Wednesday, November 19, 2003
Ninth Circuit Places Limits on Use of GPS Systems in Vehicles for Government Surveillance Purposes
By KENNETH OFGANG, Staff Writer/Appellate Courts
The operator of an on-board communication system in a motor vehicle may be compelled to assist law enforcement in monitoring conversations within the vehicle, but only within certain limitations, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
A divided panel said a federal judge erred in allowing the FBI to disable the on-board communications system in an automobile in order to facilitate surveillance of the owner.
The targets and subject matter of the investigation, conducted the Justice Department’s Las Vegas Organized Crime Strike Force, were not identified.
On-board systems combine cellular telephone and global positioning satellite technology to put subscribers in touch with company staffers at a command center. As Judge Marsha Berzon explained it for the Ninth Circuit, such systems “assist drivers in activities from the mundane—such as navigating an unfamiliar neighborhood or finding a nearby Chinese restaurant—to the more vital—such as responding to emergencies or obtaining roadside assistance.”
The feature at issue in yesterday’s ruling, the judge went on to say, allows the operator to open a cellular connection to a vehicle and listen to oral communications within the car. When activated at the owner’s request, this feature enables the operator to communicate with emergency personnel, or to overhear the thieves if the car has been stolen.
But the same technology permits eavesdropping, the judge noted, and has thus caught the interest of the FBI, leading to yesterday’s review of a series of orders by U.S. District Judge Lloyd D. George of the District of Nevada. George approved a series of four 30-day “roving” wiretap orders requiring the system operator to assist in the investigation by permitting the FBI to monitor conversations within the vehicle.
The Ninth Circuit declined to identify the system operator, referring cryptically to “The Company” throughout the opinion. But its explanation of the system describes the technology placed in about two dozen models of luxury cars by General Motors, and operated by GM’s OnStar Corp. subsidiary.
“The Company,” after complying with George’s first ex parte order, challenged the remaining orders as an unlawful infringement upon its business. After George declined to quash his second order, the company complied with that and the subsequent orders, but challenged them on appeal.
Berzon noted that the last order has long-since expired—the case was argued in the Ninth Circuit in December of last year—but said the case would not be dismissed as moot because similar orders are likely to be issued in the future.
The Ninth Circuit panel held that operators of on-board systems come under the wiretap provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended.
The act permits “duly authorized law enforcement officers” to engage in electronic surveillance and to obtain court orders requiring the assistance of a “provider of wire or electronic communication service, landlord, custodian, or other person...to accomplish the interception unobtrusively and with a minimum of interference with the services” being provided to the target of the surveillance.
Berzon agreed with the district judge that the operator of an on-board system is a “provider” of a communications service, and is the type of entity whose assistance Congress intended to require. But the orders granted by George went too far, Berzon wrote, because they permit more than “a minimum amount of interference” with the company’s service.
The appellate jurist explained:
“In this case, FBI surveillance completely disabled the monitored car’s System. The only function that worked in some form was the emergency button or automatic emergency response signal. These emergency features, however, were
severely hampered by the surveillance: Pressing the emergency button and activation of the car’s airbags, instead of automatically contacting the Company, would simply emit a tone over the already open phone line. No one at the Company was likely to be monitoring the call at such a time, as the call was transferred to the FBI once received.”
Since the FBI is prohibited by Title III from listening in on conversations unrelated to its investigation, Berzon elaborated, an emergency call would likely have gone unheeded. Besides, she wrote, “the FBI, however well-intentioned, is not in the business of providing emergency road services, and might well have better things to do when listening in than respond with such services to the electronic signal sent over the line.”
Berzon explained in a footnote that even if it is possible for the operator to design a system in such a way that surveillance may be conducted without disabling other services, there is nothing in the Omnibus act that requires it to do so.
Senior Judge John T. Noonan concurred in the opinion, but Judge Richard Tallman dissented.
The majority, Tallman argued, erred in defining “minimum amount of interference” by creating “an absolute threshold instead of a relative standard.” Since there was no actual interference with services, and no showing that any lesser intrusion by the government could have met the legitimate needs of law enforcement, George’s orders should have been upheld.
Copyright 2003, Metropolitan News Company