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  • 1. Ch.5 - Balancing the Concern and Enthusiasm for Emerging Geographical Information Systems (GIS) as Technologies Proliferate (Bagby/Tishman) by policymakers in regulating the electronic John W. Bagby & Daniel A. Tishman1 surveillance techniques of law enforcement and network administration as technological Emerging GIS technologies, such as innovation progresses. Radio Frequency Identification (RFID)2 and the Global Positioning System (GPS),3 are 5.1 - Introduction gaining momentum for the conduct of Geographic Information Systems (GIS) surveillance and thereby capture long are procedures that process spatially desired supply chain efficiencies. Such measurable information derived from introduction of new technologies inevitably geographical databases.7 Generally, they creates instability in the balance between serve to match a physical location on Earth security and privacy.4 GIS is increasingly with a specific attribute. GPS technologies deployed by law enforcement and in facilitate the collection of such information expanding use for counter-terrorism, raising by enabling devices (mobile phones, privacy issues, reawakening the persistent vehicles, electronic mapping devices, etc.) to fear of despotic government.5 Pervasive be pinpointed accurately using reference intrusions are also enabled by technological data taken from various sources, most failures6 and from private-sector sources notably GPS location referencing radio such as perceived misuse and unauthorized signals received from satellites orbiting “hackers.” This chapter discusses how Earth. Although not yet readable from outer public policy constraints on surveillance and space, RFID transmitters can be used to wiretapping can preserve privacy while store and communicate information upon enabling the functionality of new being detected by an RFID reader, technologies, and that a balance between potentially enabling devices (including security enabling technologies and privacy individuals possessing such devices) to be will ultimately benefit society. This located. The growth of these technologies is chapter’s analysis is intended to guide a cause for both concern and enthusiasm; 1 Both of the College of Information Sciences concern that personally identifiable and Technology at the Pennsylvania State information (PII) will be misused, and University. enthusiasm for their potential societal 2 Radio Frequency Identification is an automatic benefits. identification system consisting of frequency readers Privacy is an important part of our and transmitters with unique data. See § 5.1.1 infra for a detailed discussion of Radio Frequency society; the reinterpretation of old laws has Identification. been needed in light of new technological 3 The Global Positioning System is a location innovations, and recent developments referencing technology consisting of satellites that can continue to challenge lawmakers and accurately approximate the position and direction of a politicians.8 These new technologies are receiver at a given time. See § 5.1.2 infra for a detailed discussion of the Global Positioning System. currently used to track devices and, in some 4 See e.g., John W. Bagby, The Public Policy cases, the individuals who physically Environment of the Privacy-Security possess those devices. For example, police Conundrum/Complement, available at use transmitters to track the path and http://faculty.ist.psu.edu/bagby/12.pdf (last visited July 24, 2007) (discussing tradeoffs and correlations 7 between electronic privacy and security). Here, spatially measurable information refers to 5 See e.g., Nadine Strossen, Protecting Justice and location referencing with relation to a position on Liberty After 9/11, Counter Punch, January 25, 2002, earth. Some examples of spatially measurable http://www.counterpunch.org/strossen1.html (last information include human position with relation to visited July 27, 2007). natural or political boundaries, satellite mapping data, 6 Technological failures include damage during use, Arial photography, etc. 8 improper manufacture, reader malfunction, and See § ?.?.? (Introduction: Overview of the anything else that could damage the fidelity of the Constitutional Basis for Privacy Protection) infra for a radio frequency. discussion of the origins of privacy in American law. 1
  • 2. Ch.5 - Balancing the Concern and Enthusiasm for Emerging Geographical Information Systems (GIS) as Technologies Proliferate (Bagby/Tishman) location of vehicles, aiding them in drug9 technologies brings forth a need for public and murder cases.10 Concerns also are raised policy to protect the privacy of individuals. about the widening acceptance of electronic Despite the novelty of these toll collection systems (ETC) such as EZ- technologies and the lack of foresight in Pass and FasTrak.11 In another dramatic privacy law language to capture new example, there are hundreds of sex offenders technologies, there are some newer laws that in America whose whereabouts are specifically address such technological constantly tracked with GPS receivers evolutionary issues related to them. Case connected to secure ankle bracelets, to law is a powerful source for identifying the assure that they stay out of certain areas with first principles useful to adapting existing vulnerable populations. Indeed, RFID law.13 As of this writing, two states, devices are gaining popularity for a wide Wisconsin14 and North Dakota,15 have range of uses, in everything from supply banned forcible implantation of RFID chips. chain optimization of shipments and In addition, there are several more similar inventories of consumer products like razor bills pending in California.16 Consumer blades to detection of counterfeit driver’s groups, such as Consumers Against licenses. In particularly dramatic cases, Supermarket Privacy Invasion and some people have agreed to have tiny RFID Numbering (CASPIAN) 17 are also fighting transmitters implanted into their bodies for to keep RFID chips out of supermarkets. various reasons (payments, medical Not surprisingly, technology and security information, tracking, etc.).12 Cellular advocates take an opposite stance.18 A telephones, even those without GPS 13 capabilities, can also be used to determine See Pamela Samuelson, Five Challenges for location using other methods such as cell Regulating the Global Information Society, University of California at Berkeley, 1999, available at tower triangulation. The abundance of http://www.sims.berkeley.edu/~pam/papers/ implementations of location referencing 5challenges_feb22_v2_final_.pdf (last visited July 27, 2007). 14 Wis. 2005 Act 482, § 1, eff. June 14, 2006 available 9 See United States. v. Karo, 468 U.S. 705 (1984). at http://www.legis.state.wi.us/2005/data/ 10 See State v. Jackson, 150 Wash.2d 251, 76 P.3d 217 acts/05Act482.pdf (last visited July 17, 2007) (Wash. 2003). (prohibits forcible insertion of RFID tags). 15 11 See Christopher Caldwell, A Pass on Privacy?, New ND. 12.1-15-06. available at York Times, July 17, 2005, http://www.nytimes.com/ http://www.legis.nd.gov/cencode/t121c15.pdf (last 2005/07/17/magazine/17WWLN.html? visited July 17, 2007) (prohibits forcible insertion of ex=1279339200&en=c1f10d3de06adea6&ei=5088 RFID tags). 16 (last visited July 16, 2007) for a discussion on the [CITE] CALIFORNIA BILLS:: No28 prohibits the privacy issues that arise from ETC systems like EZ- Department of Motor Vehicles from issuing Pass. See also John W. Bagby and Gary L. Gittings, identification cards that transmit information remotely, Litigation Risk Management for Intelligent or “enable personal information to be read from the Transportation Systems (Part One), ITS-Quarterly, license or card remotely. No 29 prohibits schools from Vol.VII, No. 2, Spring - Summer 1999, available at issuing pupils with devices which transmit personal http://faculty.ist.psu.edu/bagby/Pubs/BagbyGittingsIT information remotely for purposes of keeping SQp1.pdf (last visited July 27, 2007); John W. Bagby attendance or tracking physical location. No31 and Gary L. Gittings, Litigation Risk Management for punishes anyone who reads a person’s identification Intelligent Transportation Systems (Part Two), ITS- document using radio waves, without their consent Quarterly, Vol.VII, No. 3, Fall 1999, available at and knowledge. No362 prohibits forced implantation http://faculty.ist.psu.edu/bagby/Pubs/BagbyGittingsIT of identification devices. No388 requires distributors SQp2.pdf (last visited July 27, 2007); John W. Bagby of RFID devices to offer information to customers; and Gary L. Gittings, Litigation Risk Management for such as security measures, the information on the Intelligent Transportation Systems (Part Three), ITS- device, etc. 17 Quarterly, Vol.VIII, No. 1, Winter 2000, available at See CASPIAN, http://www.nocards.org/ (last visited http://faculty.ist.psu.edu/bagby/Pubs/BagbyGittingsIT July 16, 2007). 18 SQp3.pdf (last visited July 27, 2007). For example, large stores such as Wal-Mart and 12 See § 5.3.2 infra for more information about human Target advocate RFID use because of the efficiency RFID implants. improvement inherent with the technology, and 2
  • 3. Ch.5 - Balancing the Concern and Enthusiasm for Emerging Geographical Information Systems (GIS) as Technologies Proliferate (Bagby/Tishman) balance must be made, in order to assure The technology for RFID is hardly new, these technologies benefit society to their indeed, it has existed since World War II fullest capacity, without infringing on the with the introduction of the IFF22 privacy of individuals. (identification, friend or foe) devices which were placed on aircraft to transmit a signal 5.1.1 - Radio Frequency allowing aircrafts to be classified as either Identification “friends” or “foes,” as the name implies. Radio Frequency Identification (RFID) Today, however, the technology has is a collection of related methods of improved significantly. RFID transponders identification that involve reading and can be made so small that they can be transmitting radio waves with transponders embedded into sheets of paper, or implanted (tags) and readers. Generally the tags are into human beings.23 RFID tags can store low cost and compact transmitters attached varying amounts of data;24 some tags contain to vehicles, devices or supply chain detailed information, while others hold only throughput. The reading devices are often an identification number that can be entered stationary installations, much larger, into a database to reveal more information transmit energy that excite the tags when in related to the transponder. Such reference to close proximity and receive a short burst of proprietary or publicly available databases identification data, perhaps as short as 10 or clearly raises public policy questions of the 20 ASCI characters. However, there are maintenance, use and business modeling of many different kinds of RFID technologies proprietary systems and the privacy using very short-range transmitting tags: protections afforded to public systems those with no internal power source making such data available to third party (passive).19 These are charged by incoming requestors.25 radio frequencies. Active RFID tags, 20 on Despite apparent concerns created by the other hand, have an internal power recent innovations, RFID technology offers source, and may have much stronger clear advantages in terms of both transmitters capable of reliable detection at convenience, as well as productivity. RFID much longer distances (one hundred feet or tags placed on consumer products, while more).21 In between active and passive, are potentially invasive, could serve to speed up semi-active RFID tags, also known as supply chain processes, such as tracking battery assisted, which are powered on with merchandise and supplies from manufacture an internal battery; however the battery is to final sale.26 This type of real time tracking not used for transmission of the radio 22 See IFF – Identification Friend or Foe, Technical frequency. Each sub-class has its own Surveillance Counter Measures, inherent advantages and disadvantages, but http://tscm.com/iff.pdf (last visited July 16, 2007). 23 they all serve the same range of VeriChip corporation manufactures an FDA approved RFID tag that is about twice as long as a identification purposes. grain of rice. See VeriChip Corporation, http://www.verichipcorp.com/ (last visited July 16, 2007). security advocated have proposed the technology for 24 Chips can store up to 2KB of information. For improved security at international borders, etc. See § example, a chip might contain product, manufacture, 5.3 infra for a discussion of the uses of GIS and destination information. A chip on a human could technologies. contain identification information, or simply an 19 See C.M. Roberts, Radio Frequency Identification identification number. See What is RFID, (RFID), http://www.rfidjournal.com/article/articleview/1339/1/ http://eprints.otago.ac.nz/280/01/RFID_Pre_Publicatio 129/ (last visited July 16, 2007). 25 n.pdf (last visited July 16, 2007). CITE 20 See Active Tag, Technovelgy.com, 26 See Yingjiu Li, Xuhua Ding, Protecting RFID http://www.technovelgy.com/ct/Technology- Communications in Supply Chains, ACM Press, Article.asp?ArtNum=21 (last visited July 24, 2007). available at http://portal.acm.org/ft_gateway.cfm? 21 Id. id=1229318&type=pdf&coll=GUIDE&dl=GUIDE&C 3
  • 4. Ch.5 - Balancing the Concern and Enthusiasm for Emerging Geographical Information Systems (GIS) as Technologies Proliferate (Bagby/Tishman) of product information could eventually be technology, privacy concerns become a tangibly beneficial on all levels of the priority. supply chain, providing information such as As with many other users of electronic where a product goes, where it came from, data, it is possible for RFID users to encrypt customer service information etc. This the data while residing on the tags, while in would aid manufacturers and carriers with transmission from the tags to readers, during shipping of consumer product, and would additional step(s) of transmission from the improve efficiency at retail stores. reader onward for processing, storage, Eventually, improvements in efficiency on dossier construction, transfer onward to multiple levels of the supply chain can lead other third parties or other interpretation. It to price drops for consumers by reducing is increasingly important to encrypt such overhead costs. data during intermediate storage to prevent RFID tags in passports or Driver’s unauthorized interception or misuse of Licenses could facilitate international travel personally identifiable information (PII).30 by improving efficiency at international RFID tags, and the various networks borders,27 much like ETC systems shorten collecting and processing tag data, that lines at tollbooths. RFID tags are becoming incorporate encryption, or that contain only more broadly deployed as a component in a simple identification number reduce charge cards, either credit or debit,28 privacy concerns somewhat. sandwiched in the plastic to permit However, there are many other intentional proximity transmission of vulnerabilities to the RFID data and to the account authentication. RFIDs are also interpretations based on this RFID data. For commonly used on employee identification example, as long as the information on the cards to allow access into buildings and tags does not change, unauthorized readers rooms.29 Extensive RFID monitoring could recognize the information for systems would permit employers or their identification. Regular changes in the RFID third party service providers to data can contribute to overcoming the comprehensively monitor employee physical “persistent identifier vulnerability,” similar movements and locations. Privacy advocates to the userid and password vulnerability note that if implanted such tracking devices experienced by most users of networks for would inform the monitoring agent of the authentication. Many RFID tags can be employee’s whereabouts on or off the job. temporarily or permanently deactivated. Contrawise, others note that employees Deactivation contributes to addressing equipped with nametag or other easily privacy problems of unauthorized detection. removable RFIDs could deceive monitoring Unauthorized interception of RFID agents by temporarily relocating them to signal expression is not the only privacy and “acceptable” locations. With all of the security concern for RFID tags. emerging uses for this fascinating Unauthorized duplication and tampering concerns also impose security concerns. For FID= 28588324&CFTOKEN=90246479 (last visited July 16, 2007). example, with the right technology, 27 In 2008, Washington will pilot a Driver’s License criminals could tamper with information with RFID capabilities, in order to facilitate travel to while residing on RFID tags to commit and from Canada. See Enhanced Driver Licenses and fraud. Consider how a hacker might change ID Cards, http://www.dol.wa.gov/about/news/ an inventory or skew number to a lower priorities/borderCrossingFaq.pd (last visited July 16, 2007). priced item or directly change the RFID 28 See Visa payWave, coded price, the emerging equivalent of http://www.visa.com/visapaywave/ (last visited July changing price stickers such as to make a 16, 2007). certain item appear less expensive at a 29 See Enterprise Employee Smart Card Use, RFID Gazette, http://www.rfidgazette.org/2006/10/ 30 enterprise_empl.html (last visited July 16, 2007). [CITE to FTC encryption cases, 4
  • 5. Ch.5 - Balancing the Concern and Enthusiasm for Emerging Geographical Information Systems (GIS) as Technologies Proliferate (Bagby/Tishman) supermarket checkout. Duplication of many years;34 radio navigation dates back to information on driver’s licenses, passports, World War II,35 however recent innovations credit cards or other devices could and cost efficiencies in building have contribute to identity theft. While banks, brought about widespread and fast growing retailers and third party data handlers use of the system. As with RFID recognize these vulnerabilities and have technology, the expansion of GPS devised a few safeguards to prevent innovation applications also raises privacy information from falling into the wrong concerns. hands, it seems clear that further protection Initial privacy concerns raise is necessary from both technology designers controversy from GPS applications and policymakers. involving human and vehicle tracking. In several cases, law enforcement agents have 5.1.2 - Global Positioning System used tracking devices to locate vehicles, and The Global Position System (GPS) is a in some cases they have tracked vehicles for GIS system dependant on the global extended periods of time, using GPS navigation satellite system developed by the tracking devices.36 This is a controversial United States Department of Defense. GPS issue, and the question has arisen as to is still operated by the United States Air whether or not a warrant is needed before a Force.31 GPS consists of three main tracking device can be secretly installed on a components: (1) the space segment, (2) the suspect’s vehicle. Indeed, there are many control segment and (3) the user segment.32 complicated factors to consider. Today, sex The space segment is made up of 24 offenders are tracked via GPS devices, and satellites that orbit the earth in static, there is some controversy as to whether or synchronous orbit permitting them to not this is effective as a method of accurately transmit signals to earth deterrence, and over whether or not this is communicating the recipient’s precise an unjust invasion of privacy.37 location. The control segment monitors GPS devices also come standard on these satellites to make sure they are most new cell phones, to allow for the operating properly. At the user end of the phones to be tracked in emergency system, receivers receive the transmissions situations.38 Navigational systems on cars, and compute through triangulation, a three which are typically used by drivers, can also dimensional view of the recipient’s position, be used for tracking vehicles, and time, and direction. communicating with components within the This technology offers clear tactical 34 See GPS Timeline, The Aerospace Corporation, advantages to the military. Civilian uses are http://www.aero.org/education/primers/gps/ also evident both prima facie and through gpstimeline.html (last visited July 17, 2007). 35 technological prediction. GPS is used for Long Range Navigation (LORAN) is a radio navigation system that dates back to the 1940s. See accurate atomic clock timing, as well as LORAN Information from the Stanford GPS Lab, road, space, air and marine navigation. It is Stanford University, http://waas.stanford.edu/research/ useful for mapping, for disaster relief, for loran.htm (last visited July 17, 2007). agriculture, and for many other uses.33 The 36 See infra § 5.3.1 for more information about vehicle technology for GPS has been around for tracking aided by technology. 37 See Koch, supra note 7. 38 31 PL 106-81, October 26, 1999, 113 Stat 1286 The See Peter H. Dana, Global Positioning System Wireless Communications and Public Safety Act of Overview, http://www.colorado.edu/geography/gcraft/ 1999 (Traditionally, when 911 calls were made from notes/gps/gps.html (last visited July 16, 2007). land lines emergency services could be deployed to a 32 See Global Positioning System, http://www.gps.gov location traced to the phone number from which the (last visited July 17, 2007). call was made. Initially, phone calls made from 33 See Uses for GPS, The Aerospace Corporation, cellular phones lacked this capacity, but this law has http://www.aero.org/education/primers/gps/uses.html assured that calls on mobile phones can be traced to a (last visited July 24, 2007). location in emergency situations.) 5
  • 6. Ch.5 - Balancing the Concern and Enthusiasm for Emerging Geographical Information Systems (GIS) as Technologies Proliferate (Bagby/Tishman) vehicles.39 These functionalities can technologies and methods that should also potentially save lives, however they also be considered in setting public policy to cause some privacy concerns. Without balance security and privacy or which accept careful attention from policymakers and the effectiveness predictions for supply lawmakers, this highly personal information chain efficiencies. Simple technologies, could become too easily accessible. Concern extant for much longer than GPS and RFID, arises from criminal interception, as well as can enable location referencing and human from government surveillance. Despotic tracking. There are also many newer governments could potentially use location- technologies with possible GIS applications. referencing information in unfair ways. In As with most new technologies, it is America, much consideration must be taken important to review how the use of similar with regards to these technologies with (and sometimes seemingly unrelated) issues relation to the constitution, which guarantees have been interpreted under law and citizens a certain level of privacy. The USA regulation in the past, in order to facilitate PATRIOT Act40 brings forth further concern reconsideration with regards to modern from citizens who are worried that laws like innovations. Some of such interpretation this can give the government too much informative technologies include, but are not power, especially when paired with limited to cameras, printers, radio innovative technologies. transmitters, cell phones, biometric scanners and even thermal imaging devices. Any 5.1.3 - Other Technologies device that is at a stationary location, or can Unwanted observation is not a new be used to determine location, and can concept; traditionally it was done simply by record or transmit information relative to “peeping Toms” who leered into someone’s that location, can be used as part of a GIS window, through aerial observation, or and can present the same privacy issues as through other stealthful techniques. RFID and GPS devices. Expectation of privacy41 was just as Cameras are a technology that can be important historically as it is today. For used to match a person or a vehicle with a example, someone who leaves their front location and a time. Different technologies curtains open does not likely have a can allow cameras to identify people, or reasonable expectation of privacy with vehicles, for example at some stop lights, to regards to what they place or perform record the license plates of those who run behind that window. Similarly, there is a red lights, 43 as well as at toll booths when limited expectation of privacy in a vehicle drivers fail to pay tolls. Computer driven on public roads. A tollbooth operator, technology allows for license plates to be or a police officer for example, can see into converted from image files, to text which a driver’s car through their windows, or a can then be compared with database police officer could follow a car to see contents for matching revealing information where it is going.42 on the operator and owner of the vehicle,44 While GPS and RFID are two of the so that tickets can be issued and delivered by most relevant and controversial new GIS mail. This technology has GIS implications technologies with location referencing because it matches a vehicle to a location at capabilities, there are many other a certain time. Even if a camera is not 43 39 See Redlight Running Cameras, Federal Highway For example, an OnStar operator could unlock doors Administration, http://safety.fhwa.dot.gov/ remotely. See OnStar, http://www.onstar.com/ (last intersections/redl_cameras.htm (last visited July 17, visited July 17, 2007). 2007). 40 See infra § 5.2.5. 44 Federico Pena, Tollroads: Their Past and Their 41 See infra Discussion of Katz’ (EXPECTATION OF Future, Tollroads News, October 22, 2003, PRIVACY). http://www.tollroadsnews.info/artman/publish/article_ 42 United States v. Knotts, 460 U.S. 276 (1983). 1661.shtml (last visited July 17, 2007). 6
  • 7. Ch.5 - Balancing the Concern and Enthusiasm for Emerging Geographical Information Systems (GIS) as Technologies Proliferate (Bagby/Tishman) stationary, cameras can indicate location Similar meta-data is created for most when compared to different properties, such phone calls, wireline and wireless. Cell as landmarks, climate and the moving phone companies store information such as vehicle on which the camera might be the number called, the time of the call, and mounted. These attributes can be taken from the location of the call. Some of this data is pictures to help narrow down where they regulated by the Federal Communications were taken. Commission (FCC) as “consumer Consider how the watermarking proprietary network information” (CPNI).47 capabilities of computer printers potentially Another method, known as “cellular reveal many things about users, timing, triangulation” allows an approximate location and other potentially useful location to be determined based on the variables. Computer printers are not widely distance of the phone from the nearest, considered to reveal geographic or location responding cellular towers invoked to carry referencing capabilities. However, advances the call. As a moving cell caller is passed in “electronic water-marking” technologies between adjacent cell towers, the phone & are extant and under development in the inferentially its user or owner, can be imaging industry that allow for meta-data to tracked while in transit. Phones with GPS be printed onto sheets of paper.45 Printers devices can also be accessed to accurately can encode additional data not intended by determine a location. the immediate user including identifying the Similar to GPS, radio transmitters have user who printed a document, IP or other been used to locate vehicles for some time, network address from where it was printed, and there have been several cases where the date and time stamp, etc. Of course, printers privacy issues related to this type of can be connected to particular computers surveillance have been put into question.48 from the Internet or moved to other Later in this chapter, the privacy issues locations. Nevertheless, there are often related to tracking vehicles with radio persistent46 location-referencing capabilities transmitters, GPS and similar devices is of these new printer water-marking discussed. Thermal imaging devices, while technologies. This data is similar to the not used for GIS purposes, have played an meta-data which is sent with emails (time, important role in determining how particular sender, recipient, etc.). IP addresses are technologies can be used with and without a stored on some web applications, and can warrant, by law enforcement.49 then be traced to a location, user, time, or 47 other identifiers. CITE to FCC’s CPNI definition & regulation, (parenthetical w/ phrases briefly summarizing CPNI controls, ownership, uses. 48 See infra § 5.3.1. 45 For example, Hewlett-Packard (H-P), a predominant 49 See Kyllo v. United States, 533 U.S. 27 (2001). innovator in paper imaging technology, is developing Suspicious that Kyllo was growing marijuana at home, what they call the “Trusted Hardcopy” for use in and without a warrant, a federal agent used a thermal- India, where forgery is a major concern. These imaging device to confirm the areas of his home hardcopies contain a special barcode that contains the where warmer than normal readings were consistent entire document, along with some meta-data. See with the thermal signature of indoor grow lights. Kyllo Jackie Range, H-P’s Emerging Task: Deter Forgeries, also experienced abnormally high utility bills and his The Wall Street Journal, Jun. 28, 2007, at B3, ex-wife, who was believed at the time of the warrant available at to be his current wife, was arrested on drug charges. http://online.wsj.com/public/article/SB118296927964 When this information was verified by a police 850452- informant, a search warrant was issued uncovering the MT_AlIZfDIY35te6qVJNRt5Qg2c_20070704.html suspected marijuana growing in his basement. Despite (last visited July 17, 2007). Kyllo’s motion to suppress the thermal imaging 46 In this chapter, “persistent” data, meta-data, IP evidence, he was indicted: indictment upheld by the addresses, various identifiers or network connections Ninth Circuit holding the evidence was not wrongfully is used to designate that these data or conditions are obtained. Kyllo failed to demonstrate a reasonable not easily or habitually defeated or erased. CITE expectation of privacy because he made no attempt to 7
  • 8. Ch.5 - Balancing the Concern and Enthusiasm for Emerging Geographical Information Systems (GIS) as Technologies Proliferate (Bagby/Tishman) Even without modern technology, many 5.2 - Laws and Regulations of the issues presented by both RFID and While there is a shortage of federal laws GPS have been considered when the specifically directed to confront GIS issues, introduction of other technologies was many statutes can be interpreted to apply to challenged. Concerns related to GIS issues. This type of re-interpretation is identification numbers on RFID chips date an essential aspect of law in our ever- back to biblical times.50 Humans and evolving society;51 the legal community is vehicles have been tracked and observed nearly always challenged by technological long before the new innovations of modern advances. While some may argue the times, by detectives, spies, etc. Essentially, persistence of inherent delays in effective many of the privacy issues related to RFID, lawmaking following new technologies, GPS and other technologies are not unique good legislative policy actually dictates such or new issues, rather most of them have outcomes. Statutes written with intentionally already been reviewed by the courts. vague language so as to capture unforeseen Adaptation of this prior caselaw and consequences of technological advances risk interpretation of search and seizure statutes judicial policymaking through interpretation allows the courts to determine the legal inconsistent with fundamental principles. status of new technologies consistent with Furthermore, strict constructionism largely prior practice and without disturbing privacy forbids any broad expansion of statutes by rights. recognizing the legislature’s responsibility to define covered conduct precisely and by more narrowly channeling statutory interpretation.52 Therefore, lawmaking conceal the heat, and the thermal device showed no closely responsive to emerging technologies intimate details of Kyllo’s home interior. The Supreme is necessarily postponed until the technology Court held the use of the thermal-imaging device, “Thermovision” was unreasonable without a warrant, is understood, usually following its because the device was not in general public use, and introduction and sufficient experience with it reveals evidence that would have been unknowable it to recognize its problems and formulate without physical intrusion: effective legal or regulatory controls. Where, as here, the Government uses a device that is not in general public use, to Most laws applicable to GIS are explore details of the home that would concerned with privacy, including laws previously have been unknowable without related to wiretaps and other forms of physical intrusion, the surveillance is a electronic surveillance by the government, “search” and is presumptively unreasonable law enforcement community, employers and without a warrant. Id. at 31-41. The case was remanded directing the District Court to other intruders. The Fourth Amendment is reconsider without the Thermovision evidence and the root of most laws applicable to GIS. determine whether there was sufficient probable cause Some recent state laws directly focus on for issuance of the search warrant. RFID technology, a trend that appears to be 50 RFID chips, specifically VeriChips, have been gaining some momentum.53 compared to the Mark of the Beast described in the Bible’s Book of Revelations. See Rev 13:16-17. Revelation 13:16 - And he causeth all, both 5.2.1 - 4th Amendment small and great, rich and poor, free and The 4th Amendment to the United States bond, to receive a mark in their right hand, or in their foreheads: Constitution protects the people against Revelation 13: 17 - And that no man might unreasonable searches and seizures, and buy or sell, save he that had the mark, or the 51 name of the beast, or the number of his See Jonathan D. Barker, Society’s Carnivores, Both name. Good and Bad. The Internet Wiretap: Why We Need See Alorie Gilbert, Is RFID the Mark of the Beast?, it, and How it Should be Regulated. 74 UMKC L. Rev. CNET News, February 16, 2005, 945 (Summer, 2006). 52 http://news.com.com/ 8301-10784_3-5579795-7.html CITE to strict constructionism arguments. 53 (last visited July 17, 2007). See infra text accompanying notes - to -. 8
  • 9. Ch.5 - Balancing the Concern and Enthusiasm for Emerging Geographical Information Systems (GIS) as Technologies Proliferate (Bagby/Tishman) assures that warrants are issued only when5.2.2 - Omnibus Crime Control and law enforcement demonstrates probable Safe Streets Act of 1968 cause.54 It was written as a way to protect The Omnibus Crime Control and Safe citizens from unjust invasions of privacy, Streets Act of 196856 (Title III) established a and has been successful in doing so. Some set of rules for electronic surveillance, re-interpretation, however, has been enabling its use for “law enforcement necessary due to advances in technology. investigations of serious crimes.”57 Title III Clearly when the Bill of Rights was written, prohibits anyone other than law enforcement computers were not anticipated by the agents from intercepting oral framers and electronic surveillance methods communications. It also requires law unforeseen. The original text was not enforcement to obtain a warrant before designed to directly deal with technologies “interception” of telephonic we use today, but this does not prevent its communications. Wiretaps under Title III expansion to address the intrusiveness of led to two important cases that essentially new technologies. define contemporary electronic surveillance. The 4th Amendment underlies many First, Berger v. U.S.58 marks the Supreme individual privacy cases throughout Court’s first connection of electronic American history. Today, it is cited in a surveillance to the 4th Amendment. Second, wide range of GIS related privacy issues, for Katz v. U.S.59 lays the groundwork by determining whether or not a warrant is applying the 4th Amendment to electronic needed for specific types of searches. surveillance making clear that the 4th Considerable controversy attends arguments Amendment can be violated without law over whether the warrant and probable cause enforcement or its instrumentalities tangible issues when GPS or other tracking devices intrusion into “any protected physical area.” are used to “follow” or tack a vehicle.55 These cases establish the important concept Today, with information about an that the 4th Amendment is applicable to individual’s whereabouts can be derived intangibles such as telephonic from many different sources (e.g., cellular communications. Adapting such protections phones, credit card records, toll payments), to tracking using GIS technologies such as each with varying degrees of accuracy. The RFID or GPS would appear to be 4th Amendment prohibits government law straightforward. The Omnibus Crime enforcement from tracking travel, compiling Control and Safe Streets Act of 1968 simply dossiers of travel patterns or profiling marks the beginning of statutory law dealing individuals from frequently visited locations directly with electronic surveillance. without a warrant supported by probable cause. This information may seem trivial, 5.2.3 - Electronic Communications but these sorts of patterns can be used in conjunction with other information, to create Privacy Act a fairly accurate profile of the individual In 1986, the Electronic Communications surveyed. Thanks to the 4th Amendment, this Privacy Act60 (ECPA) amended Title III of type of profiling is generally the Omnibus Crime Control and Safe Streets unconstitutional without a warrant. Act of 1968 to extend the scope of wiretaps 56 42 U.S.C. § 3789d 57 See supra Barker, note 38, at 946, citing Susan Freiwald, Online Surveillance: Remembering the Lessons of the Wiretap Act, 56 Ala. L. Rev. 9, 17 (2004). 58 54 See infra § ?.?.? (4th Amendment). Berger v. New York, 388 U.S. 41 (1967). 59 55 United States v. Karo, 468 U.S. 705 (1984); United Katz v. United States, 389 U.S. 347 (1967). 60 States v. Knotts, 460 U.S. 276 (1983); United States v. Electronic Communications Privacy Act of 1986, Garcia, 474 F.3d 994 (7th. Cir. 2007). Pub. L. No. 99-508, 100 Stat. 1848 (1986). 9
  • 10. Ch.5 - Balancing the Concern and Enthusiasm for Emerging Geographical Information Systems (GIS) as Technologies Proliferate (Bagby/Tishman) 5.2.5 - USA PATRIOT Act of 2001 to include electronic transmissions of data via computers. The passage of ECPA was a The terrorist attacks of September, 11th giant step forward in terms of strengthening 2001 led to a further advance favoring law privacy protections of electronic enforcement’s electronic surveillance communications. Thus, it was arguably also authority. The Uniting and Strengthening a giant step forward in strengthening GIS America by Providing Appropriate Tools related information which can electronically Required to Intercept and Obstruct be transmitted. Title I of the act protects Terrorism Act of 200164 (USA PATRIOT only communications in transit, while Title Act) was passed in order to give law II, the Stored Communications Act (SCA) enforcement more power to stop terrorist protects stored data files, importantly, data attacks before they happen. The USA Patriot files while held in storage on a computer or Act facilitates surveillance of email, other storage medium.61 From a GIS telephone and other electronic perspective, the distinction between stored communications, as well as other personal data and data in transit is a particularly information such as library records and important one. financial records. The USA PATRIOT Act also modifies ECPA by permitting voice- 5.2.4 - Communications mails to be treated as stored communication Assistance for Law Enforcement like e-mail. Voice mail can be intercepted Act with a simple search warrant, rather than a The passage of the Communications wiretap order. The USA PATRIOT Act also Assistance for Law Enforcement Act weakens privacy of computer information (CALEA)62 in 1994 marked the next major such as IP addresses,65 which can be traced legal milestone for electronic surveillance. to a specific location. Tracing IP addresses, CALEA clarifies that telecommunications as well as phone calls (on phones with or carriers must cooperate with law without GPS capabilities) enables law enforcement agents with all proper enforcement to accurately pinpoint the permissions (warrants or court orders) to aid location of a suspect, if they are using the in the lawful interception of located device. Generally, as well as in communications. CALEA requires terms of GIS applications, the USA telecommunications system design that PATRIOT Act is a step towards national enables governments to intercept security, and away from individual privacy. communications without interfering with This shift was generally supported soon subscribers’ services, and to assure after the events of September 11th, however interceptions remain undetectable. These as time passes, support for the decrease in requirements prompted most carriers to privacy has lessened.66 restructure their systems to authorize warrants to potentially pinpoint a person based on the location of their cell phone.63 61 phones to be located in case of an emergency, caused There is some controversy over what defines stored communications, and communication in transit, concern among privacy advocates. See Chris Oakes, because of the nature of the Internet, and computers. ‘E911’ Turns Cell Phones into Tracking Devices, Virtually everything that is done on a computer is Wired, January 6, 1998, stored for at least a miniscule amount of time on http://www.wired.com/science/discoveries/news/1998/ computer’s RAM, or if a message is being sent on the 01/9502 (last visited July 17, 2007). 64 internet, it may be stored for a short period of time on Pub. L. No. 107-56, 115 Stat. 272 (2001). 65 servers. See United States v. Councilman, 245 F. Id. § 210. Supp. 2d 319 (D. Mass. 2003). 66 The Patriot Act and Civil Libertieis, The Gallup 62 47 U.S.C §§ 1001-1021 (1998). Poll, February 16-17, 2004, 63 The passage of CALEA took place around the same http://www.galluppoll.com/ content/?ci=5263&pg=1 time as the FCC’s ‘E911’ rule, which would allow cell (last visited July 17, 2007). 10
  • 11. Ch.5 - Balancing the Concern and Enthusiasm for Emerging Geographical Information Systems (GIS) as Technologies Proliferate (Bagby/Tishman) 5.2.6 - State Laws but more states71 can be expected to follow While there are many federal laws suite. which can be applicable to GIS GPS legislation is also more specific in technologies, some State laws are beginning some states than on the federal level. to address the issues more thoroughly. Some Washington is one example of a state in state statutes directly address RFID issues. which the courts have held that a warrantless Furthermore, the review of GPS tracking GPS surveillance violates the state’s surveillance has led to some different constitutional protection against outcomes in state courts when compared unreasonable search and seizure.72 In State with the federal courts. Some states more v. Washington73 the Washington Supreme strongly protect privacy, while others are court held that GPS monitoring is an more concerned with security viewing intrusion to private affairs: security and privacy as irreconcilable trade- In this age vehicles are used to offs.67 The following survey of the state take people to a vast number of statutory coverage of GIS technologies places that can reveal preferences, provides some insight into the potential alignments, associations, personal future treatment of such technologies by ails and foibles. The GPS tracking federal courts. devices record all of these travels, In 2006, Wisconsin became the first and thus can provide a detailed state to officially ban forcible insertion68 of picture of one's life.74 RFID chips in humans.69 Although human Many states are taking different stances implantation is done on a voluntary basis on electronic surveillance in general, as well today, the Governor, James Doyle, wanted as GIS applications such as RFID and GPS. to take a proactive approach to assure that The expansive nature of these technologies forcible insertion did not become an issue in has prompted some states to take action, and the future. One of the main concerns the success of programs on the state level regarding forcible human implantation is could be an indicator of potential success on that it will be used for immigrants coming a federal level in years to come. Given the into America, for validation purposes at controversial nature of these new borders and worksites. In April, 2007, North technologies, many bills have been proposed Dakota followed in Wisconsin’s footsteps to and are in the various stages of progress become the second U.S. state to ban forcible through the legislative process. implantation.70 Support for these laws varies, command=viewArticleBasic&taxonomyId=15&article Id=9016385 (last visited July 17, 2007). 67 71 See e.g, John W. Bagby, Chapter XII: The Public The issue has received some attention in California, Policy Environment of the Privacy-Security and several bills are in various stages of development. Conundrum/Complement, in TRATEGIES AND POLICIES IN See Edwin Garcia, Raising Privacy Alarm over RFID DIGITAL CONVERGENCE (Sangin Park ed., 2007). Chips, San Jose Mercury News (June 19, 2007), http:// 68 See infra § 5.3.2. ? www.mercurynews.com/ci_6175301 (last visited July 69 Wis. 2005 Act 482, § 1, eff. June 14, 2006 available 17, 2007). 72 at http://www.legis.state.wi.us/2005/data/ The Court found that warrantless GPS surveillance acts/05Act482.pdf (last visited July 17, 2007). See also is a violation of article 1, section 7 (WASH CONST. art. Marc Songini, Wisconsin Law Bars Forced RFID 1, § 7.) of the Washington State Constitution, which Implants, Computer World (June 12, 2006), states: http://www.computerworld.com/action/ article.do? No person shall be disturbed in his private command=viewArticleBasic&articleId=111542 (last affairs, or his home invaded, without visited July 17, 2007). authority of law. 70 ND. 12.1-15-06. available at The warrant requirement will protect citizens from http://www.legis.nd.gov/cencode/t121c15.pdf (last intrusive government surveillance. In this case, visited July 17, 2007). See also Marc Songini, N.D. however, warrants were properly attained, so the bans forced RFID chipping, April 12, 2007, Computer evidence was admitted. 73 World, State v. Jackson, 150 Wash.2d 251 (Wash. 2003). 74 http://www.computerworld.com/action/article.do? Id at 262. 11
  • 12. Ch.5 - Balancing the Concern and Enthusiasm for Emerging Geographical Information Systems (GIS) as Technologies Proliferate (Bagby/Tishman) 5.3 - Uses and Privacy Concerns a “bird dog” on a vehicle for police of GIS Technologies investigations. 79 There are many different uses for GIS Some types of tracking are still technologies, each can provide some insight constitutional even without a warrant, due to into the different privacy and legal issues the limited expectation of privacy on public related to these technologies. GIS roads. For example, on a highway, a driver technologies are used to track cars and knows that the road they are on, the people; they are used for toll payment, in direction in which they are driving, the make consumer products, and much more. RFID and model of the car, the date and time of and GPS are gaining popularity, and passage and their the license plate can be deployed for convenience and efficiency in a determined in plain view by anyone using wide range of applications. In addition to the direct visual observation. Police officers can growing uses of RFID and GPS, other watch cars drive by, as can toll booth seemingly unrelated technologies are being workers. This has given officers a great deal used for similar purposes. Each application of freedom in past cases. For example in of these technologies has its own set of U.S. v. Knotts,80 police used a beeper to find unique privacy issues. 79 “The GPS device is similar to a traditional tracking device sometimes called a "bird dog," but GPS 5.3.1 - Vehicle Tracking provides more precise and detailed information.” See Rob Cerullo, GPS Tracking Devices and the Frequency transmitting devices75 have Constitution, The Police Chief Magazine, January been used by militaries for vehicle 2004, http://policechiefmagazine.org/magazine/ identification and location since World War index.cfm? fuseaction=display_arch&article_id=179&issue_id=1 II.76 Today, the technologies are much more 2004 (last visited July 17, 2007). efficient, and are used by civilians as well as 80 United States. v. Knotts, 460 U.S. 276 (1983). by militaries. Radio transmitters and GPS Minnesota law enforcement agents suspected that devices, among other technologies, can be Armstrong was buying chloroform to manufacture used for vehicle tracking. GPS devices that illegal drugs. Without a warrant, law enforcement agents placed a radio transmitter inside a chloroform are used for navigation can, in some container in order to track Armstrong with the circumstances, be used for vehicle tracking. "beeper" and a monitor. Armstrong went to Petschen's Electronic Toll Collection (ETC) devices house, where the bucket was switched to his car. The can also be used to determine the officers then used the beeper to trace Petschen's car to whereabouts of a vehicle.77 This concerns Knotts' secluded cabin in Wisconsin, where the activities were monitored over a three day period. some drivers; however drivers on public Thereafter, law enforcement agents obtained a search roads have a limited expectation of warrant, and discovered that Knotts was using the privacy.78 chemicals to produce amphetamines. Knotts was One area of vehicle tracking that has convicted after his motion to suppress the evidence obtained with the monitor was denied. The Court of caused some controversy is the use of GPS Appeals reversed holding that warantless monitoring and radio transmitters by police officers or the vehicle with a beeper was prohibited by the 4th employers to either track the path of a car, or Amendment. to locate a device. Many issues have arisen The Supreme Court reversed this holding, from the practice of putting what’s known as finding that any observations aided by the use of the beeper could have been hypothetically made from direct visual observations of Petschen's car throughout the public streets. They held that one does not have a reasonable expectation on a public street, where 75 anyone who looks can See the details of the suspect’s Including any device that transmits receives a travel. The 4th Amendment was not designed to frequency, such as RADAR, GPS and RFID. prevent technological innovations from aiding law 76 See supra IFF – Identification Friend or Foe, note enforcement officers. 15. “Nothing in the Fourth Amendment 77 See supra Caldwell, note 6. prohibited the police from augmenting the 78 See infra § Katz’ progeny, expectation discussion. sensory faculties bestowed upon them at 12
  • 13. Ch.5 - Balancing the Concern and Enthusiasm for Emerging Geographical Information Systems (GIS) as Technologies Proliferate (Bagby/Tishman) a drug manufacturing operation, and this Some states have independent positions was not found unconstitutional, because on vehicle tracking. Consider, for example, anyone driving on the roads could have State v. Jackson, in which the Washington verified the final destination of the vehicle. Supreme Court found that tracking with a The Knotts decision is frequently cited in GPS device is too intrusive to be done support of tracking vehicles on public without a warrant.83 GPS devices have also roads.81 In U.S. v. Karo,82 however, it was been used to track employees.84 held that the warrantless use of a tracker While police tracking of vehicles violates the 4th Amendment if the tracker is through added devices (e.g., beepers, GPS) used for monitoring within a private has caused some controversy, vehicle dwelling. surveillance can be done without attaching devices to the suspect’s vehicle. Many cars birth with such enhancement as science and information that could not have been obtained through technology afforded them in this case.” Id at visual surveillance without a physical intrusion. A 276. DEA agent without a warrant is not authorized to enter Additionally, there is no evidence that the beeper was a suspect’s home to assure that there is ether inside, so used to monitor any movement within the walls of the therefore they cannot use technology to essentially do cabin, and therefore physical trespass did not take the same thing. place. Even without the use of technology, an officer Regardless of the holding that the tracking would have been able to confirm that the car pulled of the beeper in the home was a violation of the 4th into the private lot. Amendment, the evidence (the ether) was not 81 For example, See United States v. Moran, 349 suppressed, because the bucket was also found in a F.Supp.2d 425 (2005). locker in a storage facility, and the container was 82 U.S. v. Karo, 468 U.S. 705 (1984). Agents of the identified based on the smell of ether inside the locker. Drug Enforcement Administration (DEA) installed a The findings in U.S. v. Knotts still allow beeper tracking device in a 50 gallon barrel of ether ordered tracking to follow transportation on a public road. by Karo, after an informant told them that the ether Reconsidering the search warrant, it was found that was to be used to extract cocaine from clothing even without considering the confirmed location of the imported to the United States. They followed Karo to ether within the home, there was still enough his home with the can, and monitored it as it traveled “untainted” information for a search warrant. 83 to two different homes, including that of Horton. It State v. Jackson, 150 Wash.2d 251, 76 P.3d 217 then traveled to two different lockers jointly rented by (Wash. 2003). Jackson called 911 to report the Horton and Harley. After moving from locker to disappearance of his daughter Veniree on October 18, locker, the can traveled to Rhodes' home, and the 1999. Upon investigation, blood was found in her bed, beeper was used to eventually determine the location and the investigators became suspicious that Jackson of the can inside a house rented by Horton, Harley and was involved in the disappearance. They obtained a Steele. A warrant was obtained and cocaine was found warrant to search his home and impound two of his in the home where Steele, Horton, Harley and Roth cars. A second 10-day warrant was then obtained to were arrested. The District Court found that the attach GPS to the vehicles while in impound. When warrant to install the beeper was invalid. The police the vehicles were returned, Jackson was not informed appealed, but they did not argue that there was no of the GPS device installations. A third warrant was valid warrant when they installed the beeper. The then obtained to add another 10 days to the Court of Appeals affirmed, but they agreed that a surveillance scheme using the GPS devices. warrant was needed in order to install the beeper and The GPS data revealed that the truck had to monitor it in private dwellings. They found that the stopped at a remote location on a logging road for 45 warrant obtained to search the house was “tainted by minutes. They also confirmed a few other stops, the Government's prior illegal conduct,” so the including at a storage unit. When investigators visited evidence was suppressed. the logging road site where the victim’s body was The Supreme Court then reversed because found in a shallow grave. More evidence was found at the information actually determining the location of another of the stops, further connecting him to the the can inside a private dwelling is a violation of the murder (duct tape, plastic bags, hair, blood, etc.). After 4th Amendment. They found that a warrant wasn't additional suspicious activity, law enforcement actually needed to install the beeper on the can, since obtained another warrant for Jackson’s arrest. they were granter permission from the informant, but Article 1, §7 of the Washington State they went too far when they tracked information about Constitution is more protective than the 4th the can when it was actually inside the home. While Amendment to the U.S. Constitution, and protections this does not constitute a “search and seizure,” it does people from being “disturbed in his private affairs,” violate the 4th Amendment because it revealed and from having their home invaded “without 13
  • 14. Ch.5 - Balancing the Concern and Enthusiasm for Emerging Geographical Information Systems (GIS) as Technologies Proliferate (Bagby/Tishman) already come with GPS devices that could seems clear that many drivers are unaware be used for tracking, with the right of these capabilities, and this should have a authorization, or in emergency situations. direct impact on any limitation the law For example, the General Motor’s OnStar imposes on their reasonable expectation of system gives operators the ability to use the privacy while operating their vehicles. GPS and cellphone components of OnStar to determine the precise location of the vehicle. 5.3.2 - Human Tracking With a warrant, this information could be Much of the fear about GIS technologies used by law enforcement . Unfortunately, is that it will facilitate human tracking by there is also vulnerability in such systems to unauthorized as well as authorized the unauthorized use by hackers who could observers. Human tracking is common today conceivably locate a vehicle without for uses as varied as tracking convicted sex authority. Vehicle tracking is also made offenders, to tracking friends and family possible by ETC systems such as EZ-Pass members with cell phones.86 Human and FasTrak. These systems usually utilize tracking technology is no longer science RFID technology, and they have GIS fiction; anyone with a cell phone can be implications because they record where a traced to a location, and some people have vehicle is at a given time, as well as the RFID chips implanted into their bodies (e.g., direction in which the vehicle is driving and arms).87 The expansive popularity of human the timing of passing through toll booths.85 tracking has brought about substantial Traffic cameras at stoplights and on roads controversy. are vulnerable to such uses in similar ways, Cell phones are one of the most widely such as to match a vehicle with a location at available methods of human tracking. Both a particular time. Many new cars come cellular triangulation88 and GPS capabilities equipped with GPS navigation systems, can make human tracking a possibility. ETC systems, and other technologies that These capabilities, when deployed under a can facilitate the tracking of vehicles. It valid court order, can enable police to track suspected individuals. Both CALEA and the authority of law.” It was determined that having a GPS USA Patriot Act authorize this type of device on a car for 2 weeks provides information that could not feasibly be obtained from simply tailing the surveillance. These tracking capabilities are vehicles. Also the GPS device was not just a “sense also useful for safety and convenience. augmenter,” because it gave information about the Some phone plans allow for GPS tracking of history of the cars locations, compared to binoculars young children, and some businesses which simply enhance the officer's vision at one instant. The court also found that the GPS device is an provide tracking devices for cars, keys, and intrusion to private affairs. practically anything.89 This type of tracking In this age vehicles are used to take people can be helpful in emergency situation, for to a vast number of places that can reveal example a GPS device on a phone allows preferences, alignments, associations, 911 operators to trace a call.90 personal ails and foibles. The GPS tracking devices record all of these travels, and thus 86 can provide a detailed picture of one's life. GPS devices in phones can be used by parents to Id. at 262. track young children, on special phones. 87 Warrantless GPS tracking was held a violation of See supra VeriChip Corporation. 88 Article 1, § 7 of the Washington State Constitution. Cellular triangulation is used to find the location of The warrant requirement protects citizens from a mobile phone relative to the nearest cellular towers. intrusive government surveillance. In this case, See e.g., What is Triangulation?, Search Networking, however, warrants were properly attained, so the http://searchnetworking.techtarget.com/sDefinition/ evidence was admitted. 0,,sid7_gci753924,00.html (last visited July 17, 2007). 84 89 See infra ?.?.? (SECTION on employment For example, See Global Tracking Group, restrictions) ; Elgin v. St. Louis Coca-Cola Bottling http://www.globaltrackinggroup.com (last visited July Co. 2005 WL 3050633 (E.D. Mo. 2005). 18, 2007). 85 90 Based on which lane a car is in, their direction can The Enhanced 911, or E911 rule was designed to be determined. provide 911 operators with information about cell 14
  • 15. Ch.5 - Balancing the Concern and Enthusiasm for Emerging Geographical Information Systems (GIS) as Technologies Proliferate (Bagby/Tishman) GPS technologies are also used to track identification information.97 This has led to the location of sex offenders,91 in order to serious debate on the human implantation deter them from visiting restricted areas and issue, and some states have taken steps to to facilitate tracking in case the are prevent forcible human insertion.98 While identified as suspects who commit further human insertion is certainly an affective crimes. This technology is controversial for method of human tracking, RFID chips on privacy reasons and it is argued that it does other media have caused some controversy little to prevent future sex offenses,such as as well. those committed in non-restricted areas.92 Outside of human implants, human While GPS devices are popular for identification and tracking can be tracking globally, RFID tags are very accomplished by many other means, popular, and can be used for tracking including embedding RFID tags on humans, as well as for storing personal identification cards. RFID tags are information. RFID tags have been used for commonly embedded on employee cards for some time to keep track of animals,93 but the accessing buildings and rooms.99 technology is becoming more popular for Employees, such as security guards, can be human implantation. VeriChip is an FDA monitored via RFID tags on their badges, or approved RFID chip that is about twice the worn like a watch.100 RFID tags are also length of a grain of rice, and can be placed in Passports,101 and could potentially implanted into humans, usually on their be embedded in currency.102 In 2008, arm.94 This has caused immense controversy Washington will pilot a program for for multiple reasons, including fear of mass facilitating travel to and from Canada, with surveillance by governments, as well as RFID chips embedded in Driver’s unlawful interception of data stored on the Licenses.103 All of these applications make tags. People have been implanted with human tracking possible, and with RFID VeriChips for a wide range of uses, ranging tags in many consumer products, one can from storing important medical only begin to imagine what could be information,95 to identification and payment possible without the right regulations. for VIPs at nightclubs.96 The technology has also been suggested for immigrants and 5.3.3 - Consumer Products guest workers in America, for storage of RFID tags have been predicted to replace UPC barcodes for some time, due to phones that call for emergencies. See Enhanced 911, 97 FCC, http://www.fcc.gov/911/enhanced/ (last visited See Bill Christensen, Proposal to Implant Tracking July 18, 2007). Chips in Immigrants, LiveScience, May 21, 2006, 91 http://www.livescience.com/technology/060531_rfid_ See supra Koch. 92 Id. chips.html (last visited July 18, 2007). 98 93 Tags are used to keep track of the location of North Dakota and Wisconsin have barred forcible animals, such as cattle and other captive animals, as human insertion of RFID chips. See supra Songini. 99 well as some animals in the wild. For example, the See supra Enterprise Employee Smart Card Use. 100 USDA uses RFID to track a neurological disease in See Wi-Fi and RFID Used for Tracking, BBC deer and elk. See USDA Tags Deer to Track Disease, News, May 25, 2007, http://news.bbc.co.uk/2/hi/ RFID Journal, December 8, 2004, technology/6691139.stm (last visited July 18, 2007). http://www.rfidjournal.com/ 101 See Joris Evers, RFID Passport Takes Off, October article/articleview/1277/1/1/ (last visited July 18, 26, 2006, CNET News, 2007). http://news.com.com/2100-7348_3-6130016.html (last 94 See supra VeriChip Corporation. visited July 18, 2007). 95 102 See US Family Gets Health Implants, May 11, 2002, See RFID Applications, Tiny Chips for Currency?, BBC News, http://news.bbc.co.uk/2/hi/health/ RFID Gazette, March 5, 2007, 1981026.stm (last visited July 18, 2007). http://www.rfidgazette.org/2007/03/rfid_applicatio.ht 96 See Barcelona Clubbers Get Chipped, BBC News, ml (last visited July 18, 2007). 103 September 29, 2004, http://news.bbc.co.uk/2/hi/ See supra Enhanced Driver Licenses and ID technology/3697940.stm (last visited July 18, 2007). Cards. 15
  • 16. Ch.5 - Balancing the Concern and Enthusiasm for Emerging Geographical Information Systems (GIS) as Technologies Proliferate (Bagby/Tishman) many efficiency advantages.104 For example, universal acceptance. GIS technologies in with all selected items RFID tagged and an general offer many useful applications that RFID reader located at checkout, a shopper can benefit society with the right precaution could check out and pay electronically at a and proactive policymaking. cash register without removing any items from the cart. This technology, however, is 5.4 - Conclusion still relatively expensive to make (when The underlying theme with nearly all compared to UPC barcodes), but mass GIS technologies is that they offer a production can be expected to lower these potential benefit to society if they are costs, making RFID tags affordable for controlled in a manner that assures that they identification of consumer products. One won’t be abused. It is necessary to protect key difference with RFID tags and barcodes these technologies from abuse for two major is that RFID tags can store a unique reasons: first, to protect the privacy of users, identifier105 for each product, rather than just and second, to protect the technologies from for each line of products. This improves being rejected as a result of backlash. There supply chain efficiency; however it also must be a proper balance of privacy, security causes a great deal of controversy due to and utility in order for GIS applications to inherent privacy concerns. become universally accepted. Consumer group CASPIAN (Consumers Against Supermarket Privacy Invasion And 5.4.1 - Hypothetical Scenarios Numbering) proposed legislation to regulate In order to examine the potential of RFIDs, the RFID Right to Know Act of these technologies, it is helpful to imagine 2003. If enacted, this proposal would require hypothetical scenarios; an ideal situation, a consumer products with RFID tags to “bear problematic situation where privacy is labels stating that fact, to protect consumer intruded, and a problematic situation where privacy, and for other purposes.”106 The expansive privacy imposes social cost or group is involved in an initiative to boycott security risks. The ideal situation will Gillette products because of perceived unfair illustrate a perfect balance of security, practices using RFID tags.107 Consumers privacy and utility, and the two problematic fear that people with RFID readers might be situations will illustrate instances where the able to gain personal information that they “balance” has shifted too far in one might not wish to divulge, such as the direction. contents of their pockets or backpack, books In the ideal situation, someone could use they are carrying or the size of their a GPS device in their car to navigate, and to clothing.108 These concerns will likely need be found in an emergency rescue situation. to be addressed before RFID tags reach They would be able to benefit from this 104 See New RFID Tag Standard Poised to Replace technology without risking invasion of Barcode on Every Consumer Product, RFID News, privacy by police profiling, without a proper February 1, 2004, warrant. They would not risk being http://www.rfidnews.org/library/2004/02/01/new-rfid- automatically ticketed for driving 1 mile an tag-standard-poised-to-replace-barcode-on-every- consumer-product/ (last visited July 18, 2007). hour over the speed limit, based on 105 See Group Proposes RFID Privacy Law, RFID information calculated with their GPS Journal, June 18, 2003, device,109 nor would they be ticketed for a http://www.rfidjournal.com/article/articleview/466/1/1 similar offense based on calculations made / (last visited July 18, 2007). 106 See RFID Right to Know Act of 2003, CASPIAN, 108 See All Aboard! RFID System is on Track!, The http://www.nocards.org/rfid/rfidbillsummary.shtml Why Files, http://whyfiles.org/212elect_ID/4.html (last visited July 18, 2007). (last visited July 18, 2007) (citing Lee Tien); See 107 See Boycott Gillette, December 22, 2003, Simson Garfinkel, An RFID Bill of Rights, October http://www.boycottgillette.com/pressrelease12-22.htm 2002, http://www.techreview.com/Infotech/12953/ l (last visited July 18, 2007). (last visited July 18, 2007). 16
  • 17. Ch.5 - Balancing the Concern and Enthusiasm for Emerging Geographical Information Systems (GIS) as Technologies Proliferate (Bagby/Tishman) with the RFID enabled ETC device.110 They with RFID tagged consumer products in would, however, be able too use their ETC their pocket or purse could be a target for a device to pay for tolls, and other payments burglar with and RFID reader. If RFID tags made from their vehicles (car wash, drive were embedded in Driver’s Licenses, through fast food,111 etc.). Whenever 911 consumer products, and currency, a thief were dialed from a cell phone, the GPS could potentially notice that a passerby has device on the phone would assure efficient $200 dollars in their wallet, an mp3 player rescue. At the checkout of their grocery and a camera in their pocket, and they could store, they wouldn’t need to remove items access their address from the Driver’s from their cart in order to pay for them, License. In this hypothetical invasive because all of this can be calculated by an situation, one can imagine that the RFID reader which can determine exactly government could use GPS identifiers to what is in their cart at a given time.112 This know where all citizens are at all times. would save them time, and the grocery store They could use their information to create a would save money, potentially eventually detailed profile of every citizen: what gas lowering prices on groceries. Upon leaving station they use, where they eat lunch on the store, the RFID devices would be Tuesdays, etc. This information could then immediately and automatically deactivated, be used for unconstitutional profiling. If to assure privacy. International travel would everyone’s identification card came with an be made easier and safer because of RFID RFID tag that was not properly protected tags that store detailed information on from unwanted interception, someone with Passports. This information would be the right resources could potentially access protected so that only authorized officers anyone’s address, age, or even information could extract it. Clearly, the list of potential about religion, nationality, political benefits of these technologies could go on affiliation, etc. Just as the benefits of these and on. technologies are seemingly endless, so are If the right steps weren’t taken to protect the potential privacy invasions. the privacy of the end-users of these Excessive protection of privacy, technologies, one can imagine the potential however, could limit law enforcement invasions. Someone walking down the street agents from protecting innocent citizens, and from preventing crime. A sex offender that 109 AirIQ provides a service that can automatically is not tracked with GPS could potentially ticket drivers exceeding speed limits. In one example, wait outside of an elementary school each James Turner was charged $450 for “going at speeds day as school lets out, commit crimes that in excess of 90 mph on three separate occasions,” at $150 each occasion. See Colleen Van Tassell, GPS: could have been prevented if they were Gotta Pay for Speeding, Free Republic, June 19, 2001, tracked by the GPS devices that are http://www.freerepublic.com/forum/a3b2fb5d83677.ht currently used in some states,113 and flee, m (last visited July 18, 2007). continuing to commit these types of crimes 110 With ETC systems, automated ticketing could be before being caught.114 Police could have made possible from calculations made based on the distance between different toll booths, divided by the serious reason to suspect someone in a time it took for a vehicle to travel that distance. See missing person’s case, and would not be supra Caldwell. able to place a tracking device on their 111 McDonald’s has experimented with payments via vehicle to help them locate the missing EZ-Pass and SpeedPass. See Arik Hesseldahl, Fast 113 Food Eats and Runs, Forbes.com, August 21, 2002, See supra Koch. 114 http://www.forbes.com/2002/08/21/0821cashless.html Id. “Several of the laws are named after Jessica (last visited July 18, 2007). Lunsford, a 9-year-old Florida girl who was 112 For example, IBM has developed a number of kidnapped, raped and killed in February 2005. The RFID applications for the retail industry. See RFID man charged with killing her was a convicted sex for Stores from IBM, IBM, offender who hadn't reported that he lived across the http://www-03.ibm.com/industries/retail/doc/content/s street from her family. After he fled, it took almost a olution/1040471101.html (last visited July 18, 2007). month to find him.” 17
  • 18. Ch.5 - Balancing the Concern and Enthusiasm for Emerging Geographical Information Systems (GIS) as Technologies Proliferate (Bagby/Tishman) person. They would instead deploy an officer to follow the suspect, and the suspect may not return to the victim until he or she knows that they are no longer being followed. Many serious crimes could be solved or prevented with efficient use of GIS technologies; however excessive privacy protections could potentially limit these benefits. 5.4.2 - Balancing the Scale In order to assure the benefits of GIS technologies, while effectively preventing privacy invasions, there are a couple of things that must be done. First and foremost, public policies and laws must be designed with the potential problems in mind. While these technologies should not be used for profiling, or for other invasive uses by law enforcement and the government, these communities should be able to benefit from the technology as well. Advances in technology should be able to lead to advances in the efficiency of law enforcement. Beyond the responsibilities of the government to assure that these technologies are not abused, is the responsibility of technology designers to consider security, and fidelity of information. Designers have a responsibility to assure that unwanted intruders will not be able to access, intercept, or tamper with the sensitive information that could be stored on RFID tags, GPS devices, cell phones, etc. Much of the preparation for successful integration of these technologies into our society falls in the hands of the government and the designers; however that’s not to say that end users don’t have any responsibility in protecting themselves from potential invasions. With all of the emerging technologies and issues, it is important to be aware of the risks and benefits of each. If policymakers, technology designers, and end users take a proactive approach to protecting the fidelity of personal information, these technologies could potentially greatly benefit society. 18