Author)

University of Kentucky ( email )

Lexington, KY 40506
United States

Ivan Škorvánek

Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT) ( email )

Tilburg
Netherlands

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