Location tracking by police

The regulation of “tireless and absolute surveillance”

Bert-Jaap Koops, Bryce Newell, Ivan Skorvánek

Research output: Contribution to journalArticleScientific

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) to regulate what might easily turn into what the Supreme Court of the United States has called “tireless and absolute surveillance.” 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.
Original languageEnglish
Pages (from-to)635-698
Number of pages64
JournalUC Irvine Law Review
Volume9
Issue number3
Publication statusPublished - 1 Mar 2019

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privacy
surveillance
police
regulation
jurisdiction
freedom of movement
SMS
cell phone
legal status
anonymity
secrecy
public space
license
twenty-first century
Poland
habits
Supreme Court
communications
Italy
Netherlands

Cite this

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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) to regulate what might easily turn into what the Supreme Court of the United States has called “tireless and absolute surveillance.” 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.",
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Location tracking by police : The regulation of “tireless and absolute surveillance”. / Koops, Bert-Jaap; Newell, Bryce; Skorvánek, Ivan.

In: UC Irvine Law Review, Vol. 9, No. 3, 01.03.2019, p. 635-698.

Research output: Contribution to journalArticleScientific

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