You Get What You Pay For . . . and So Does the Government: How Law Enforcement Can Use Your Personal Property to Track Your Movements

June 16, 2012

If Scott Peterson had been stuck in traffic on a congested highway in Los Angeles, driven to a local bank, or taken a transcontinental road trip to West Orange, New Jersey, police in Modesto, California would have known. Indeed, the police department’s surveillance was precise, perpetual, and nearly invisible. It was also electronic. Shortly after Peterson’s wife, Laci, disappeared in December 2002, police in Modesto, California secretly placed Global Positioning System (“GPS”) tracking units on four of his vehicles. Peterson, who has since been convicted of killing his wife, did not know his every move was being recorded by an electronic device and his actions were providing evidence of his guilt. Specifically, Peterson repeatedly visited a marina on the San Francisco Bay, in what prosecutors alleged was an effort to make sure that his wife’s body had not surfaced. While we cannot be sure whether Peterson would have been convicted if not for the GPS evidence, one thing is certain: Law enforcement officers are constantly employing new, more effective means of tracking their suspects, and the rapid technological developments that characterize American society fuel their efforts.
This Comment examines the means by which law enforcement officials can use an individual’s technology against him, focusing on how the government can track people who use certain commercially available products and the laws meant to regulate such conduct. Part II highlights various products that the government can and has used to track people. Part III examines the judiciary’s efforts to regulate such conduct and details how the laws we currently depend on to safeguard us from government surveillance actually provide little or no protection. Part IV proposes ways in which the courts might counter this electronic invasion of privacy.