Location Tracking by Police: The Regulation of ‘Tireless and Absolute Surveillance’

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

Location Tracking by Police: The Regulation of ‘Tireless and Absolute Surveillance’

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

GPS Tracking Technology: The Case for Revisiting Knotts and Shifting the Supreme Court\u27s Theory of the Public Space Under the Fourth Amendment

The Fourth Amendment to the U.S. Constitution guarantees freedom from government intrusion into individual privacy. More than two hundred years after the time of the Framers, however, the government possesses technologies, like GPS tracking, that allow law enforcement to obtain ever-greater amounts of detail about individuals without ever setting foot inside the home—the area where Fourth Amendment protections are highest. Despite the dangers GPS tracking and other technologies present to individual privacy, the U.S. Supreme Court\u27s Fourth Amendment jurisprudence frequently fails to acknowledge any semblance of privacy in the public sphere. This Note argues that rather than defining Fourth Amendment privacy based on purely physical boundaries, a proper analysis would protect those features of society that provide privacy. By recognizing that features other than physical boundaries can generate privacy, this analysis would ensure the Fourth Amendment continues to preserve individual privacy even in the face of sophisticated new technologies

Surveillance, big data and democracy: lessons for Australia from the US and UK

This article argues that current laws are ill-equipped to deal with the multifaceted threats to individual privacy by governments, corporations and our own need to participate in the information society. Introduction In the era of big data, where people find themselves surveilled in ever more finely granulated aspects of their lives, and where the data profiles built from an accumulation of data gathered about themselves and others are used to predict as well as shape their behaviours, the question of privacy protection arises constantly. In this article we interrogate whether the discourse of privacy is sufficient to address this new paradigm of information flow and control. What we confront in this area is a set of practices concerning the collection, aggregation, sharing, interrogation and uses of data on a scale that crosses private and public boundaries, jurisdictional boundaries, and importantly, the boundaries between reality and simulation. The consequences of these practices are emerging as sometimes useful and sometimes damaging to governments, citizens and commercial organisations. Understanding how to regulate this sphere of activity to address the harms, to create an infrastructure of accountability, and to bring more transparency to the practices mentioned, is a challenge of some complexity. Using privacy frameworks may not provide the solutions or protections that ultimately are being sought. This article is concerned with data gathering and surveillance practices, by business and government, and the implications for individual privacy in the face of widespread collection and use of big data. We will firstly outline the practices around data and the issues that arise from such practices. We then consider how courts in the United Kingdom (‘UK’) and the United States (‘US’) are attempting to frame these issues using current legal frameworks, and finish by considering the Australian context. Notably the discourse around privacy protection differs significantly across these jurisdictions, encompassing elements of constitutional rights and freedoms, specific legislative schemes, data protection, anti-terrorist and criminal laws, tort and equity. This lack of a common understanding of what is or what should be encompassed within privacy makes it a very fragile creature indeed. On the basis of the exploration of these issues, we conclude that current laws are ill-equipped to deal with the multifaceted threats to individual privacy by governments, corporations and our own need to participate in the information society

The socio-materiality of parental style: negotiating the multiple affordances of parenting and child welfare within the new child surveillance technology market

Purpose – This study aims to offer understanding of the parent – child relationship by examining, through a socio-material lens, how one aspect of the new child surveillance technology market, child GPS trackers (CGT), are rejected or adopted by families, highlighting implications for child welfare, privacy and children’s rights policy. Design/methodology/approach – The authors gathered netnographic data from a range of online sources (parenting forums, online product reviews, discussion boards) that captured parental views towards the use of CGT and stories of the technology in use and theorize the data through application of a novel combination of neutralisation and affordance theory. Findings – The research reveals how critics of CGT highlight the negative affordances of such product use (highlighting the negative agency of the technology). Parental adopters of CGT, in turn, attempt to rationalize their use of the technology as a mediator in the parent – child relation through utilisation of a range of neutralisation mechanisms which re-afford positive product agency. Implications for child welfare and policy are discussed in the light of those findings. Originality/value – The paper presents an empirical, qualitative understanding of parents negotiating the emergence of a controversial new child-related technology – CGT – and its impact upon debates in the field of parenting and childhood; develops the theory of parental style towards parental affordances, using a socio-material theoretical lens to augment existing sociological approaches; and contributes to the debates surrounding child welfare, ethics, privacy and human rights in the context of child surveillance GPS technologies

Technology-Facilitated Domestic Abuse in Political Economy: A new theoretical framework

This paper presents a new theoretical framework around technology-facilitated domestic abuse (TFDA) in identifying four distinct types of omnipresent behaviour. Perpetrators are increasingly drawing upon networked technologies likes smartphones, social media and GPS trackers in monitoring, controlling and abusing survivors. There is considerable academic literature developing in response to this. Whilst this scholarship is valuable, this paper argues that TFDA must be understood as a neoliberal manifestation of patriarchal legacies of misogyny and sexism. A failure to recognise this will serve to prioritise abusers’ freedom to do harm over rights of survivors to be protected from harm